Delhi District Court
State vs .. Surender Singh Page No.1 Of 38 on 19 December, 2014
1
IN THE COURT OF SH. NAROTTAM KAUSHAL,
SPECIAL JUDGE (PC Act)05, (ACB), (CENTRAL),
TIS HAZARI COURTS, DELHI
Date of Institution : 02.05.2013
Date of reserving the Judgment : 08.12.2014
Date of pronouncing the Judgment : 15.12.2014
Corruption Case No. : 13/2013
FIR No. : 5/2008
Case Identification No. : 02401R0221962013
Police Station : Anti Corruption Branch
Under Section : 7 & 13(i)(d) of Prevention of
Corruption Act
STATE
Versus
SURENDER SINGH
S/o Sh.Sher Singh
R/o Q.No.324, TypeA,
Police Colony, Shalimar Bagh, Delhi
&
H.No.BH/692B,
East Shalimar Bagh, Delhi
State Vs.. Surender Singh Page No.1 of 38
2
JUDGMENT
1.1 On 15.02.2008 one social worker Kiran Chauhan W/o Kishan Pal Singh Chauhan made a complaint at Anti Corruption Branch that on 7.02.2008 a quarrel between her husband and one Chandan and Raju had taken place, for which she made a call at number 100. One Head Constable Surender along with 34 constables came to attend the call and took her husband to police post of sector 16, Rohini. He demanded Rs.10,000/ as bribe to release her husband. But on her repeated requests he agreed to accept Rs. 4000/. Telephonic conversation between her and HC Surender regarding demand of the bribe was got recorded in the presence of panch witness. A transcript of the recorded conversation was prepared.
1.2 Acting upon the complaint a team of officers of Anti Corruption Branch along with complainant and panch witness was constituted. After completing the formalities, they all proceeded to lay a trap near DDA park, Sector 16, Rohini, behind Police post; but accused Surender Singh did not turn up to collect the bribe money. Complainant spoke to the accused on phone who told her that he will collect the money on some other day. The matter was kept pending from 15.2.08 to 19.02.08 and then the case was registered on the basis of recorded conversation. Accused was summoned to the PSACB and confronted with the CD. He was arrested. His voice samples was collected. Voice State Vs.. Surender Singh Page No.2 of 38 3 sample of complainant was also taken. Voice samples and recorded conversation stored in CD were sent to the FSL, Rohini, Delhi. As per the FSL report, voice samples and the voices recorded in the CD matched with each other.
2 Finding sufficient material against the accused, he was charge sheeted for offences punishable u/sec.7 & 13 of Prevention of Corruption Act, 1988 (hereinafter called as 'the PC Act'). Charge sheet was filed in the court on 02.05.2013. Cognizance of offences punishable u/sec.7 & 13 of the PC Act was taken. Accused Surender Singh was summoned to appear before the court. On his appearance, proceedings u/sec.207 Cr.P.C. were complied with. After hearing the accused, vide order dated 07.08.2013, Charge for offence punishable u/sec.7 of the PC Act was framed. Accused pleaded not guilty and claimed trial. 3.1 Prosecution, in support of its case, examined 33 witnesses. Complainant Kiran Chauhan was examined as (PW6). She sang a story very different from her version given to the IO, during investigation. She deposed that on 07.02.2008, a quarrel had taken place between her and one Chandan. On her call to police, 45 officials came and got the dispute settled. Despite settlement, Chandan used to send Police Officials to her house. She, therefore, approached Anti Corruption Branch (hereafter called as 'PSACB'). On being further examined, she identified the State Vs.. Surender Singh Page No.3 of 38 4 complaint Ex.PW6/A to be in her hand writing and under her signatures. She, then, deposed that on 07.02.2008 officials of PSACB, gave her Rs. 4,000/ with instructions to hand over the same to the Police Officials at PP Sec.16, Rohini, who had been harassing her. She waited for the said official but he did not turn up and the money was returned to PSACB. She had signed certain documents and statements at PSACB. She had been using mobile phone bearing no. 9891060423. She was declared hostile and on being crossexamined by Ld. Addl. PP, she admitted that on 07.02.2008, a quarrel had taken place between her husband and one Chandan & Raju. She had made a call to PCR and officials of PP sec.16, Rohinii came to her house, on this call. She also admitted that her husband was taken away along with Chandan and Raju by those officials. She denied rest of the prosecution case regarding preraid proceedings. She denied that at the time of raid, she talked to accused or in response to her call, accused promised to come at 07:30 PM. She denied that accused had demanded bribe from her for releasing her husband. On being crossexamined by Ld. Defence Counsel, she admitted that whenever she went to PSACB, she signed documents and articles in good faith but was not explained the contents of articles/ documents. 3.2 Krishan Pal Singh Chauhan (PW20) is the husband of the complainant. This witness has given a different date of the occurrence. Instead of 07.02.2008, he deposed that in April2008, there was a quarrel State Vs.. Surender Singh Page No.4 of 38 5 between him and Chandan. His wife Kiran Chauhan made a call to PCR. 34 officials from PPSec.16 came and took him along Chandan to the Police Post. He was detained at PP Sec.16 till 11:30 PM and thereafter, released. There was no demand by the Police Officials from him. He was declared hostile and crossexamined by Ld. Substitute PP. He denied the entire case of prosecution regarding demand by accused for releasing him from custody. On being crossexamined by ld. defence counsel, he denied the suggestion that he was never detained at PP sec.16, Rohini for any quarrel with Chandan.
3.3 Panch witness Krishan Pal Maan (PW24) has deposed that on 15.02.2008, he was on panch witness duty at PSACB. He was called by the RO at 03:15 PM, when complainant Kiran Chauhan came. She informed of a quarrel between her husband and Chandan on 07.02.2008 and a report to PP sec.16, Rohini and also that HC Surender who was conducing the enquiry, had demanded Rs.10,000/ for not arresting her husband. On 15.02.2008, complainant called up HC Surender on his mobile phone using her own mobile phone at about 03:30 PM, but no effective conversion could take place. She again called up about 15 mins later and during this discussion HC Surender i.e. the accused agreed to reduce the amount of demanded bribe to Rs.4,000/ and time of meeting was fixed at 07:30 PM. This telephonic talk between the accused and complainant was heard by him as well as Inspector Jai Prakash; as the State Vs.. Surender Singh Page No.5 of 38 6 phone was on loud speaker Mode. Kiran Chauhan, thereafter, wrote down her complaint Ex.PW6/A. Witness has further deposed about the preraid proceedings, wherein, he was demonstrated the use of phenolphthalein powder, complainant was instructed to do the transaction in a manner so that he could hear the conversation. They left with the raiding team at about 05:00 PM and reached PP Sec.16, Rohini, Delhi at about 06:00 PM. He and the complainant started towards Police Post and they waited for the accused near the weekly market. Complainant called up the accused at about 06:00 PM, who assured to reach by 07:30 PM. They waited for him till 08:00 PM. At about 08:00 PM, complainant again called up the accused, who told her that he would not come. He has, further, deposed about the CD of recorded conversation having been prepared and seized in his presence. On being cross examined by Ld. Addl. PP, he correctly stated the mobile number of complainant and the accused. On being crossexamined by Ld. defence counsel, he deposed that he had reported for panch witness duty at PS ACB on 3040 occasions. He denied that he was a stock witness. He denied that he had not heard the telephonic conversation between the complainant and the accused, made with phone on speaker mode. He, however, admitted that he can not say with certainty that the person on the other side of the phone call was accused HC Surender or not. He stated that it had taken about 2030 minutes in writing complaint Ex.PW6/A. He denied that complaint was written on return from the State Vs.. Surender Singh Page No.6 of 38 7 spot, on the dictation of RO. He also denied that his signatures on the complaint were put subsequently. He, further, deposed that complainant had called up the accused four times on 15.02.2008 in his presence. First two conversations, which had taken place at PSACB were recorded. Subsequent two conversations were made from the spot near the weekly market and were not recorded. He denied that complainant made 3 phone calls from the spot to the person, whom she was addressing as Surenderji.
3.4 ASI Diwan (PW12) was the duty officer at PSACB on 19.02.2008 between 02:00 PM to 08:00 PM. He proved recording of FIR bearing no.05/2008 at 05:20 PM. He proved Kayami DD with respect to the aforesaid FIR. HC Jitender (PW19) was the MHC (M) at PSCivil Lines on 23.01.2009, when Inspector Avinash Sharma deposited one sealed parcel with him. On 24.06.2009, he sent three sealed parcels to CFSL, CBI, Lodhi Road through Ct. Ravi Pratap. HC Jai Prakash (PW15) was MHC (M) at PSCivil Lines on 24.09.2009. He deposed that 2 cassettes CSVI & CSVII were deposited by Inspector Naresh Kumar with him. On 04.11.2009, he sent CSVI to CFSL, Lodhi Road through Ct. Devender Kumar (PW16). On 01.04.2010, Ct. Arun Mathur (PW18) deposited four sealed parcels brought from CFSL, Lodhi Road, with MHC(M). HC Om Prakash (PW3) was MHC (M) at PSCivil Lines on 19.02.2008. Inspector Kailash Chandra had deposited two CDs in the Malkhana. Ct. Ram Pratap State Vs.. Surender Singh Page No.7 of 38 8 (PW5) had collected the exhibits on 26.06.2009 from PSCivil Lines and deposited the same in CFSL, Lodhi Road. The aforesaid witnesses proved safe keeping and safe custody of the case property, as long as it remained in their respective custody.
3.5.1 Karnail Singh (PW27) has deposed that on 15.02.2008, Inspector Jai Prakash Meena (RO) handed over a mobile phone to him, which contained conversation dated 15.02.2008 between the complainant and the accused. He transferred the data from her phone to his office computer and prepared CDs of the same. On 19.02.2008, RO again gave him a phone of the complainant, which contained recording of conversation dated 07.02.2008 between the complainant and the accused. He again transferred the data from phone to computer and prepared CDs, thereof. On 19.02.2008, the CDs were played in the presence of SHO, PS Prashant Vihar, who identified the voice of accused. On being cross examined by ld. defence counsel, he deposed that he did not issue any certificate u/sec.65B of the Indian Evidence Act to the IO for the proceedings dated 15.02.2008 & 19.02.2008. He did not know if the IO had seized the phones or the memory cards. However, the hard disc of the computer was not seized. On 17.06.2008, accused gave his consent for offering his voice sample, in the presence of Ravi Madaan Panch Witness (PW8). Gautam Roy - Sr. Scientific Officer (PW23) of CFSL, CBI, Lodhi Road recorded the voice sample of the accused on 23.01.2009 in presence State Vs.. Surender Singh Page No.8 of 38 9 of Vijay Kumar Paul - panch witness (PW7). The cassette containing voice sample was seized, vide seizure memo Ex.PW7/C. Voice sample of complainant Kiran Chauhan was recorded at FSL, Rohini by Sunil Kumar (PW17) on 24.02.2009, in presence of panch witness Ravinder Kumar Kukreja (PW11). Both the aforesaid voice samples were compared at CFSL, Lodhi Road by Dr. Rajender Singh (PW10). On analysis, he submitted his report Ex.PW10/A opining that the questioned voice of Surender Singh and Kiran Chauhan, matched with their respective sample voices.
3.5.2 SI Bal Kishan (PW22) identified the voices in recorded conversation contained in CD Ex.P5 to be 'probable' voices of complainant and the accused. Ajad Singh (PW21) was panch witness to the aforesaid proceedings. ACP Naval Kishore (PW25) had joined investigation on 19.02.2008 and identified the voice of accused in the recorded conversation contained in CD Ex.P5. Bhagwati Prasad (PW9) was associated as panch witness on 20.02.2008, when the transcripts of recorded conversation were prepared by the IO.
3.6 HC Akhtar Ali (PW14) proved the duty roaster dated 07.02.2008 of PP Sec.16, Rohini. He also proved list of staff members and there telephone numbers as Ex.PW14/B. He further deposed that telephone number of ASI Bal Kishan was 9911586137 and that of accused State Vs.. Surender Singh Page No.9 of 38 10 HC Surender was 9899142125. He further identified accused HC Surender to be the person on emergency duty on 07.02.2008 at PP Sec.16, Rohini from 08:00 AM to 08:00 PM. He also proved DD no.29 Ex.PW14/D, vide which a complaint was marked to accused at 02:45 PM.
3.7 Israr Babu - Nodal Officer (Vodafone)(PW2) proved that accused was subscriber of phone no. 9899142125. He also proved the CDR of the aforesaid mobile from 05.02.2008 to 20.02.2008 and its Cell ID Chart. The CDR was accompanied by certificate u/sec.65/B of the Indian Evidence Act. On being crossexamined by Ld. Defence Counsel, he also identified the bill of the aforesaid phone for the period 28.01.2008 to 27.02.2008 as Ex.PW2/DA. He also deposed that registered consumer is presumed to be user of the phone. Pawan Singh - Nodal Officer (Idea Cellular) (PW13) proved that complainant Kiran Chauhan was the subscriber of phone no.9891060423 and ASI Bal Kishan was the subscriber of phone no. 9911586137. The witness could not produce the call detail record of the phone of complainant, as the same had been destroyed. Call detail record collected by the IO during investigation and the bills of the phone of the complainant were shown to the witness and the CDR was marked as Mark PW13/C. He, however, proved the call details record of the phone used by SI Bal Kishan as Ex.PW13/F. On going through the call details record and the Cell ID Chart, he deposed that call made from the phone of ASI Bal Kishan to the mobile phone of accused State Vs.. Surender Singh Page No.10 of 38 11 on 07.02.2008 at 19:41 Hours was from the vicinity of Rohini, Sec.16, Delhi. Both the phones were in the same vicinity. Similarly, he deposed that call made from the phone of complainant to the accused on 15.02.2008 at 15:31 hours and 15:52 hours was made from the area of Old Secretariat.
3.8 HC Satpal (PW29) deposed that he had been previously posted as Beat Constable at PP Sec.16, Rohini, Delhi, as a predecessor to accused. He, therefore, knew complainant, as her house was in his Beat. On 07.02.2008, he was using phone no. 9868970237 and he received repeated calls from complainant requesting him to approach the accused, who was present in her house, in connection with a complaint against her husband. He denied the prosecution case that complainant told him that accused had demanded Rs.10,000/ from her for release of her husband. HC Surender (PW30) was with the accused on 07.02.2008, when they visited the house of the complainant. He deposed that accused informed him that the matter had been settled between the parties. He denied the prosecution case that accused brought complainant's husband to the police post for enquiries.
3.9 ACP Jai Prakash Meena (the then Inspector) (PW26) was the Raid Officer. He deposed that on 15.02.2008 complainant came to him at about 04:10 PM and wrote her complaint Ex.PW6/A in the presence of State Vs.. Surender Singh Page No.11 of 38 12 panch witness. Complainant was regarding demand of bribe of Rs. 4,000/ by the accused. Complainant made a phone call to the accused in presence of the RO and the panch witness with the phone on speaker mode and was also simultaneously recorded in her mobile phone. The conversation lasted about 1 min. & 9 secs. Another call was made by complainant in similar manner to the accused, which lasted 1 min. & 36 secs. The recorded phone conversations were transferred to CD by SI Karnail Singh. The witness has, further, proved the pretrap proceedings regarding demonstration of use of phenolphthalein powder, instructions to the complainant & panch witness, noting down of serial numbers of currency notes, etc. He has then deposed that they left for raid and reached near PP Sec.16, Rohini at 06:00 PM. Complainant and panch witness went ahead followed by the raiding team. Complainant made a phone call to accused, who promised to reach the spot at 07:30 PM to collect the bribe. However, accused did not turn up till 08:00 PM, when the raid was called off. He, further, deposed that on 19.02.2008 conversation dated 07.02.2008 stored in the mobile phone of complainant was transferred to CD. He identified the CDs Ex.P5 & Ex.P7, containing the recordings dated 15.02.2008 & 07.02.2008, respectively. On being crossexamined by ld. defence counsel, he clarified that complainant had met him at 03:10 PM on 15.02.2008 and played the conversation lasting 1 min & 9 seconds in his presence. She, then, went to senior officers and returned to him at about 04:10 PM. The conversation lasting 1 min. & 9 State Vs.. Surender Singh Page No.12 of 38 13 secs. was made at 03:10 PM, when she had first met him. Second Call was made at about 04:20 PM. Complainant had remained in his room between 03:15 PM to 04:00 PM. Panch witness came at about 03:50 PM. He, further, stated that both phone calls were made by the complainant in the presence of the panch witness. He stated that it would be wrong to say that complainant made first call at about 03:30 PM on 15.02.2008 to accused. Complainant explained him the delay in making the complaint, on the ground that she had been negotiating with the accused, as the demand was initially of Rs.10,000/. He did not know if the mobile phone shown to him by the complainant on 19.02.2008 containing the recording dated 07.02.2008 was the same phone which she was possessing on 15.02.2008. On 15.02.2008 when he closed the proceeding at 9.00 PM, prima facie offence u/s 7 PC Act was made out. However, rukka was not prepared between 15.2.2008 and 18.2.2008, as senior officers had advised him to wait for the recording of 7.2.2008 to be heard. He denied that he was giving a false explanation, to create an alibi for delay in preparing the rukka. He admitted that the original phone/ phones of complainant were not taken into possession by him. He further deposed that treated GC notes remained with the complainant, as the raid had failed. He had not made enquiries from PP Sector 16, Rohini, whether any investigation was pending with the accused regarding dispute between complainant's husband and Chandan. He denied the suggestion that the panch witness K.P. Maan was a stock witness of PS ACB. He did not ask the State Vs.. Surender Singh Page No.13 of 38 14 complainant, if she had recorded phone calls made by her to the accused from the spot i.e. near the STD/PCO, sec.16, Rohini. 3.10 ACP Kailash Chander (PW31) was then posted as Inspector in PSACB and was the first IO of the present case. He had gone with the raiding team on 15.2.2008 and had returned from the spot at about 8.00 PM, when the RO told him that raid had failed. On 19.2.2008, copy of FIR, rukka and sealed parcels were given to him by the duty officer. CDs kept open for investigation were played and transcripts prepared. He recorded statements of complainant and panch witness, collected the call detail records of the phone of complainant, accused and ASI Bal Kishan. He also recorded the statements of other witnesses. Further investigation was done by Inspector Avinash Sharma (PW28). He got identified the voice of accused Surender by his SHO Naval Kishore and ASI Bal Kishan. He also got recorded the sample voice of accused. Further investigation was conducted by Inspector Naresh Dahiya (PW32). He got recorded the voice sample of complainant Kiran Chauhan. He sent the specimen voice sample and the recorded CDs to CFSL, CBI for comparison. He also sought the sanction for prosecution of the accused. ACP Ravinder Tyagi (PW33) was the last IO. He prepared the challan and submitted the same in court.
State Vs.. Surender Singh Page No.14 of 38 15 3.11 ACP Mahipal Singh (PW1) proved the biodata of accused. Arun Kampani (PW4) was DCP, 7th Btl., DAP in June 2010. He was the authority competent to remove the accused and had granted sanction for his prosecution.
4 Incriminating evidence that had come up against the accused was put to him and his statement u/s 313 Cr. P.C. was recorded. He denied that he demanded Rs. 10,000/ as illegal gratification from complainant or that after negotiation he settled for the amount of Rs. 4,000/ as a reward for release of her husband from custody. He stated the sanction to be invalid. Recording of FIR and Kayami DDs were disputed. Deposit of case property in malkhana was denied for want of knowledge. He denied that complainant in the presence of panch witness and RO had made phone calls to him at about 3.45 PM, when he agreed to reduce the demand of bribe to Rs.4,000/ and agreed to meet the complainant at 7.30 PM. He claimed the CDs of recorded conversation to be fabricated. He denied the raid proceedings. He denied that his consent for voice sample was voluntarily. He disputed the FSL report. He denied knowledge of mobile phone numbers of complainant and ASI Bal Kishan. However, he admitted his mobile number as 9899142125. He denied that on 15.2.2008 at 15.31 hours and 15.52 hours calls were made from complainant's phone to his phone, from nearby the area of Old Secretariat. He denied for want of knowledge that complainant talked to State Vs.. Surender Singh Page No.15 of 38 16 HC Satpal on 7.2.2008 and sought favour for her. He claims to have been falsely implicated on the basis of fabricated recordings. He claimed that he had not apprehended or confined anybody in any connection with the PCR call marked to him on 7.2.2008. He did not make any demand at any point of time or on 15.02.2008. He had never made any call to the complainant nor had any conversation with her.
5 Accused sought opportunity to lead defence evidence and examined three witnesses. SI Uday Singh ( DW1) from the RTI Cell of PS ACB proved information supplied to the accused under RTI Act as Ex. DW1/A to Ex. DW1/D, which are copies of some DD entries. Ct. Devinder ( DW2), Outer District, Delhi also proved certain DD entries supplied to the accused under RTI Act. SI Rajiv Rana (DW3) from the 7 th Btl. proved the character roll of the accused, which is the record of rewards and satisfactory work & conduct report of the accused. 6 Shri B.B. Bhasin, Ld. Additional PP on behalf of the State has argued that even if the complainant has not fully supported the prosecution case; yet, the testimony of panch witness corroborated by the Raid Officer and the circumstances of telephone communication between accused and complainant, prove the prosecution case as regards the demand of bribe by the accused from the complainant. The attending circumstance of complainant's husband having been involved State Vs.. Surender Singh Page No.16 of 38 17 in quarrel with his neighbour is proved vide DD entry Ex. PW4/DA. HC Satpal (PW29) has deposed that complainant spoke to him at the time when accused was visiting his house. Despite the accused claiming that the matter was settled at the spot, there is no explanation as to why he kept DD number 43 pending till 7.10 PM of 08.02.2008. SI Bal Kishan (PW22) admits of call from the complainant and talk between accused and the complainant. Call detailed record of the phone of the accused Ex. PW2/C which is supported by certificate u/s 65B of Indian Evidence Act, proved that accused had received calls from the complainant on 15.2.2008 at 15.31 hours and 15.52 hours. There is no explanation by the accused as regards purpose of the call or contents of the calls. Two witnesses who have heard the calls when made on speaker mode have proved their contents. Complainant who has apparently turned hostile can be ignored, when there is sufficient direct evidence of demand of bribe. As regards the electronic evidence not supported by certification u/s 65B Indian Evidence Act i.e. CDs containing recorded conversation and the CDR of the phone of the complainant, Ld. Additional PP has not disputed the law laid down in Anvar P.V. Vs. P.K.Basheer reported as Manu/SC/0834/2014.
7 Sh. Sanjay Gupta, Ld. defence counsel has argued that present case is a case of no evidence. Referring to charge it is submitted that prosecution was required to prove demand of bribe on 15.02.2008 at State Vs.. Surender Singh Page No.17 of 38 18 7.30 PM. Complainant has altogether denied of any demand having been made by the accused. She has also denied any telephonic conversation with the accused. She has even disputed her voice in the recorded conversation. Her complaint Ex. PW6/A cannot be read in evidence as proof of demand. Assailing the electronic evidence in the shape of CDs Ex. P5, P7 and call detailed record Mark PW13/C reliance has been placed upon cases of Acchey Lal Yadav Vs. State decided on 04.09.2014 in Crl. Appeal no.1171/2012 and Anvar P.V. Vs. P.K.Basheer reported as Manu/SC/0834/2014. It is further submitted that even the FSL report Ex. PW10/A is not admissible evidence. Certificate Ex. PW2/E with respect to Call Detailed Record Ex. PW2/C is assailed on the ground that certificate is not properly worded in terms of Section 65 of Indian Evidence Act. It is next argued that prosecution has not led any evidence about the alleged currency notes. Proceeding dated 19.2.2008 with respect to preparing the rukka and lodging of FIR is disputed on the ground that no panch witness was associated. It is next argued that panch witness PW24 is a stock witness, as he had reported at PS ACB on 30 to 40 occasions. Reliance has been placed on law laid down in Pyare Lal Vs State I (2008) DMC 806 Delhi and Ashish Kumar Dubey Vs State 2014 (111) AD ( Cr.) (DHC) 421. It is next argued that accused is an honest officer who has received several Commendation Certificates and has been falsely implicated. RO/ACP Jai Prakash (PW26) has destroyed the entire case by deposing the time of calls contrary to the prosecution State Vs.. Surender Singh Page No.18 of 38 19 case. It is, therefore, argued that prosecution case has no legs to stand upon and accused deserve acquittal.
8 Ld. Additional PP in rebuttal has argued that the charge is not happily worded as regards the time of demand of bribe. However, no prejudice has been caused to the accused as the entire evidence led before him referred to the time of calls, made by complainant to him on 15.02.2008 to be 03:30 & 03:50 PM, when the demand was renegotiated. All witnesses were cross examined by ld. defence counsel, keeping in mind the time of phone calls to be 3.30 and 3.50 PM on 15.2.2008. Reference to section 215 Cr.P.C. has been made. It is further argued that while answering question No. 10 in statement u/s 313 Cr. P.C., accused has referred to 'talks' meaning thereby he admits both the calls. Further question No. 23 spells the exact time of calls made from complainant's phone to the phone of the accused.
9.1 I have heard the Ld. counsels and with their assistance gone through the evidence and documents on record.
9.2 Before adverting to the evidence in detail, it shall be appropriate to deal with the admissibility aspect of electronic evidence. Prosecution has placed heavy reliance upon recorded conversations contained in CDs Ex. P5 and Ex. P7. Complainant has denied any State Vs.. Surender Singh Page No.19 of 38 20 telephonic conversation between her and the accused. She has also denied the conversation to have been recorded on her phone or transferred to the computer and converted into CDs. Karnail Singh (PW27) has, however, deposed that he prepared the CDs on 15.02.2008 and 19.02.2008 of the recorded conversations, extracting the same from the mobile phone/ phones of complainant. He specifically deposed that he had not issued any certificate u/s 65B Indian Evidence Act with respect to the CDs. Hard Disk of his computer was not seized. This witness in his examination has not certified that the computer used for preparing the CDs was in his exclusive lawful control or that it was being used for such purpose in ordinary course or that the computer had not developed any snags during this period. RO/ACP Jai Prakash Meena (PW26) was not even sure if the recordings of 7.2.2008 and 15.2.2008 were contained in the same mobile phone of complainant. It is not the case of the prosecution that mobile phone of complainant containing the recorded conversation was kept in safe custody or that it was not capable of erasing or introducing contents. There is also no evidence as to what were the technical configuration of her mobile phone or whether the same could be manipulated to add or delete some portion. There is no evidence that SI Karnail Singh was in exclusive use and possession of the computer. There is also no evidence whether contents of the recordings had remained in mobile phone/ phones of the complainant or whether the same were erased. There is thus, neither oral nor formal State Vs.. Surender Singh Page No.20 of 38 21 certification as envisaged u/s 65B Indian Evidence Act. I am, thus, of the opinion that recorded conversations as contained in CDs Ex.P5 and Ex. P7 are hit by the law laid down in Anwar P.V. 's case wherein it was held as under: "Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under subsection (2) are satisfied, without further proof or production of the original. The very admissibility of such a document i.e. electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65B(2). Following are the specified conditions u/sec.65B(2) of the Indian Evidence Act:
(i) The electronic record containing the information should have been produced by the computer, during the period over, which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having State Vs.. Surender Singh Page No.21 of 38 22 lawful control over the use of that computer;
(ii) The information of the kind contained in electronic record or of the kind from, which the information is derived was regularly fed into the computer in the ordinary course of the said activity;
(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and
(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity. U/sec.65 (4) of the Indian Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:
(a) There must be a certificate, which identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned u/sec.65 B(2) of the Indian Evidence Act; and
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device."State Vs.. Surender Singh Page No.22 of 38 23
This court is, therefore, of the firm opinion that CDs Ex. P5 and Ex. P7 have no evidenciary value and cannot be read in evidence. Consequently, FSL report Ex. PW10/A which is result of analysis of conversation contained in CD Ex. P5 has no evidenciary value. Transcript of the recorded conversation Ex. PW9/A can also not be read in evidence. Similarly call detailed record of the phone of the complainant which was collected by the IO during investigation and marked as Mark PW13/C can also not be read in evidence, as there is no certification u/s 65B of Indian Evidence Act.
9.3 I, however, do not subscribe to the defence argument that Call Detailed Record of the phone of the accused Ex. PW2/C is also hit by the law laid down in Acchey Lal Yadav's case, with respect to this record. A study of the testimony of Israr Babu (PW2) reveals that he has proved certificate u/s 65B of Indian Evidence Act regarding correctness of CDR produced by him. A further study of certificate Ex. PW2/E reveals that he has duly certified that the conditions laid down in section 65B (2) (a) to section 65B (2)(d) of the Evidence Act, regarding admissibility of computer output in relation to the information and the computer in question are fully satisfied in all aspects. There is no cross examination of the witness as regards his certificate about the conditions spelled out in section 65B (2) of the Evidence Act. The testimony and the certificate State Vs.. Surender Singh Page No.23 of 38 24 may not meet the exactness spelled in Acchey Lal Yadav's case but it does state, though, in an omnibus manner that the requisites are satisfied. In the cited case the witness had neither deposed about the specifics nor had furnished any certificate u/s 65B Evidence Act. Therefore, I reject the defence argument that Call Detailed Record Ex.PW2/C cannot be read in evidence.
10 Accused was a public servant amenable to the Provisions of the PC Act has been proved by his biodata Ex.PW1/A. Sanction to prosecute him Ex.PW4/A was proved by Sh.Arun Kampani sanctioning authority (PW4). In the backdrop of admissibility of electronic evidence as noticed above, I shall now discuss the oral testimony. The questions that need to be answered by the prosecution are as under:
(i) Whether on 7.2.2008 a quarrel had taken place between the complainant's husband and Chandan, which was reported to PCR and whether accused HC Surender picked up her husband for enquiry in the PCR call made by the complainant?
(ii) Whether accused made any demand of bribe from the complainant for releasing her husband?
State Vs.. Surender Singh Page No.24 of 38 25 11.1 QUESTION NO. 1
(i) Whether on 7.2.2008 a quarrel had taken place between the complainant's husband and Chandan, which was reported to PCR and whether accused HC Surender picked up her husband for enquiry in the PCR call made by the complainant?
To prove this aspect of prosecution case first and formost, the evidence of the complainant Kiran Chauhan is material. Initially she deposed that a quarrel had taken place on 7.2.2008 between her and one Chandan. She made a call to police and 4/5 officials came and got the dispute settled. She identified complaint Ex.PW6/A to be in her hand writing and under her signatures, which mentions about quarrel between her husband & Chandan. On being cross examined by Ld. Additional PP she admitted that on 7.2.2008 a quarrel had taken place between her husband and one Chandan & Raju. In response to call made by her to PCR, officials of PP sector 16, Rohini, came to her house and took away her husbabd, Chandan and Raju. Complainant's husband Krishan Pal Chauhan (PW20) gave a wrong date of occurrence, but more or less supported the prosecution case. He deposed that on a quarrel between him and Chandan, his wife called PCR. 34 officials from PP Sector 16, Rohini came and took him along with Chandan to police post. He was detained at PP till 11.30 PM and thereafter released. On being cross examined by Ld. defence he denied the suggestion that he was never detained at PP Sector 16, Rohini for any qurrel with Chandan. State Vs.. Surender Singh Page No.25 of 38 26 11.2 HC Surender (PW30) has deposed that he was on duty with the accused on 7.2.2008 when they visited the house of complainant. HC Satpal (PW29) deposed that he was predecessor to the accused at PP Sector 16, Rohini and he knew the complainant. On 7.2.2008 he received repeated calls from the complainant requesting him to approach the accused, who was present in her house in connection with a complaint against her husband.
11.3 SI Bal Kishan (PW22) has also deposed in similar terms. He has deposed that on 7.2.2008 he received a phone call from the complainant at about 2.45 PM informing him that her husband had been picked up by accused and 45 other officials and taken to PP Sector 16, Rohini. She requested him to speak to the accused for releasing her husband. She made 34 more calls to him in the next few hours. At about 6.00 PM he again spoke to the complainant who told him that her husband was involved in a quarrel and had been taken to PP Sector 16, Rohini. Complainant requested the witness to speak to the accused for not implicating her husband in those proceedings. He, then, called up the complainant, at about 7.30 PM seeking more details about the occurrence. He has further deposed that complainant again called him up and he sent his phone in switched 'On' condition to the accused through a Constable. The witness on being cross examined by Ld. Additional PP admitted Call Detailed Record Ex.PW2/C of his phone and State Vs.. Surender Singh Page No.26 of 38 27 also admitted that there were eight incoming calls from the phone of the complainant on 7.2.2008 between 2.47 PM to 10.56 PM and four out going calls from his phone to that of complainant. On being cross examined by Ld. defence counsel, the telephone calls were tried to be explained to be in context of dowry case of complaint's daughter wherein he was the IO. However, in view of his clear and unequivocal statement in the examination in chief detailing the reasons for the calls on 7.2.2008, the suggestion of defence has no significance. DD No.43 Ex. PW4/DA, which is recorded by the accused himself also contains averment that on 7.2.2008 he had visited the house No. J353, Sardar Colony, Sector 16, Rohini on an intimation of quarrel between Krishan Pal Chauhan and Chandan.
11.4 From the evidence as noticed above, there is no escape to the conclusion that on 7.2.2008 there was a quarrel between complainant's husband and one Chandan, which was marked to accused for enquiry and went to complainant's house for enquiry. He brought complainant's husband to the police post and released him at 11.30 PM in the night. During this time complainant made frantic calls to the previous beat officer HC Satpal (PW29) and ASI Bal Kishan (PW22) of PP Sector 16, Rohini requesting them to approach the accused seeking favour from the accused. As per testimony of Bal Kishan (PW22) the favour sought was for releasing her husband and for not implicating him State Vs.. Surender Singh Page No.27 of 38 28 in the proceedings, qua the quarrel being enquired into by the accused. Thus , question No. 1 posed by this court is answered in the affirmative. 12.1 QUESTION NO. II
(ii) Whether accused made any demand of bribe from the complainant for releasing her husband?
It is the case of the prosecution that accused had made the demand from the complainant on 7.2.2008 itself. However, the best witness to vist of 07.02.2008 & demand in the said date has not supported her own complaint. Mere proof of complaint does not lead to the conclusion that any demand was made by the accused on that date. Though, from the testimony of HC Satpal (PW29) and SI Bal Kishan (PW22), it can be gathered that complainant wanted them to seek a favour for her from the accused, for releasing her husband and for not implicating him in the case. However, none of these two witnesses has stated that accused had demanded bribe for the favour sought by the complainant.
12.2 It is further the case of the prosecution that on 15.2.2008 complainant reached PS ACB and lodged complaint Ex. PW6/A. At the time of writing the complaint Ex. PW6/A, she made phone calls to the accused from her mobile phone, in loud speaker mode in the presence of State Vs.. Surender Singh Page No.28 of 38 29 panch witness Krishan Pal Maan and Raid Officer Jai Prakash Meena, wherein the demanded amount of bribe was negotiated to Rs.4,000/. To prove this part of prosecution case the most material witness cited by the prosecution, complainant Kiran Chauhan has turned coats. She has denied making any call to the accused on 15.2.2008 from PS ACB. Despite lengthy cross examination by Ld. Additional PP she did not agree to having made any phone calls on 15.2.2008, wherein accused demanded bribe from her. However, panch witness Krishan Pal Maan ( PW24) has deposed that he was called by the RO to join the proceeding at 3.15 PM, when complainant arrived. She informed of a quarrel between her husband and Chandan on 7.2.2008 and demand of bribe by the accused for not arresting her husband. He further deposed that at 3.30 PM she called up the accused in his presence but no effective conversation could take place. She again called him up about 15 minutes later and during this discussion accused agreed to reduce the amount of bribe to Rs. 4,000/ and fixed meeting time at 7.30 PM. On being cross examined by Ld. defence counsel he denied that he had not heard the telephonic conversation between complainant and the accused. He specifically deposed that phone was on speaker mode. ACP Jai Prakash Meena ( PW26) ( Raid Officer) has also deposed about the phone calls made by the complainant on 15.2.2008 in his presence and in the presence of panch witness, with the phone on speaker mode when the demand was reiterated by the accused. He has also deposed that these calls were State Vs.. Surender Singh Page No.29 of 38 30 being simultaneously recorded in her mobile phone. He gave call duration to be 69 and 96 seconds, respectively. On being cross examined by Ld. defence counsel Raid officer created a great confusion about the time of aforesaid calls. He deposed that the first call was made at 3.10 PM and second at 4.20 PM and panch witness had joined the proceeding at 3.50 PM. He further deposed that both calls were made by the complainant in the presence of panch witness. He also stated that it would be wrong to say that first call was made at 3.30 PM. 12.3 From the evidence as noticed above, factum of phone calls having been made by the complainant to the accused on 15.2.2008 from PS ACB, with the phone on loud speaker mode is established beyond reasonable doubt. It is also deposed that by panch witness and the RO that during these calls the complainant and accused negotiated the demand of bribe and accused agreed to accept Rs. 4,000/. Challenge by the Ld. defence counsel to this part of prosecution evidence is by highlighting that RO and panch witness do not corroborate each other as regards the time when the aforesaid calls were made. This controversy is, however, settled by referring to the call detailed record of the phone of accused (Ex. PW2/C). As discussed in para 9.3 above, admissibility of CDR Ex. PW2/C has been accepted. CDR Ex. PW2/C records an incoming call from phone No. 9891060423 on 15.2.2008 at 15.30.58 Hours which lasted 171 seconds and another call at 15.51.42 Hours which lasted 92 State Vs.. Surender Singh Page No.30 of 38 31 seconds. These two calls, at about 3.30 and 3.50 PM, received on the phone of the accused from the phone of the complainant, corroborate the prosecution case as proved by Panch witness and the RO, as regards the calls having been made. The timings indicated in the CDR corroborate the timings stated by panch witness and broadly as stated by the Raid Officer. In my opinion discrepancy in timing stated by the RO can be explained, to be a little amiss, because of gap of almost 6½ years in the occurrence and date of testimony. Israr Babu (PW2) has proved CAF and established that accused was subscriber of phone no.9899142125. It shall be relevant to refer to the cross examination of Israr Babu ( PW2) by Ld. defence counsel, wherein he answered that subscriber of the phone i.e. accused in the present case is presumed to be user. Pawan Singh (PW13) has proved customer application form and established that complainant was subscriber of phone no. 9891060423. Complainant herself has also not disputed to be the user of 9891060423. I, thus, hold that prosecution has proved beyond reasonable doubt that on 15.2.2008 complainant made phone calls to the accused from PS ACB in the presence of panch witness and RO, wherein accused agreed to accept Rs. 4,000/ instead of his previous higher demand of bribe. Pawan Singh (PW13) has deposed that location of phone of complainant on 15.02.208 at 15:31 & 15:52 Hrs was in the vicinity of Old Secretariat. This is the area, where office of PSACB is located. The phone calls having been made on loud speaker mode were heard by the panch State Vs.. Surender Singh Page No.31 of 38 32 witness and the RO. This piece of evidence when put to the accused, in his statement u/s 313 Cr. P.C was simply denied by him. Reference may be made to questions No. 10 and 23. Apparently the answers by the accused are incorrect as Call Detailed Record establishes these calls to have been made. Failure of the accused to explain the purpose of these calls is a very material aspect, which supports the prosecution case that conversation during these calls were with respect to the bribe demanded by him.
12.4 Complainant (PW6), on being crossexamined by Ld. Addl. PP, admitted that her husband had been taken away by the accused. SI Bal Kishan (PW22) has deposed that complainant informed him of accused having brought her husband to Police Post Sec.16, Rohini and that she wanted him to put in a word to the accused for releasing her husband. Complainant's husband Krishan Pal Singh Chauhan (PW20) has also deposed that he had been brought to PP sec.16 by the accused and released at 11:30 PM on 07.02.2008. Thus, establishing that complainant's husband was in the custody of accused from the after noon of 07.02.2008 till 11:30 PM, during which time, she had been making frantic efforts to approach the accused through SI Bal Kishan & HC Satpal. Another aspect, which raised presumption against the accused, is that he closed the PCR call enquiry against complainant's husband on 08.02.2008 at 07:10 PM, whereas it is the case of defence that matter was State Vs.. Surender Singh Page No.32 of 38 33 settled between the parties at the spot, itself on 07.02.2008. I, thus, hold that there is evidence beyond reasonable doubt that accused was making demand from complainant of bribe for releasing her husband. Question no.2, posed by this court is, also, thus answered in affirmative. 13.1 First and foremost argument of Ld. defence counsel, that evidence led by prosecution is not in the conformity with the charge framed, is answered by referring to Section 215 Cr. P.C. It is correct that the time of demand mentioned in the charge is 7.30 PM on 15.2.2008, whereas the evidence led is with respect to demand at 3.30 PM and 3.50 PM on 15.2.2008. For ready reference section 215 Cr. P.C. is reproduced herein below: 215: No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars , shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice.
The line of cross examination of the prosecution witnesses reveals that defence was at no stage misled about the prosecution case State Vs.. Surender Singh Page No.33 of 38 34 regarding time of demand of bribe. There has been no failure of justice as each of the material witnesses were cross examined at length with respect to the discrepancy of time of calls i.e. 3.30 and 3.50 PM. Questions to this effect were posed in statement u/s 313 Cr. P.C,. which the accused chose not to explain. I, therefore, find no merit in this argument of ld. defence counsel.
13.2 It has next been argued by Sh. Sanjay Gupta that panch witness Krishan Pal Maan ( PW24) was a stock witness. It is pointed that he admitted in his cross examination that he had reported to PS ACB on 30 to 40 occasions. Relying upon Pyare Lal Vs State I (2008) DMC 806 Delhi and Ashish Kumar Dubey Vs State 2014 (111)AD (Cr.) 421, he is sought to be declared a stock witness. However, this court does not find merits in this argument as well. The witness had though, reported for panch witness duty on 30/40 occasions, but had not joined any proceedings on any of his prior visits. In Pyare Lal's case (supra) the panch witness had been associated in traps on three occasions, whereas in Aashish Kumar Dubey's case the witness had been nominated four days in advance for that particular raid. In the present case there is no evidence that Krishan Pal Maan was nominated in advance particularly for the present case. I, therefore, do not subscribe to the view that panch witness Krishan Pal Maan was a stock witness.
State Vs.. Surender Singh Page No.34 of 38 35 13.3 It has also been argued by Ld. defence counsel that there being no evidence of complainant's husband having been brought to PP Sector 16, Rohini, there was no motive or cause to demand bribe. This argument is also merit less. SI Bal Kishan (PW22) and complainant's husband have both deposed that her husband had been brought to PP Sector16, Rohini and was released after 11.00 PM. Accused had enquired into the complaint of quarrel between complainant's husband and Chandan. Complaint apprehended her husband to be implicated by accused as a result of the enquiry being conducted by him. He, thus, had ample occasion and motive to demand bribe.
14 For the reasons stated above, I hold that prosecution has proved beyond reasonable doubt that accused had demanded bribe from the complainant, which he negotiated during the phone calls on 15.2.2008 at 3.30 and 3.50 PM. Prosecution case as regards offence punishable u/sec.7 of the PC Act stands established, beyond reasonable doubt. Accused is accordingly convicted of the aforesaid offence. 15 Before parting with the final judgment, it shall be pertinent to dispose of the application u/sec.340 Cr.P.C. moved by the Ld. Addl. PP. As discussed in paras 10 to 13 above, it is apparent that the complainant Kiran Chauhan has made a false statement under oath before the court. State Vs.. Surender Singh Page No.35 of 38 36 She denied having made any phone call to the accused from PSACB on 15.02.2008 at 03:30 & 03:50 PM and that during these conversations, the accused demanded bribe from her. This denial by her is contradicted by the call details record Ex.PW2/C and the oral testimony of panch witness & raid officer. She has admitted complaint Ex.PW6/A to be in her hand writing and under her signatures, whereas, on oath she has denied the contents of the aforesaid complaint. Apparently, she is liable for prosecution u/sec.193 IPC. I, therefore, find merits in the application moved by the Ld. Addl. PP and authorise the Reader of this court to file a complaint on behalf of this court against Kiran Chauhan w/o Sh.Krishan Pal Singh Chauhan R/o H.No.J353, Sec.16, Rohini, New Delhi before Ld. CMM, Central District, Tis Hazari Courts, Delhi.
Announced in the open Court (NAROTTAM KAUSHAL)
on 15.12.2014 SPECIAL JUDGE (PC ACT)05
(ACB), TIS HAZARI COURTS
State Vs.. Surender Singh Page No.36 of 38
37
IN THE COURT OF SH. NAROTTAM KAUSHAL,
SPECIAL JUDGE (PC Act)05, (ACB), (CENTRAL),
TIS HAZARI COURTS, DELHI
Corruption Case No. : 13/2013
FIR No. : 5/2008
Case Identification No. : 02401R0221962013
Police Station : Anti Corruption Branch
Under Section : 7 & 13(i)(d) of Prevention of
Corruption Act
STATE
Versus
SURENDER SINGH
S/o Sh.Sher Singh
R/o Q.No.324, TypeA,
Police Colony, Shalimar Bagh, Delhi
&
H.No.BH/692B,
East Shalimar Bagh, Delhi
ORDER ON SENTENCE
1. Vide judgment dated 15.12.2014, Surender Singh stands convicted for offences punishable u/sec.7 of the Prevention of Corruption Act (hereinafter called as 'the PC Act'). Vide the present order, I shall sentence him for the aforesaid offence.
2. Sh. B.B. Bhasin, Ld. Addl. PP has prayed for a stringent sentence. It is submitted that the convict who was Head Constable in Delhi Police indulged in corrupt activity. He demanded bribe from Kiran Chauhan for release of her husband, who was involved in a quarrel with her State Vs.. Surender Singh Page No.37 of 38 38 neighbour and was in the custody of accused. Convict thus misused his position as public servant. His conduct and action do not deserve any lenient approach. Imposition of high fine, to serve as a deterrent has also been prayed for.
3. Sh. Sanjay Gupta, Ld. counsel for the convict has prayed for a lenient approach. It is submitted that convict has large family to support which include his three young children of the age of 21 years, 19 years and 17 years., besides his wife. Elder daughter is of marriageable age. It is also submitted that convict is the sole bread earner of the family. Prayer has also been made for taking lenient approach, as regards the imposition of fine.
4. I have heard the Ld. counsels. Considering the large family of convict which is dependent upon him; I am inclined to take a lenient view. I am of the opinion that ends of justice shall be served by sentencing the convict to undergo rigorous imprisonment for a period of one year, for the offence punishable u/s 7 of the PC Act. He shall also be liable to pay a fine of Rs. 10,000/ and in default of payment of fine, he shall further undergo simple imprisonment for a period of two months.
Announced in the open Court (NAROTTAM KAUSHAL)
on 19.12.2014 SPECIAL JUDGE (PC ACT)05
(ACB), TIS HAZARI COURTS
State Vs.. Surender Singh Page No.38 of 38