Delhi District Court
Cbi vs (1)Virender Singh on 19 September, 2014
IN THE COURT OF SHRI P.S. TEJI : DISTRICT & SESSIONS
JUDGE (EAST) : SPECIAL JUDGE (CBI), KARKARDOOMA
COURTS, DELHI
AC No.01/2011
Unique Case ID No.02402R0003902011
FIR No.RC32(A)/2010
Under Sec. 120B IPC r/w Section 7
and 13(2) r/w Sec. 13(1)(d) of PC Act.
CBI Versus (1)Virender Singh
S/o Sh. Devi Singh
R/o Vill. Kasanda, Teh. Gohana,
Distt. Sonipat, Haryana.
(2)Vijay Kumar Varma
S/o Sh. Vilayati La Varma
R/o 13/304, Geeta Colony,
Delhi110031.
Date of Institution : 06.01.2011
Date of judgment reserved : 02.09.2014
Date of judgment : 16.09.2014
JUDGMENT
Two accused persons, namely, Virender Singh and Vijay Kumar Varma have been sent to face trial by the Anti AC No.01/2011 CBI Vs. Virender Singh etc. Page 1 of 64 Corruption Branch of the CBI, for the offences punishable under Section 120B IPC read with Section 7 and 13(2) read with Section 13(1)(d) of PC Act.
2 At the time of commission of the offence, accused Virender Singh was posted as Constable in Police Station Geeta Colony, Delhi, whereas accused Vijay Kumar Varma is a private person.
3 Briefly stating, the facts of the case are that a written complaint dated 13.07.2010, Ex.PW4/B was made by Harish Kumar (PW4) (hereinafter shall be referred as complainant) to the CBI to the effect that he was resident of House No.3/125, Geeta Colony, Delhi and had been a TSR driver. Police had registered 12 cases against him in different police stations, out of which 8 cases were registered in PS Geeta Colony. All the cases were pending trial in Court. Due to pendency of such cases, accused Virender posted as Constable in PS Geeta Colony was demanding bribe of Rs.5,000/ from the complainant. Accused had threatened the complainant that if he had not paid the bribe, then complainant would be declared B.C. and would got lodge more cases against him. Since the complainant did not want to pay the bribe, he lodged the complaint to the CBI. AC No.01/2011 CBI Vs. Virender Singh etc. Page 2 of 64 4 The complaint Ex.PW4/B was marked to Inspector Vivek Prakash (PW12). Independent witness Bhoopendra Kumar (PW13) was arranged. Complainant (PW4) was directed to contact accused Virender Singh from his mobile phone no.9899877657 on mobile phone no.9250135811 of accused, but the said call was did not pick. At about 1430 hours, complainant received call from accused which was recorded in digital recorder. During conversation, accused Virender Singh demanded bribe amount of Rs.5,000/ from the complainant. The complainant also recorded said conversation in the memory card of his mobile phone. A verification report Ex.PW4/A was prepared. The recorded conversation was transferred into CD. 5 FIR Ex.PW4/C of the present case was registered and its investigation was assigned to Trap Laying Officer Insp. Anand Sarup (PW10). A trap team consisting of TLO, Insp. Rohit Kumar, SI Nikhil Malhotra, supporting staff, complainant and independent witnesses Saibal Saha (PW11) & Mewa Lal (PW14) was formed. Complaint was shown the independent witnesses. The complainant produced 10 GC notes of Rs.500/ denomination and their numbers were recorded in handing over memo Ex.PW4/D. GC notes were treated with phenolphthalein powder. Insp. Rohit Kumar gave a AC No.01/2011 CBI Vs. Virender Singh etc. Page 3 of 64 practical demonstration on the significance of chemical reaction between phenolphthalein powder with solution of Sodium Carbonate by applying the powder on GC notes. Sh. Mewa Lal was directed to touch the powder treated notes and thereafter to dip his fingers in the colourless solution of Sodium Carbonate. On doing so, the colourless solution turned Pink. The said GC notes were kept in the left side pant pocket fo the complainant with the directions to hand over the same only on the specific demand of the accused or to any other person as instructed by accused. Sh. Saibal Saha was directed to act as shadow witness; to remain close to the complainant; to overhear the conversation and to see the transaction of bribe. A digital voice recorder was given to the complainant and its functioning was explained to him. The complainant was directed to give signal either by scratching his head with right hand or by giving a Miss call on the mobile phone of TLO.
6 Thereafter, the trap team left CBI office and reached near Sai Baba Mandir, 18 Block, Geeta Colony, Delhi at about 2000 hours. At about 2005 hours, complainant made a call to accused Virender Singh during which he directed the complainant to hand over the bribe of Rs.5,000/ to his coaccused Vijay Kumar, owner of AC No.01/2011 CBI Vs. Virender Singh etc. Page 4 of 64 V.K. Jewellers. The said conversation was recorded. Thereafter, they all reached V.K. Jewellers located at 13/308, Geeta Colony, Delhi. The shop was found locked. The complainant again made a call to accused Virender Singh and informed him that shop was lying locked. After about 5 minutes, accused Vijay Kumar called from his mobile phone No. 9891161258 on the mobile phone of the complainant during which accused Vijay Kumar told that he would be coming in a few minutes outside his shop. The said conversation was recorded. The complainant and shadow witness Saibal Saha proceeded towards the shop of accused Vijay Kumar. On arrival of accused Vijay Kumar, the complainant handed over bribe of Rs.5,000/ to him which he accepted by his right hand and counted the same with both his hands. The CBI team immediately rushed towards the spot and accused Vijay Kumar was caught hold with his wrists; independent witness Mewa Lal recovered tainted GC notes of Rs.5,000/ from right hand of accused Vijay Kumar; both the independent witnesses tallied the number of recovered notes with the numbers mentioned in handing over memo which tallied.
7 Thereafter, right hand fingers and left hand fingers of accused Vijay Kumar were dipped into colourless solution separately AC No.01/2011 CBI Vs. Virender Singh etc. Page 5 of 64 which turned pink. The solutions were transferred to bottles marked RHW (right hand wash) Ex.P12 and LHW (Left hand wash) Ex.P11 and their cloth wrappers are Ex.P13 and Ex.P14. The rough site plans Ex.PW10/E and Ex.PW10/F were prepared. During interrogation, accused Vijay Kumar disclosed that he accepted the bribe amount on behalf of accused Virender Singh. Accused Vijay Kumar was directed to call accused Virender Singh during which he informed that he had accepted Rs.5,000/ from the complainant and was standing near Sai Baba Mandir. The said conversation was recorded.
8 After about 10 minutes, accused Virender Singh along with HC Sohan Pal came near Sai Baba Mandir. Accused Virender Singh was identified by the complainant and was nabbed by CBI team who was trying to flee from the spot. It was decided to carry further proceedings at CBI office. Thereafter, they all reached CBI office. Both the accused were arrested vide personal search cum arrest memos Ex.PW10/A and Ex.PW10/B. Recorded conversation was transferred to CD marked Q2. The memory card of the phone of the complainant was seized. Specimen voice of accused Virender Singh was recorded in CD marked S1 Ex.P17 vide specimen voice AC No.01/2011 CBI Vs. Virender Singh etc. Page 6 of 64 recording memo Ex.PW10/C. Specimen voice of accused Vijay Kumar was recorded in CD marked S2 Ex.P18 vide specimen voice recording memo Ex.PW10/D. The recovered bribe amount of Rs. 5,000/, washes marked RHW and LHW and CDs Q2,S1 and S2 were seized vide recovery memo Ex.PW4/E. 9 Washes were sent to CFSL vide letter Ex.PW8/A where the same were examined by PW8 Dr.N.M.Hashmi vide report Ex.PW8/B. The CDs and cassettes marked Q1, Q2, S1 and S2 were sent to CFSL for examination and same were examined by PW16 Sh. Amitosh Kumar vide report Ex.PW16/A. During investigation, call details of mobile phones of accused persons and complainant were collected. Certified copies of FIRs against complainant were collected from PS Geeta Colony. Sanction Ex.PW2/A for prosecution of accused Virender Singh was accorded by Ms. I.B. Rani, the then DCP(East).
10 After completion of the investigation, the challan was put up in the court where accused persons were supplied with the copies of the chargesheet and the documents of the CBI. 11 The charges under Section 120B IPC read with Section 13(2) read with section 13(1)(d) of the P.C.Act was framed AC No.01/2011 CBI Vs. Virender Singh etc. Page 7 of 64 against both the accused persons. Separate charges U/s 7 and 13(2) read with section 13(1)(d) of P.C.Act were framed against accused Virender Singh. Accused persons pleaded not guilty to the charges framed against them and claimed trial.
12 The prosecution has examined 16 witnesses in support of its case. PW4 Harish Kumar is the complainant. PW1 Vijay Kumar was the owner of mobile phone No. 9250135811. PW2 Ms. I.B.Rani accorded sanction for prosecution of accused Virender Singh. PW3 Ct Kali Charan has stated that mobile phone No. 9990144767 was in his name which he gave to accused Virender Singh for use. PW5 Sh. M.N. Vijayan proved the documents regarding mobile phone no.9250135811. PW6 Sh. Israr Babu proved documents regarding mobile phone no.9899877657. PW9 Sh. Pawan Singh proved documents regarding mobile phone nos.9990144767 and 9891161258. PW11 Sh. Saibal Saha, PW13 Sh. Bhoopendra Kumar and PW14 Sh. Mewa Lal are the independent public witnesses. PW7 ASI Satvinder Singh proved documents of PS Geeta Colony. PW8 Dr. N.M. Hashmi examined the washes, whereas PW16 Sh. Amitosh Kumar examined the voices in laboratory. PW12 Insp. Vivek Prakash verified the complaint. PW10 Insp. Anand Sarup was AC No.01/2011 CBI Vs. Virender Singh etc. Page 8 of 64 the Trap Laying Officer, whereas PW15 Insp. Vijay Yadav was the subsequent IO of the case.
13 The statements of accused persons were recorded under Section 313 Cr.P.C. Accused have either showed their ignorance or have denied the present case against them. They have stated that they are innocent and have been falsely implicated in this case. Accused Virender Singh has stated that he had not demanded any money from the complainant. He was not competent to get anybody declared P.O. or to get a false case registered. He never had any telephonic talks with the complainant. He had nothing to do with mobile phone nos.9990144767 and 9250135811. On 13.07.2010 he was on patrolling duty. Some people in civil dress forcibly stopped the government motorcycle, lifted him and straightaway took him to CBI office and was falsely implicated in this case. He was never associated with investigation of any case of the complainant. The complainant is known criminal of the area against whom several cases were pending in Courts and he used CBI as a tool to terrorize the police officials of PS Geeta Colony not to take any action against his illegal activities in future. Accused Virender Singh opted to adduce defence evidence.
AC No.01/2011 CBI Vs. Virender Singh etc. Page 9 of 64 14 Accused Vijay Kumar Verma has he has been falsely implicated in this case as the complainant had got inimical against him due to quarrel which took place between him and complainant at Gurudwara Singh Sabha when accused demanded his money from the complainant which he owed the accused towards balance of jewellery purchased by him from the accused. Accused Vijay Kumar Verma opted not to lead any defence evidence.
15 In support of his defence, accused Virender Singh examined DW1 HC Manoj Kumar, DW2 Ct. Jitendra Kumar, DW3 SI Jag Mahender Singh, DW4 HC Manoj Kumar, DW5 HC Suresh Kumar, DW6 Dr. Subrat Kumar Chaudhary, DW7 Sh. Ramesh Kumar and DW8 Insp. Jarnail Singh.
16 I have heard learned PP for the CBI as well as ld counsel for accused persons. Written submissions on behalf of accused persons have also been filed. I have also carefully gone through their submissions, evidence and material available on record. Sanction 17 It is argued on behalf of the accused Virender Singh that the sanction Ex.PW2/A accorded by PW2 is invalid for the want of proper application of mind. It is argued that date and signature on AC No.01/2011 CBI Vs. Virender Singh etc. Page 10 of 64 the sanction order are in different ink, PW2 had gone through the report sent by CBI, copy of report u/s 173 Cr.P.C. was not produced before PW2, audio recording was not produced, PW2 did not discuss the nature of duties of accused and PW2 has shown ignorance about perusing of complaint dated 13.07.2010. It is argued that the sanction order is verbatim copy of draft sanction proforma sent by CBI to the office of PW2. In support of these contentions, reliance has been placed on judgment in case of State of Karnataka Vs. Ameer Jan AIR 2008 SC 108 in which it was observed that the sanction was given solely on the basis of report made by I.G. Police. The material collected during investigation was not available before the sanctioning authority. Thus, the sanction was held to be passed without application of mind. Next judgment relied upon is in case of Om Prakash Vs. State & Ors. (CBI) 2009 (3) RCR (Criminal) 293 in which the sanction accorded was held to be invalid as proforma order was put by subordinate officer before sanctioning authority who signed the same and it was observed that there was no application of mind by the sanctioning authority before according sanction. 18 On the other hand, Ld. PP for the CBI has argued that sanctioning authority herself proved the sanction order and it is AC No.01/2011 CBI Vs. Virender Singh etc. Page 11 of 64 settled law that when sanctioning authority himself appears in Court to prove sanction order, unless there is anything brought on record which may vitiate the sanction order, the sanction order has to be taken as proved.
19 Section 19 of the Act deals with the sanction required for prosecuting the public servant. The said section reads as under:
"19.Previous sanction necessary for prosecution(1) No court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction
(a) In the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) In the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;
(c) In the case of any other person, of the authority competent to remove him from his office."
20 Section 19 of the Act provides protection to an accused who happened to be public servant at the time of taking the cognizance by the court. The purpose of sanction under section 19 of AC No.01/2011 CBI Vs. Virender Singh etc. Page 12 of 64 the Act to have the approval of the competent authority to remove the accused from the office, is just because that at the time of taking the cognizance, he was a public servant.
21 In order to prove the sanction granted for the prosecution of the accused Virender Singh, the prosecution has examined Ms. I.B. Rani (PW2). PW2 has deposed that during December 2010, she was posted as DCP, East District and she was competent to appoint and remove an officer of the rank Constable posted at PS Geeta Colony within her jurisdiction. In the present case, the file for according sanction was put up before her on 28.12.2010. She perused the FIR, report of CBI and examined the matter. After due application of mind, she accorded sanction to prosecute accused Ct. Virender Singh. Witness proved the sanction order as Ex.PW2/A bearing her signatures and stamp at point A. 22 During crossexamination, PW2 admitted that date beneath her signatures appearing at point A on page 2 was in blank ink while at other place it was in blue ink. She denied that date at point A on page 2 was not in her handwriting. She stated that she had perused the report sent by CBI having details of the case and procedure adopted by them. She did not remember whether the copy AC No.01/2011 CBI Vs. Virender Singh etc. Page 13 of 64 of charge sheet was produced before her or not. No audio recordings were produced before her. PW2 further stated that forwarding letter was received from CBI along with documents but she did not remember whether any draft sanction proforma was received or not. She had not discussed the nature of duties of accused. She stated that beat constable plays a role in submitting the report for preparing the background to declare a person Bad Character. She stated that in th instant case, accused had reportedly threatened the complainant to implicate him in a false case. She denied that she had accorded sanction Ex.PW2/A without application of mind and in mechanical manner.
23 In the present case, the CBI has produced the sanctioning authority PW2 Ms. I.B. Rani who duly proved the sanction order of accused Virender Singh as Ex.PW2/A to prosecute him. The perusal of sanction order Ex.PW2/A shows that the sanctioning authorities after carefully examining the material such as FIR, statement of witnesses and documents collected during investigation and after applying her mind, accorded sanction for the prosecution of accused Virender Singh.
24 Consequently, in view of the above mentioned AC No.01/2011 CBI Vs. Virender Singh etc. Page 14 of 64 discussion, it is held that the PW2 was competent to accord the sanction for the prosecution of accused Virender Singh. It has been demonstrated from her testimony and sanction order that material was produced before her was made basis for passing sanction order. Though, accused has challenged the competency of sanctioning authority to pass sanction order but has not produced any material or evidence to show that she was not competent to pass such sanction order. The arguments of Ld. defence counsel that sanction order is defective and invalid as the same do not show application of mind, is not borne out of record. The sanctioning authority while entering into the witness box duly proved the sanction order. Sanction order also reveal that material which is part of judicial record was placed before the sanctioning authority and was gone into by her before according sanction.
25 So far as the contention of ld. defence counsel that the date on page 2 of the sanction is in different ink is concerned, PW2 has specifically stated that it was in her handwriting. The use of separate pen for signing and putting date hardly makes out a case to doubt the sanction accorded. Contention of the ld. defence counsel that draft sanction order was sent to the sanctioning authority, is AC No.01/2011 CBI Vs. Virender Singh etc. Page 15 of 64 without any basis as the witness (PW2) has not admitted that any such proforma was sent to her by CBI. Therefore, the judgments relied upon by the defence in case of Ameer Jan (supra) and Om Prakash (supra) are of no help to the accused as the same are not attracted to the facts and circumstances of the present case. 26 It is argued by ld. defence counsel that draft sanction order was placed before the sanctioning authority (PW2) and PW2 has just accorded the sanction for prosecution of accused Virender Singh in a mechanical manner. To prove this contention, accused has examined DW3 SI Jag Mahender Singh who has brought the office file of prosecution for sanction accorded against accused Virender Singh and proved draft sanction order as Ex.DW3/A. 27 It may be that draft sanction order Ex.DW3/A was placed on record, but it do not in any way discard the testimony of PW2 Ms. I.B. Rani, the then DCP who had accorded sanction Ex.PW2/A for prosecution of accused Virender Singh. PW2 has specifically deposed that she had gone through the documents placed on record and applied her mind before according sanction. I have also gone through the ratio of judgment in case of Amar Lal Vs. State of Punjab 2009 Cri.L.J. (NOC) 1246 in which it was observed that AC No.01/2011 CBI Vs. Virender Singh etc. Page 16 of 64 mere fact that witness has stated that draft sanction was received from Vigilance Department and sanction letter was issued after deleting word "draft", it does not invalidate sancation. 28 So, I do not find any force in the contention of ld. defence counsel that placing of draft sanction order before the sanctioning authority invalidates the sanction accorded for prosecution of accused Virender Singh.
29 Consequently, I am of the considered opinion sanction accorded for prosecution of accused Virender Singh is proper, valid and has been passed after due application of mind. Demand of bribe at previous stage 30 Our own Hon'ble High Court in case titled Ram Chander Versus State 2009 Cri. L.J. 4058 has framed the guidelines in trap cases. In the said judgment, it was observed that to succeed in trap cases, the prosecution is obliged to prove the previous demand of bribe, its acceptance and the recovery of tainted money. It was further observed that the demand can be proved by the testimony of complainant as well from the complaint made by him. 31 To prove the demand of bribe at the previous stage, the prosecution has examined the complainant Harish Kumar (PW4). AC No.01/2011 CBI Vs. Virender Singh etc. Page 17 of 64 He deposed that he was an auto rickshaw driver for the last 810 years. Since 09.07.2010 & 10.07.2010, accused Virender Singh was demanding Rs.5,000/ from him and he was told that if he did not pay the money, he would be falsely implicated in criminal cases. He was also threatened that he would be got declared Bad Character (BC) of the area. At that time, he was already made accused in about 8 cases of Gambling Act. On 13.07.2010, he approached CBI and met Mr. Vivek Kumar and told about his grievance. In the presence of CBI officials, he made a call from his mobile phone no.9899877657 on the mobile phone no.9250135811 of accused Virender Singh but he did not pick the phone. At about 2.31 p.m., he received a call from another no.9868471937 from accused Virender Singh who demanded Rs.5,000/. PW4 replied that he would manage the same by the evening time. Said conversation was recorded. On 13.07.2010, he had conversation with accused Virender Singh during which PW4 assured accused Virender Singh that he would pay the money in the evening to him. A verification memo Ex.PW4/A was prepared and then PW4 gave his written complaint Ex.PW4/B. 32 Perusal of complaint Ex.PW4/B shows that it is also mentioned therein that accused Virender Singh demanded bribe of Rs. AC No.01/2011 CBI Vs. Virender Singh etc. Page 18 of 64 5,000/ from the complainant to not to get him declared Bad Character of the area and not to get him involved in other cases. The verification memo Ex.PW4/A was prepared by PW12 Insp. Vivek Prakash in the presence of independent witness Bhoopendra Kumar (PW13). Insp. Vivek Prakash (PW12) corroborated the testimony of complainant (PW4) that during verification proceedings, complainant had a talk with accused Virender Singh and the verification conducted explored the demand of bribe on the part of accused Virender. Independent witness Bhoopendra Kumar (PW13) also corroborated that complainant had a talk with the suspect. He further deposed that the said he had heard the conversation by using head phone. He stated that transcription Ex.PW4/G of the said conversation was prepared. CD marked Q1 Ex.P16 was played in the Court and the witness (PW13) identified his introductory voice, voice of complainant Harish Kumar and voice of accused Virender Singh. 33 The verification memo Ex.PW4/A duly proves that during verification proceedings, accused Virender Singh demanded the bribe of Rs.5,000/ from the complainant. The transcription Ex.PW4/G of the transcription recorded during verification also establishes that accused demanded bribe from the complainant and AC No.01/2011 CBI Vs. Virender Singh etc. Page 19 of 64 agreed to accept Rs.5,000/ from him.
34 From the testimony of complainant as well as complaint Ex.PW1/A, it has been established that prior to making complaint by complainant (PW4) to the CBI, accused Virender Singh demanded bribe of Rs.5,000/ from him for not getting him declared BC of the area. The testimony of complainant has duly been corroborated by transcription Ex.PW4/G. His testimony has also been corroborated by Insp. Vivek Prakash (PW12) and independent witness Bhoopendra Kumar (PW13) who have stated that in their presence complainant had a talk with accused Virender Singh which confirmed the demand of bribe by accused.
35 In view of the above evidence discussed in detail, I am of the considered opinion that prosecution has duly established that accused Virender Singh demanded bribe from the complainant (PW4) at previous stage i.e. before making of complaint Ex.PW4/B by the complainant to the CBI. The prosecution has also duly established that accused Virender Singh demanded the bribe from the complainant (PW4) at the time of his conversation which was arranged in CBI office and agreed to accept the same on the same day evening.
AC No.01/2011 CBI Vs. Virender Singh etc. Page 20 of 64 Demand, acceptance and recovery 36 To prove the demand, acceptance and recovery of bribe at the spot, complainant (PW4) has deposed that after verification of demand of bribe vide verification memo Ex.PW4/A, he submitted his previously written complaint Ex.PW4/B on the basis of which, FIR Ex.PW4/C was registered. Thereafter, two independent witnesses were called. He arranged the sum of Rs.5,000/. In the presence of two independent witnesses, some powder was applied on the currency notes amounting to Rs.5,000/ produced by him. It was demonstrated as to how pink colour wold come on washing the hand. Powder treated currency notes were kept in his pant pocket. The introductory voice of independent witnesses were recorded in some recording equipment. Memo Ex.PW4/D (handing over memo) was prepared.
37 He further deposed that simultaneously pretrap proceedings were also held in respect of Rs.15,000/ to be handed to HC Subhash Chander same day evening. First the trap of HC Subhash Chander took place at Police Booth, Rani Garden. After that trap, PW4 contacted accused Virender Singh. After some time, accused Virender Singh called PW4 and directed him to hand over the AC No.01/2011 CBI Vs. Virender Singh etc. Page 21 of 64 money on the shop of M/s V.K. Jewellers located at 13/308, Geeta Colony. PW4 went to the said shop and found the shop locked. Thereafter, he received a call from accused Vijay Kumar on his mobile. Accused Vijay Kumar asked PW4 whether accused Virender Singh had directed him to give some money to him to which PW4 replied in affirmative. PW4 informed accused Vijay Kumar that he was standing in front of his shop. Within 23 minutes, accused Vijay Kumar came to the spot and the complainant handed over Rs.5,000/ to him. Accused Vijay Kumar accepted the sum of Rs.5,000/ handed over by PW4. PW4 requested accused Vijay Kumar that he would like to speak to accused Virender Singh. In the meantime, accused Vijay Kumar was apprehended by Insp. Anand Swaroop and he was taken near to Sai Baba Mandir where he was directed to talk to accused Virender Singh. After some time, accused Virender Singh arrived at the spot along with one other police person. CBI officials apprehended accused Virender. Rest of the proceedings were conducted in CBI office. PW4 told CBI officials regarding harassment faced by him at the hands of accused Virender Singh. PW4 identified his signatures on recovery memo Ex.PW4/E. He also identified GC notes as Ex.P1 to Ex.P10 and compared their numbers AC No.01/2011 CBI Vs. Virender Singh etc. Page 22 of 64 noted in handing over memo Ex.PW4/D as the same which were produced by him before CBI and subsequently handed over to accused Vijay Kumar which were recovered from him. The audio cassette marked Q2 Ex.P15 containing conversation which had taken place at the spot was played in the Court. The complainant identified his voice and voice of both the accused Virender Singh and Vijay Kumar. He identified the voice of accused Virender Singh vide which he directed the complainant to given the money to coaccused Vijay. When complainant told accused Virender Singh that the shop of accused Vijay Kumar was lying closed, then accused Virender Singh said that he was arranging call. Thereafter, complainant received call from accused Vijay Kumar who asked him as to where he was and that phone of Virender was received by him, on which complainant replied that he was standing outside the shop of accused Vijay Kumar. After the arrival of accused Vijay Kumar at the spot, he said Siphi Sahed had asked for Rs.5,000/.
38 Complainant (PW4) further stated that thereafter he handed over Rs.5,000/ to accused Vijay Kumar and then he was apprehended. On further playing of cassette, complainant identified the voices during which accused Vijay Kumar told accused Virender AC No.01/2011 CBI Vs. Virender Singh etc. Page 23 of 64 Singh that money had been given to him, on which accused Virender Singh has said that he was coming to the shop. When accused Vijay Kumar has said that he had closed the shop, accused Virender Singh said that he was coming near Sai Baba Mandir. Complainant deposed that a transcription memo Ex.PW4/F was prepared vide which transcription Ex.PW4/G was prepared.
39 Complainant (PW4) was cross examined at length but he stuck to his stand that on 13.07.2010, he had a talk with accused Virender Singh during which he directed the complainant to hand over the bribe money to accused Vijay Kumar Verma. He remained firm that firstly accused Vijay Kumar made a telephone call to him and then came outside his shop where he received tainted GC notes amounting to Rs.5,000/ on behalf of accused Virender Singh. He has also stated that on the directions of CBI officials, accused Vijay Kumar made a call to accused Virender Singh and informed that money was taken by him on which accused Virender Singh said that he would be coming to the spot and on his arrival, he was also apprehended.
40 The shadow witness Saibal Saha (PW11) has corroborated the testimony of complainant. He has stated that in AC No.01/2011 CBI Vs. Virender Singh etc. Page 24 of 64 JulyAugust, 2010, he reported to CBI to join a raid for apprehending some policeman. A team was constituted and a place was made regarding GC notes which were to be handed over to the suspect. 41 This witness was declared hostile and was cross examined by Ld. PP for CBI. During cross examination, PW11 admitted the case of the prosecution. He admitted that when he attended CBI office, he was introduced to complainant Harish Kumar and other independent witness Sh. Mewa Lal. The allegations of the complaint were explained to him; complainant produced 10 GC notes of Rs.500/ denomination; number of GC notes were recorded in handing over memo Ex.PW4/D; some white coloured powder was applied on GC notes; PW11 was directed to remain close with the complainant to over the conversation and see the transaction of bribe; digital recorder was given to the complainant; powder treated GC notes were given to the complainant. He also admitted that from CBI office, the team reached Sai Baba Mandir, Geeta Colony, at about 8.00 p.m., complainant made a call to accused Virender Singh which was recorded; during conversation accused Virender Singh directed the complainant to hand over bribe amount of Rs.5,000/ to accused Vijay Kumar, owner of V.K. Jewellers; they reached at the shop of AC No.01/2011 CBI Vs. Virender Singh etc. Page 25 of 64 V.K. Jewellers; the shop was found locked. Witness further admitted that complainant contacted accused Virender Singh on mobile phone; said conversation was recorded; accused Vijay called on the mobile phone of complainant and told that he would be reaching outside his shop; complainant and PW11 proceeded to the shop of accused Vijay. Witness also admitted that on arrival of accused Vijay, complainant took out tainted bribe amount of Rs.5,000/ and handed over same to accused Vijay who accepted the same; accused Vijay counted the notes with both his hands; accused Vijay was apprehended and he was caught with wrists. He admitted that money transaction between complainant and accused Vijay took place in his presence. Witness voluntarily stated that after accepting the money, accused Vijay called accused Virender and told him about having received the money. Sh. Mewal Lal had recovered the tainted bribe amount of Rs.5,000/ from the right hand of accused Vijay. Accused Vijay Kumar admitted before Insp. Anand Swaroop that he had accepted the amount of behalf of accused Virender Singh. When accused Vijay informed accused Virender Singh on mobile that he had accepted Rs.5,000/ from the complainant, he also informed that he was standing near Sai Baba Mandir. The hand wash of accused Vijay was taken in AC No.01/2011 CBI Vs. Virender Singh etc. Page 26 of 64 colourless chemical solution which turned pink. After 10 minutes of call made by accused Vijay, accused Virender Singh arrived at the spot sitting on the pillion seat of a motorcycle. Accused Virender Singh on arrival was identified by accused Vijay. Accused Virender Singh became apprehensive and tried to flee away, but he was nabbed by CBI team. Remaining proceedings were conducted in CBI office. 42 Witness PW11 was shown 10 GC notes of Rs.500/ denomination Ex.P1 To Ex.P10 and after comparing their numbers with the numbers mentioned in handing over memo Ex.PW4/D, he stated that those were the same GC notes which were produced by the complainant, handed over to accused Vijay Kumar and recovered from accused Vijay Kumar. Witness further stated that right hand and left hand wash of accused Vijay were taken which were sealed in bottles Ex.P12 and Ex.P11 respectively. Witness admitted that rough site plans Ex.PW10/E and Ex.PW10/F were prepared in his presence bearing his signatures. The recovery memo Ex.PW4/E bears his signatures. He further stated that arrest cum personal search memos Ex.PW1/A and Ex.PW10/B of accused persons were signed by him. He further stated that specimen voice recording memos Ex.PW10/C and Ex.Pw10/D of both the accused bear his signatures. A voice AC No.01/2011 CBI Vs. Virender Singh etc. Page 27 of 64 identification cum transcription memo Ex.PW4/F was prepared. The transcription Ex.PW4/G was also prepared after recordings were played in CBI office.
43 The other independent witness Mewa Lal (PW14) has deposed that on 13.07.2010, he was deputed for CBI duty. He attended CBI office and introduced to Insp. Anand Swaroop. He was told that Monu made a complaint against somebody and they had to accompany him. Though this witness had turned hostile on some points, but he admitted that Saibal Saha (PW11) was with him for the same purpose for which he was sent to CBI office. He admitted that phenolphthalein powder was applied on GC notes and demonstration was given regarding importance of powder. The handing over memo Ex.PW4/D bears his signatures. He admitted that Saibal Saha was asked to act as shadow witness and to remain closed to the complainant. He admitted that he, Saibal Saha, complainant and other team members reached at Gurudwara Singh Sabha, Geeta Colony. They reached Geeta Colony in Govt. vehicle. He admitted that recovery memo Ex.PW4/E, arrest cum personal search memos Ex.PW10/A & 10/B, site plans Ex.PW10/E & F, specimen voice recording memos Ex.PW10/C & D, voice identification cum AC No.01/2011 CBI Vs. Virender Singh etc. Page 28 of 64 transcription memo Ex.PW4/F and transcription Ex.PW4/G bears his signatures. He also identified his signatures on bottles marked LHW Ex.P11 and RHW Ex.P12, having hand washes of accused Vijay Kumar.
44 The Trap Laying Officer Insp. Anand sarup (PW10) has also corroborated the testimony of complainant (PW1). 45 It is argued by the ld. defence counsel that the prosecution is bound to prove the demand and acceptance of bribe by an accused which it has failed to prove in the present case. In support of the contention, reliance has been placed on a judgment in case of Banarsi Dass Vs. State of Haryana 2010 (2) Crimes 351 (SC). It is further argued that mere acceptance of bribe is not enough to convict an accused as the prosecution is bound to prove demand of bribe also. In support of this contention, he has relied upon judgment in case of State (Govt. of NCT of Delhi) Vs. Girdhari Lal Verma 2011 (4) RCR (Criminal) 245 in which it was observed that in corruption cases, it is necessary that there is a demand of money and the same is accepted for doing a favour. It was further observed that demand of money is a sine qua non for the conviction of the accused.
46 The transcription Ex.PW4/G of the recorded AC No.01/2011 CBI Vs. Virender Singh etc. Page 29 of 64 conversation which had taken place at the spot (running from page 7 to 18) shows that the complainant made a telephone call to accused Virender Singh and asked him as to where he was and whom to give the money as he was ready to pay the money, on which accused Virender Singh directed him to give money to accused Vijay Kumar. The complainant informed accused Virender Singh that the shop was lying closed. Thereafter, complainant received the call of accused Vijay Kumar who asked him as to where he was standing. Complainant asked him as to whether he had received the call of accused Virender Singh. Accused Vijay Kumar told that he was coming to his shop and it was told to him that the person coming would give him Rs.5,000/. Transcription Ex.PW4/G further shows that thereafter conversation between accused Vijay Kumar and Virender Singh had taken place. Accused Vijay Kumar informed accused Virender Singh that the person gave him the money i.e. "five", on which accused Virender Singh said that he was coming there. Accused Vijay Kumar said that he had already closed the shop and asked accused Virender Singh to come near Sai Baba Mandir. 47 The above transcription further corroborates the testimony of the complainant (PW4) that accused Virender Singh AC No.01/2011 CBI Vs. Virender Singh etc. Page 30 of 64 agreed to accept the bribe money from the complainant and sent his coaccused Vijay Kumar Verma to collect bribe money from the complainant. The testimony of the complainant (PW4), of shadow witness (PW11) and transcription Ex.PW4/G duly proves that accused Vijay Kumar came to the spot and accepted the bribe money from the complainant on behalf of accused Virender Snigh and it was recovered from accused Vijay Kumar. During conversation between both the accused at the spot, accused Vijay Kumar informed accused Virender Singh that he had accepted the money from the complainant upon which accused Virender Singh asked him to remain at the spot as he was coming to meet him there. This clearly proves the acceptance of bribe money.
48 The CFSL report Ex.PW16/A of voice expert (PW16) also confirms the case of prosecution that it contains the voice of accused persons. It was observed by the voice expert (PW16) that specimen voices of both the accused matched with their questioned voices contained in CD/cassette (recorded conversation of the spot). The report Ex.PW8/A of hand wash expert Dr. N.M. Hashmi (PW8) also establishes the case of prosecution. In this report Ex.PW8/B, it is mentioned that left hand wash LHW Ex.P11 and right hand wash AC No.01/2011 CBI Vs. Virender Singh etc. Page 31 of 64 RHW Ex.P12 of accused Vijay Kumar gave positive tests for the presence of phenolphthalein.
49 The voice expert report Ex.PW16/A proves that both the accused were apprehended from the spot. It further establishes that accused Virender Singh demanded bribe from the complainant at the spot during mobile conversation with him and agreed to accept the same through his coaccused Vijay Kumar. It further proves that accused Vijay Kumar accepted the bribe amount of Rs.5,000/ from the complainant outside his shop on behalf of coaccused Virender Singh. The report Ex.PW8/B of wash expert (PW8) also proves the case of prosecution that accused Vijay Kumar accepted the bribe money from the complainant, which was accepted by him on behalf of accused Virender Singh.
50 It has been argued by ld. defence counsel that report Ex.PW16/A of the voice expert (PW16) is inadmissible in evidence as PW16 was not a notified Examiner and there is no notification in his favour.
51 I have gone through Section 293 of Cr.P.C. which provides that reports of certain Government scientific experts is admissible in evidence. Clause (a) of subsection (4) of section 293 AC No.01/2011 CBI Vs. Virender Singh etc. Page 32 of 64 Cr.P.C. clearly provides that report of Chemical Examiner or Assistant Chemical Examiner may be used as evidence in any inquiry, trial or other proceedings. As per report Ex.PW16/A, on the day of examination of voices contained in the cassettes/CDs, he was posted as Sr. Scientific OfficercumAsstt. Chemical Examiner, CFSL, CBI, New Delhi. Thus, when it has been shown from the record that PW16 was an Assistant Chemical Examiner, his report Ex.PW16/A is admissible in evidence as per clause (a) of Section 293(4) of Cr.P.C. 52 It is argued by ld. defence counsel that the recovery memo Ex.PW4/E is not bearing signature of accused persons on each page as token of receiving copy of memo. It is argued that presumption goes against the CBI that the accused persons were not present when recovery memo was prepared as it did not bear signatures of accused persons on each page. In support of this contention, reliance has been placed on a judgment in case of Janardan Sada @ Matua Vs. The State (NCT of Delhi) 2012 (2) JCC 1435 in which it was observed that the seizure memos prepared by the police do not contain signature of the accused, which rules out his presence at the time of apprehension and recovery.; 53 To appreciate the contention of ld. defence counsel, I AC No.01/2011 CBI Vs. Virender Singh etc. Page 33 of 64 have gone through recovery memo Ex.PW4/E. Though, it is apparent that it did not bear signatures of accused persons on each and every page, but on the last page of the recovery memo, there are signatures of both the accused persons in token of receiving the copy of recovery memo. The nonbearing of signatures of accused persons is a technical defect and the case of prosecution cannot be discarded on this technicality when the last page of the recovery memo bears signatures of both the accused persons in token of receiving its copy, which otherwise establishes their presence at the time of its preparation. So, the judgment relied upon by the ld. defence counsel in case of Janardan Sada @ Matua (supra) is of no help to accused persons as the same is not attracted in the facts and circumstances of the present case.
54 From the totality of evidence produced on record in the form of testimony of complainant Harish Kumar (PW4) which has duly been corroborated by the independent shadow witness Saibal Saha (PW11) and the Trap Laying Officer/IO (PW10), I am of the considered opinion that the prosecution has duly established that on 13.07.2010, during laying of trap, accused Virender Singh agreed to accept bribe money from the complainant through coaccused Vijay AC No.01/2011 CBI Vs. Virender Singh etc. Page 34 of 64 Kumar and sent him to accept the bribe amount from the complainant. It has also been established that accused Vijay Kumar accepted tainted GC notes Ex.P1 to Ex.P10 from the complainant at the time of laying trap on behalf of accused Virender Singh which were recovered from his hand. The voice expert report Ex.PW16/A as well as wash expert report Ex.PW8/B also corroborates the case of prosecution to the effect that both the accused were apprehended at the spot, accused Virender Singh demanded and accepted bribe from the complainant through accused Vijay Kumar.
Criminal Conspiracy 55 The next question for consideration is whether there was any criminal conspiracy between the accused persons for demand and acceptance of the bribe amount from the complainant (PW4). The essence of criminal conspiracy is the unlawful combination and an agreement of minds between two or more accused persons whereby they cooperate to accomplish an object. In the present case, it is alleged that both the accused persons criminally conspired with each other to accept the bribe amount from the complainant (PW1). It is alleged against accused Virender Singh that he demanded bribe from the complainant and sent coaccused Vijay Kumar Verma to AC No.01/2011 CBI Vs. Virender Singh etc. Page 35 of 64 collect the bribe money which was recovered from him. 56 It has been argued by Ld. defence counsel that there is no evidence on record which could connect the accused persons for the commission of conspiracy. It is further argued that there is no evidence which could reflect any prior meeting of mind between accused persons and even the complainant has not thrown any light to prove the conspiracy.
57 Case of the prosecution is that accused Virender Singh demanded the bribe from the complainant (PW4) and sent co accused Vijay Kumar Verma to collect the bribe money, while entering into a criminal conspiracy with each other. To prove the conspiracy, prosecution has examined the complainant (PW4). The complainant Harish Kumar @ Monu (PW4) has deposed that after conducted pretrap proceedings in CBI office, he along with independent witnesses and CBI team reached the spot. He received a call from accused Virender Singh who directed him to hand over the money to the shop of M/s V.K. Jewellers located at 13/308, Geeta Colony. The complainant went to the said shop and found it closed. He received a call from accused Vijay Kumar on his mobile phone. Accused Vijay Kumar asked the complainant whether accused AC No.01/2011 CBI Vs. Virender Singh etc. Page 36 of 64 Virender Singh had directed him to given money to him (accused Vijay Kumar) to which the complainant replied in affirmative. Within 23 minutes, accused Vijay Kumar came to the spot and the complainant handed over Rs.5,000/ to him. Accused Vijay Kumar accepted the sum of Rs.5,000/ from the complainant. Accused Vijay Kumar was apprehended by Insp. Anand Swaroop and he was taken to near Sai Baba Mandir where he was directed to talk to accused Virender Singh. After some time, accused Virender Singh arrived at the spot who was apprehended. The complainant identified his voice and voice of both the accused in the cassette played in the Court containing spot conversation.
58 The independent witness Saibal Saha (PW11) corroborated the testimony of complainant. PW11 has deposed that from CBI office, the team reached the spot. A conversation between accused Virender Singh and complainant had taken place which was recorded. During the said conversation, accused Virender Singh directed the complainant to hand over the bribe amount of Rs.5,000/ to accused Vijay Kumar, owner of V.K. Jewellers. He stated that the team reached the shop of V.K. Jewellers. The shop was found was locked. Complainant again contacted accused Virender Singh during AC No.01/2011 CBI Vs. Virender Singh etc. Page 37 of 64 which accused Virender Singh asked him that he would ring back in few minutes. Thereafter, a call was received on the mobile phone of complainant from accused Vijay Kumar who told that he wouuld reached outside his shop in few moments. On arrival of accused Vijay Kumar, the complainant took out the tainted bribe amount of Rs.5,000/ and handed over the same to accused Vijay who accepted the same. Thereafter, accused Vijay counted the same with both his hands and then he was apprehended. After accepting the money, accused Vijay called accused Virender and told him about having received the money. Witness further deposed that accused Vijay Kumar admitted that he had accepted the amount on behalf of accused Virender Singh. When accused Vijay informed accused Virender Singh on mobile that he had accepted the amount of Rs.5,000/ from the complainant, accused Vijay also informed him that he was standing near Sai Baba Mandir. The hand washes of accused Vijay Kumar were taken in the colourless solution which turned pink. After about 10 minutes, accused Virender Singh arrived at the spot and he was apprehended.
59 Insp. Anand Saroop (PW10) also corroborated the testimony of complainant (PW4) and independent witness Saibal Saha AC No.01/2011 CBI Vs. Virender Singh etc. Page 38 of 64 (PW11). PW10 has deposed that the trap team, complainant and both the independent witnesses reached near Sai Baba Mandir in Block13, Geeta Colony. The complainant had made a call to accused Virender Singh during which he directed the complainant to hand over the bribe amount to accused Vijay Kumar, owner of V.k. Jewellers at his shop located at 13/308, Geeta Colony. They reached the shop which was found closed. The complainant again contacted accused Virender Singh who said that he was directed accused Vijay Kumar to contact him after some time. At about 8.10 p.m., the complainant received a call from his mobile phone from accused Vijay Kumar who said that he was coming near his shop. Accused Vijay Kumar was found present at the said place. The complainant took out tainted bribe amount and handed over same to accused Vijay Kumar which he accepted from his right hand and counted the same from his both hands. Accused Vijay Kumar was apprehended and he admitted that he accepted bribe amount from the complainant on behalf of accused Virender Singh. The hand washes of accused Vijay Kumar were taken in the colourless solution which turned pink. Accused Vijay Kumar was directed to make a call to accused Virender Singh regarding receiving of Rs.5,000/ from the complainant and he was AC No.01/2011 CBI Vs. Virender Singh etc. Page 39 of 64 waiting for him near Sai Baba Mandir. After sometime, accused Virender Singh came at the spot and he was caught. 60 The testimony of complainant duly establishes the prior meeting of mind of both the accused in accepting bribe amount from him. He has specifically deposed that he was directed by accused Virender Singh to hand over the bribe amount of Rs.5,000/ to accused Vijay Kumar at his shop. When complainant informed accused Virender Singh that the shop was lying closed, accused Virender Singh asked him that he would direct accused Vijay Kumar to contact the complainant. Thereafter, accused Vijay Kumar made a call to the complainant and asked him whether he was directed by accused Virender Singh to hand over money to accused Vijay Kumar. Thereafter, accused Vijay Kumar reached at the spot and received tainted GC notes amounting to Rs.5,000/ from the complainant which were recovered from him. The accused Vijay Kumar made a call to accused Virender Singh that he had received the money from the complainant, on which accused Virender Singh reached at the spot after some time where he was apprehended.
61 The documents Ex.PW6/B duly proves that mobile phone no.9899977657 was issued in the name of the complainant AC No.01/2011 CBI Vs. Virender Singh etc. Page 40 of 64 Harish Kumar (PW4). As per testimony of PW9 Sh. Pawan Sigh, Nodal Officer of Idea Cellular Ltd., the mobile phone no.9990144767 was issued in the name of Kali Charan vide his copy of identity card Ex.PW9/B. PW9 has also proved that mobile phone no.9891161258 was issued in the name of accused Vijay Kumar Verma vide Ex.PW9/C. The call details of these mobile phones have been proved as Ex.PW9/D (9891161258) and Ex.PW9/E (9990144767). 62 PW3 Ct. Kali Charan has deposed that accused Virender Singh did not have a Delhi mobile connection and on his request, PW3 applied for mobile connection and he submitted copy of ID proof to Idea Mobiile Company. Some mobile number was alloted and he had handed over the mobile connection to accused Virender Singh which was used by him. During crossexamination, PW3 has denied that mobile phone no.9990144767 was in his use or that it was not purchased by him for accused Virender Singh. 63 So, from the testimony of PW3, it has been duly established that mobile phone no.9990144767 was used by accused Virender Singh. As per testimony of PW9, mobile phone no. 9891161258 was in the name of accused Vijay Kumar Verma. The call details Ex.PW9/D of mobile phone no.9891161258 shows that AC No.01/2011 CBI Vs. Virender Singh etc. Page 41 of 64 two incoming calls on the mobile phone of accused Vijay Kumar Verma were received on 13.07.2010 at 08.06 and 08.11 p.m. From mobile phone no.9990144767, which was in use of accused Virender Singh at that time. Call details further show that sat 8.13 p.m., accused Vijay Kumar Verma made a call on mobile phone no. 9899877657 i.e. the mobile phone of the complainant. These call details further proves the criminal conspiracy between the accused persons.
64 The above evidence proves the case of the prosecution that both the accused persons hatched a criminal conspiracy to demand and accept bribe money from the complainant. Initially the bribe was demanded by accused Virender Singh who called the complainant to reach at the spot and during trap proceedings, he directed the complainant to hand over the bribe money to his coaccused Vijay Kumar. The evidence further establishes that accused Vijay Kumar accepted the bribe money from the complainant on behalf of accused Virender Singh. The conversation taken place between the complainant and accused persons on phone clearly proves that both the accused persons were hand in glove with each other to demand and accept bribe money AC No.01/2011 CBI Vs. Virender Singh etc. Page 42 of 64 from the complainant. After apprehension of accused Vijay Kumar, he made a call to accused Virender Singh informing him about the receipt of money from the complainant on which accused Virende Singh told him that he would reaching the spot within few minutes. This also proves the prior meeting of mind between both the accused persons to hatch a criminal conspiracy the object of which was to receive bribe from the complainant.
65 The above testimony of complainant which proves criminal conspiracy by both the accused, has duly been corroborated by independent witness Saibal Saha (PW11) and IO/TLO Insp. Anand Saroop (PW10).
66 The transcription Ex.PW4/G of the recorded conversation which had taken place at the spot, also proves that accused Virender Singh directed the complainant to hand over the money to accused Vijay Kumar. It further proves that accused Vijay Kumar agreed to came at the spot on the direction of accused Virender Singh to accept bribe money on his behalf from the complainant. It further proves that accused Vijay Kumar came at the spot and accepted bribe money of Rs.5,000/ from the complainant on behalf of accused Virender Singh. The report Ex.PW8/B of wash AC No.01/2011 CBI Vs. Virender Singh etc. Page 43 of 64 expert (PW8) further corroborates that the tainted GC notes Ex.P1 to Ex.P10 recovered from the hand of accused Vijay Kumar were smeared with phenolphthalein powder, which proves that he accepted bribe money from the complainant. The report Ex.PW16/A of the voice expert (PW16) further proves that telephonic conversation between the complainant and accused persons had taken place. 67 The cumulative effect of circumstances as set out above is that there was a criminal conspiracy between both the accused persons in demanding and accepting bribe from the complainant and prosecution has duly established that to accomplish the goal of said conspiracy, accused Vijay Kumar Verma accepted bribe from the complainant on behalf of accused Virender Singh. Consequently, both the accused persons are held guilty for commission of offence of criminal conspiracy under section 120B IPC read with section 13(2) read with 13(1)(d) of the P.C. Act. Defence 68 Accused Virender Singh has stated that he had not demanded any money from the complainant. He was not competent to get anybody declared P.O. or to get a false case registered. He never had any telephonic talks with the complainant. He had nothing AC No.01/2011 CBI Vs. Virender Singh etc. Page 44 of 64 to do with mobile phone nos.9990144767 and 9250135811. On 13.07.2010 he was on patrolling duty. Some people in civil dress forcibly stopped the government motorcycle, lifted him and straightaway took him to CBI office and was falsely implicated in this case. He was never associated with investigation of any case of the complainant. The complainant is known criminal of the area against whom several cases were pending in Courts and he used CBI as a tool to terrorize the police officials of PS Geeta Colony not to take any action against his illegal activities in future. In support of his defence, accused Virender Singh examined DW1 HC Manoj Kumar, DW2 Ct. Jitendra Kumar, DW3 SI Jag Mahender Singh, DW4 HC Manoj Kumar, DW5 HC Suresh Kumar, DW6 Dr. Subrat Kumar Chaudhary, DW7 Sh. Ramesh Kumar and DW8 Insp. Jarnail Singh. 69 DW1 HC Manoj Kumar has proved on record copy of DD No.24B dated 11.07.2010, PS Geeta Colony as Ex.DW1/A. DW2 Ct. Jitendara Kumar, RTI Cell, Office of DCP/East has proved the RTI informations issued from their office as Ex.DW2/A to Ex.DW2/C. DW3 SI Jag Mahender Singh has brought the office file of prosecution for sanction accorded against accused Virender Singh. He proved on record draft sanction order as Ex.DW3/A. DW4 HC AC No.01/2011 CBI Vs. Virender Singh etc. Page 45 of 64 Manoj Kumar has proved on record copy of FIR Nos.350/10, 175/14 and 402/14, PS Geeta Colony as Ex.DW4/A to Ex.DW4/C. DW5 HC Suresh Kumar has proved the copy of FIR Nos.545/12, PS Jagat Puri as Ex.DW5/A. 70 DW7 Sh. Ramesh Kumar has stated that accused Virender is his nephew (bhanja). DW7 never had any mobile phone no.9868211594. He was never informed by the CBI about the arrest of accused Virender in the present case. He came to know about his arrest after about one week.
71 DW8 Insp. Jarnail Singh has stated that departmental enquiry of accused Virender Singh was marked to him as Enquiry Officer. He had recorded statement of witnesses during enquiry. He has stated that statement of one Harish Kumar @ Monu was recorded. 72 It has been argued by the ld. defence counsel that accused Virender Singh was not competent to do any favour or disfavour to the complainant or to get him declared Bad Character of the area. It is submitted that being constable, accused Virender Singh was not competent to get the complainant (PW4) declared BC of the area as the sanctioning authority (PW2) has admitted that the person is declared BC by the DCP of the area on the report submitted by AC No.01/2011 CBI Vs. Virender Singh etc. Page 46 of 64 SHO. It is further argued that complainant Harish Kumar was a tainted and disgruntled person of the area. There were several criminal cases were pending against him including Ex.PW4/DA to Ex.PW4/DH.
73 I am not convinced with the arguments of ld. defence counsel that accused Virender Singh had no role in getting the complainant declared BC of the area. As per testimony of PW2 Ms. I.B. Rani, the then DCP, it is apparent that a person is declared BC of the area by DCP on the report of SHO. But Standing Order No.Ops.52 dated 13.11.2007 has been placed on record which defines duties of Beat Constable. It is not in dispute that on the day of incident, accused Virender Singh was the beat constable of the area. Even this fact is proved by DD No.24B dated 11.07.2010, PS Geeta Colony Ex.DW1/A. This DD entry shows that accused Virender Singh was the beat constable of beat No.67. The Standing Order dated 13.11.2007 clearly provides that the Beat Officer is required to maintain a Beat Book in which he has to prepare a list of individuals who are residents of the beat who have found involved as an accused in offences against the human body, offence against property, offences relating to documents & property marks and of AC No.01/2011 CBI Vs. Virender Singh etc. Page 47 of 64 criminal intimidation.
74 The above mentioned Standing Order dated 13.11.2007 had been issued by the then Commissioner of Police. The Standing Order proves the case of prosecution that accused Virender Singh was competent to get any person declared BC of the area as being beat officer, it was his duty to maintain a beat book regarding accused persons residing in the beat involved in different type of offences. It was the duty of the beat constable to institute the proceedings against the criminals of the area to make their entry in the beat book which could further be used to declare a criminal bad character of the area.
75 So far as contention of the ld. defence counsel that the complainant was of bad character/criminal of the area is concerned, it do not in any way gives right to any police official to demand bribe from the alleged criminal. It may be that several criminal cases were pending against the complainant, but it does not give any right to accused Virender Singh to demand bribe from him. In this regard, I have gone through the judgment of Hon'ble Apex Court in case of State of Punjab Vs. Madan Mohan Lal Verma 2013 (7) LRC 34 (SC) in which it was observed that even if the AC No.01/2011 CBI Vs. Virender Singh etc. Page 48 of 64 complainant had a criminal background, he can still be forced by the officer of the Income Tax Department to pay illegal gratification for not reopening the assessment of a particular year. In the present case also, it has come on record that accused Virender Singh demanded illegal gratification from the complainant for not declaring him Bad Character of the area.
76 It is further argued by ld. counsel for accused Virender Singh that the testimony of complainant is liable to be discarded as he had made contrary statement in the Court and in departmental enquiry. In support of this contention, reliance has been placed on the judgment in case of Meena Vs. The State of Maharashtra 2000 II AD (Cr.) SC 298 in which it was observed that the contradictory version of PW1 of the very incident when earlier examined in departmental proceedings renders his testimony in the case untrustworthy. Next judgment relied upon is in case of Satish Kumar Arora Vs. Central Bureau of Investigation 2014 (4) LRC 348 (Del) in which it was observed that the prosecution had not been able to establish its case against the appellant beyond all reasonable doubt where inconsistent statements made by key witness for prosecution and the fact that she confirmed as correct the statement made by her AC No.01/2011 CBI Vs. Virender Singh etc. Page 49 of 64 during the departmental proceedings where she said nothing against appellant.
77 I have gone through the testimony of complainant Harish Kumar (PW4) made before the Court and his statement made during the departmental enquiry. The statement of complainant made during departmental proceedings has been proved as Ex.DW2/E which apparently shows that he had made a contradictory statement. The complainant in his testimony before this Court has duly substantiated the allegations against the accused persons. He has categorically stated that accused Virender Singh demanded bribe of Rs.5,000/ from him for not getting him declared Bad Character of the area. He has also stated that accused Vijay Kumar accepted bribe money from him on behalf of accused Virender Singh. Testimony of complainant has duly been corroborated by independent witness (PW11) and documentary evidence. Therefore, the judgments relied upon by accused in case of Meena Vs. The State of Maharashtra (supra) and Satish Kumar Arora (supra) are of no help to him as the same is distinguishable from the facts of the present case. 78 It is further argued by ld. defence counsel that evidence of panch witnesses i.e. PW11 and PW14 cannot be relied AC No.01/2011 CBI Vs. Virender Singh etc. Page 50 of 64 upon as they were declared hostile and destroyed the case of prosecution. In support of this contention, reliance has been placed on judgment in case of Satish Kumar Vs. State 1995 (3) C.C. Cases 252 (HC) in which it was observed that the questions which ought to have been put to the witness while crossexamination by the prosecutor, should have elicited facts and not statements made to the police.
79 It is apparent from the testimony of PW11 Saibal Saha that he turned hostile, but during his crossexamination by the ld. PP for CBI, he admitted the case of the prosecution. He has proved the fact regarding laying of trap and demand of bribe by accused Virender Singh from the complainant Harish Kumar. He has also proved the fact that at the time of trap, accused Virender Singh directed the complainant to give the bribe money to coaccused Vijay Kumar which was accepted by accused Vijay Kumar and its recovery was effected from him. The testimony of complainant is sufficient to hold that accused persons hatched a criminal conspiracy to demand and accept bribe of Rs.5,000/ from the complainant and that accused Virender Singh demanded bribe of Rs.5,000/ from the complainant and accepted through his coaccused Vijay Kumar Verma. But in the AC No.01/2011 CBI Vs. Virender Singh etc. Page 51 of 64 present case, these allegations have also been corroborated by independent witness PW11 Saibal Saha and TLO PW10 Ins. Anand Saroop as well as by documentary evidence. So, the accused cannot get any help from the judgment in case of Satish Kumar (supra). 80 Ld. counsel for accused Vijay Kumar has argued that there are several material contradictions and discrepancies in the testimony of witnesses. He has submitted that complainant and accused Vijay were known to each other and residents of same locality. It is submitted that accused Vijay has been falsely implicated in the present case as the complainant had got inimical against him due to quarrel which took place between him and the complainant on the day of incident when accused Vijay had demanded his money from the complainant which he owed towards accused Vijay towards balance of jewellery purchased by him. 81 There is force in the contention of accused Vijay Kumar Verma that any quarrel as such had taken place between him and the complainant at the time of trap when he was apprehended. Accused Vijay has taken the stand that the complainant owe some towards him which he was not returning as he had purchased some jewellery from accused Vijay Kumar. Accused Vijay Kumar has not AC No.01/2011 CBI Vs. Virender Singh etc. Page 52 of 64 produced any evidence or material on record to show that he had sold any jewellery article to the complainant for which payment was not made by the complainant. But the fact remains otherwise that accused Vijay Kumar came to the spot after having a conversation with the complainant that he was reaching there to accept money on behalf of accused Virender Singh. Even, at the time of accepting tainted GC notes amounting to Rs.5,000/, accused Vijay Kumar had not said that he was taking the money which was lying balance against the complainant.
82 So far as contention of the ld. defence counsel that there are contradictions and discrepancies in the testimony of witnesses is concerned, I have gone through the testimony of prosecution witnesses. It is apparent that there are some contradictions/discrepancies in their testimony, but the same are not material which can go to the root of the matter. I am not convinced with the arguments advanced inasmuch as firstly the contradictions so alleged have not been pointed out which go to the root of the matter and discredit the case set up by the prosecution. I have gone through the ratio of judgment in case of Prithu @ Prithvi Chand and Another Vs. State of Himachal Pradesh, (2009) 11 SCC 588 wherein it was AC No.01/2011 CBI Vs. Virender Singh etc. Page 53 of 64 observed that that while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the prosecution's case, may not prompt the court to reject the evidence in its entirety. Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions. Difference in some minor detail, which does not otherwise affect the core of the prosecution case, even if present, would not itself prompt the court to reject the evidence on minor variations and discrepancies. An undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution witness. As the mental capabilities of a human being cannot be expected to be atuned to absorb all the details, minor discrepancies are bound to occur in the statements of witnesses. 83 It is further argued by ld. defence counsel that no presumption can be raised against accused persons as the prosecution has failed to prove the demand of bribe. In support of this contention, reliance has been placed on a judgment in case of V. Venkata Subbarao Vs. State represented by Inspector of Police, A.P. 2007 Cri.L.J. 754 in which it was observed that in the absence of a proof of AC No.01/2011 CBI Vs. Virender Singh etc. Page 54 of 64 demand, the question of raising the presumption would not arise. Section 20 of the P.C. Act provides for raising of a presumption ony if a demand is proved.
84 In the present case, from the evidence discussed above, the prosecution has duly established that accused Virender Singh demanded bribe of Rs.5,000/ from the complainant (PW4). The complainant has specifically deposed in this regard and even corroborated the contents of his complaint Ex.PW4/B which also shows that there was demand of bribe by accused Virender Singh prior to making of complaint to the CBI. Even the demand of bribe by accused Virender Singh prior to laying of trap has been established as it was verified in CBI office vide verification memo Ex.PW4/A which has been corroborated by the complainant (PW4), independent witness (PW13) and Insp. Vivek Prakash (PW12). The demand of bribe by accused Virender Singh at the time of laying of trap has also been convincingly established on record. Thus, when the prosecution has successfully established the demand of bribe by accused Virender Singh and its acceptance through coaccused Vijay Kumar Verma, a presumption under Section 20 of the P.C. Act is raised against accused Virender Singh. Therefore, the accused cannot get any help AC No.01/2011 CBI Vs. Virender Singh etc. Page 55 of 64 from the authority in case of V. Ventaka Subbarao (supra). 85 As discussed above, the accused persons have failed to probabilise the defence that they have been falsely implicated in the present case or that the bribe was not demanded and accepted. Conclusion 86 The prosecution has successfully established that the sanction granted by the sanctioning authority Ms. I.B. Rani (PW2) was proper. It has duly been established that the sanction has been accorded after due application of mind. The accused has failed to show anything on record to show that the sanction granted was in mechanical manner or without application of mind. 87 It has duly been established that both the accused hatched a criminally conspiracy to demand and accept the bribe from the complainant (PW4) and in furtherance of the same, both of them called the complainant (PW4) at the spot where accused Virender Singh demanded bribe money from the complainant and accepted the same through coaccused Vijay Kumar Verma. The conversation which had taken place between the complainant and both the accused from the spot, clearly establishes the charge of criminal conspiracy on the accused persons. It has also been established that accused Vijay AC No.01/2011 CBI Vs. Virender Singh etc. Page 56 of 64 Kumar Verma accepted the bribe money from the complainant on behalf of accused Virender Singh, which also proves prior meeting of minds of accused persons in accepting bribe money from the complainant.
88 The prosecution has further successfully proved its case beyond reasonable doubt against accused Virender Singh that being public servant while posted Constable in Police Station Geeta Colony, he committed the criminal misconduct by demanding the bribe of Rs.5,000/ from the complainant (PW4) for not declaring him Bad Character of the area at the previous stage i.e. before making complaint by the complainant (PW4) to the CBI and before laying the trap as well. The contents of the complaint and the testimony of complainant have duly been corroborated by other evidence on record.
89 It has also been established that on 13.7.2010, accused Virender Singh demanded and accepted/obtained illegal gratification in the form of bribe of Rs.5,000/ from the complainant (PW4) other than his legal remuneration through coaccused Vijay Kumar Verma which was recovered from his hand. From the evidence of the complainant (PW4) and the independent witness AC No.01/2011 CBI Vs. Virender Singh etc. Page 57 of 64 (PW11) which has duly been corroborated by Investigating Officer/ TLO and the opinions of wash expert and voice expert, the prosecution has duly established that accused Virender Singh demanded the bribe from the complainant. It has duly been established that accused Virender Singh accepted bribe through accused Vijay Kumar Verma. The conversation recorded in CBI office as well as on the spot also established the demand and acceptance of bribe money by accused.
90 It is important to note that corruption by public servants has become a gigantic problem. It has spread everywhere and no facet of public activity has been left unaffected by the sting of corruption. It has deep and pervasive impact on the functioning of the entire country and large scale corruption retards the national building activities and everyone has to suffer on that count. Corruption is corroding our country like cancerous lymph nodes and demoralising the honest officers. The efficiency in public service would improve only when public servant devotes his sincere attention and does his duty diligently, truthfully, honestly and devotes himself assiduously to the performance of his duty to the post. 91 Consequently, both the accused, namely, Virender AC No.01/2011 CBI Vs. Virender Singh etc. Page 58 of 64 Singh and Vijay Kumar Verma are hereby held guilty for the commission of offence punishable under Section 120B IPC read with Section 13(2) read with 13(1)(d) of P.C. Act. Accused Virender Singh is also held guilty for commission of offences punishable under Section 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. Both the accused are accordingly convicted for the said offences.
Announced in the open Court ( P.S. TEJI )
Dated: 16.09.2014 District & Sessions Judge(East)
Special Judge (CBI)
Karkardooma Courts : Delhi
AC No.01/2011 CBI Vs. Virender Singh etc. Page 59 of 64
IN THE COURT OF SHRI P.S. TEJI : DISTRICT & SESSIONS JUDGE (EAST) : SPECIAL JUDGE (CBI), KARKARDOOMA COURTS, DELHI AC No.01/2011 Unique Case ID No.02402R0003902011 FIR No.RC32(A)/2010 Under Sec. 120B IPC r/w Section 7 and 13(2) r/w Sec. 13(1)(d) of PC Act.
CBI Versus (1)Virender Singh
S/o Sh. Devi Singh
R/o Vill. Kasanda, Teh. Gohana,
Distt. Sonipat, Haryana.
(2)Vijay Kumar Varma
S/o Sh. Vilayati La Varma
R/o 13/304, Geeta Colony,
Delhi110031.
ORDER ON SENTENCE
Vide judgment dated 16.09.2014, both the convicts, namely, Virender Singh and Vijay Kumar Varma have been held guilty and convicted for commission of offences punishable under Section 120B IPC read with section 13(2) read with 13(1)(d) of the P.C. Act, whereas convict Virender Singh has also been convicted for AC No.01/2011 CBI Vs. Virender Singh etc. Page 60 of 64 offence under section 7 and 13(2) read with 13(1)(d) of the P.C. Act. 2 I have heard Sh. Thakuri, ld. PP for the CBI; Sh.
Sanjay Kumar, ld. counsel for convict Virender Singh and Sh. Sanjeev Bhardwaj, ld. counsel for convict Vijay Kumar Varma on the quantum of sentence.
3 The learned PP for the CBI has submitted that at the time of trap, convict Virender Singh was posted as Constable in Delhi Police. Both the convicts have been held guilty for hatching a criminal conspiracy in demanding and accepting bribe from the complainant. He has further submitted that the convict Virender Singh has have also been held guilty for demanding and accepting bribe from the complainant. It has duly been established that both the convicts were apprehended and arrested at the spot and bribe money was recovered from the hand of convict Vijay Kumar Varma which he had accepted/obtained on behalf of convict Virender Singh. He has further argued that convict Virender Singh being public servant misused his official position by demanding Rs.5,000/ and accepting bribe of Rs.5,000/ through convict Vijay Kumar Varma to not to get the complainant declared Bad Character of the area. He has further submitted that the convicts may be awarded maximum punishment AC No.01/2011 CBI Vs. Virender Singh etc. Page 61 of 64 prescribed under the law.
4 The ld. counsel for convict Virender Singh has submitted that the convict is aged about 29 years having wife and minor son aged about four years in the family. He is also having widow mother aged about 68 years. The convict remained in custody for 35 days. He is the first time offender. On behalf of convict Vijay Kumar Varma, it is submitted that he is aged about 38 years. He remained in custody for 34 days. He is having wife and children in the family. Convict is also having old aged father aged about 65 years and old aged mother aged about 60 years in the family. He is the first time offender and there is no previous conviction of convict in any other case. It is submitted that a keeping in view the aged of the convicts and familial circumstances, they may be awarded minimum sentence provided under the law.
5 I have heard submissions of the parties. It is important to note that corruption by public servants has become a gigantic problem. It has spread everywhere and no facet of public activity has been left unaffected by the sting of corruption. It has deep and pervasive impact on the functioning of the entire country and large scale corruption retards the national building activities and AC No.01/2011 CBI Vs. Virender Singh etc. Page 62 of 64 everyone has to suffer on that count. Corruption is corroding our country like cancerous lymph nodes and demoralising the honest officers. The efficiency in public service would improve only when public servant devotes his sincere attention and does his duty diligently, truthfully, honestly and devotes himself assiduously to the performance of his duty to the post.
6 Keeping in view the circumstances under which the offences were committed, convicts are sentenced as under :
(i)Convict Virender Singh is awarded sentence of four years rigorous imprisonment with fine of Rs.25,000/ for the offence punishable under section 120B IPC read with section 13(2) read with 13(1)(d) of the P.C. Act. In default of payment of fine, he shall further undergo SI for six months. Convict is awarded sentence of four years rigorous imprisonment with fine of Rs.25,000/ for the offence punishable under section 7 of the P.C. Act. In default of payment of fine, he shall further undergo SI for six months.
Convict is also awarded sentence of four years rigorous imprisonment with fine of Rs.25,000/ for the offence punishable under Section 13(2) read with Section 13(1)(d) of P.C. In default of payment of fine, he shall further undergo simple imprisonment for six months.
(ii)Convict Vijay Kumar Varma is awarded sentence of four years rigorous imprisonment with fine of Rs.25,000/ for the offence punishable under section 120B IPC read AC No.01/2011 CBI Vs. Virender Singh etc. Page 63 of 64 with section 13(2) read with 13(1)(d) of the P.C. Act. In default of payment of fine, he shall further undergo SI for six months.
7 All the sentences of convict Virender Singh shall run concurrently. The convicts shall be entitled for the benefit of the provision of Section 428 Cr.PC. Copies of judgment and order on sentence be given free of cost to the convicts.
File be consigned to record room.
Announced in the open Court ( P.S. TEJI )
Dated: 19.09.2014 District & Sessions Judge(East)
Special Judge (CBI)
Karkardooma Courts : Delhi
AC No.01/2011 CBI Vs. Virender Singh etc. Page 64 of 64