Delhi District Court
Cbi vs Ramesh Chand Dewan on 29 January, 2018
IN THE COURT OF MANOJ JAIN
SPECIAL JUDGE (PC ACT) (CBI)-04: TIS HAZARI COURTS: DELHI
CNR NO. DLCT01-004598-2015
NEW CC NO. 532347/2016
RC No. DAI-2015-A-0017
CBI Versus Ramesh Chand Dewan
S/O late Sh. Tara Chand Dewan
R/O Village Garhi Ujale Khan,
Panipat Road, Near Jamohan Maruti
Showroom, Shastri Vihar, PS Gohana,
District Sonepat, Haryana.
Date of Institution : 05.12.2015
Date of Conclusion of Final Arguments : 19.01.2018
Date of Judgment : 29.01.2018
Memo of Appearance:
i) Sh. A.K. Rao, learned Sr. P.P. for CBI
ii) Sh. Rajiv Mohan, learned defence counsel
JUDGMENT
PROSECUTION VERSION 1.0 Complainant Rajbir Singh (PW-3) had a son Dharmender who got married to Sameena on 5.2.2014. Such alliance proved to be tumultuous. Sameena reported the matter to PS Narela which eventually resulted in registration of FIR No. 604/2015 under Sections 498-A/406 IPC. Such FIR, inter-alia, was directed against complainant Rajbir Singh also.
1.1 Investigation of such FIR had been entrusted to Sh. Ramesh Chand Dewan (accused herein) who was, at the relevant time, posted as Sub Inspector, PS Narela. Accused started demanding bribe of Rs. 15,000/- from Rajbir Singh threatening that if such demand was not met, he would implicate him and his family and would send them to jail.
CNR NO. DLCT01-004598-2015 Page 1 of 381.2 Since complainant did not want to grease his palms, he reported the matter to CBI on 15.7.2015 with a written complaint (Ex. PW 3/A) (D-2).
1.3 SI Smt. Veer Jyoti (PW-5) verified the contents of complaint in the presence of independent witness Karambir Sharma (PW-10). A call was made to accused by complainant from CBI office which confirmed the demand of bribe from the suspect official i.e. accused Ramesh Chand. Such call was also recorded in a memory card (Q1) with the help of a DVR. As per further discreet enquiry carried out next day, it stood revealed that suspect official was not enjoying good reputation.
1.4 Accordingly, FIR No. DAI-2015-A-0017 was registered on 16.7.2015 by CBI and investigation was entrusted to Insp. R.C. Sharma (TLO) (PW14).
1.5 Trap was decided to be laid. Sh. R.C. Sharma ensured the presence of independent witnesses, i.e. Satbir Singh (PW-9) and Karambir Sharma (PW-10). Trap team comprised of other CBI officials including Smt. Veer Jyoti besides the complainant and independent witnesses.
1.6 Complainant informed TLO that he could arrange a sum of Rs. 10,000/- only instead of Rs. 15,000/-. He produced such amount of Rs. 10,000/- (20 GC Notes of 500 denomination). After explaining about the objective behind treatment of notes with phenolphthalein powder and giving a demonstration to that effect, all such notes were treated with said powder and were put in the left side chest pocket of kurta worn by complainant. He was directed not to touch the same and to hand over the same to accused on his specific demand.
1.7 Digital Voice Recover, which had been used earlier on 15.7.2015 for verification purpose, was put into use again. A new memory card (Q2) was arranged. Functioning of DVR was explained to complainant and independent witnesses. After ensuring its blankness and after recording introductory CNR NO. DLCT01-004598-2015 Page 2 of 38 voices of both the independent witnesses, it was decided that the said DVR would be given to the complainant at the spot in switch on condition so that likely conversation between him and accused gets recorded therein.
1.8 Trap team left CBI office at about 1410 hours and reached near Narela police station at about 1520 hours. A call was made to the accused by complainant to ascertain his whereabouts. Mobile of complainant was put on 'speaker mode' and the ensuing conversation revealed that suspect official, i.e. Ramesh Chand Dewan was away to the court and told him that he would reach PS at about 1700 hours. Such conversation was also recorded in DVR. At 1615 hours, a call was received from accused who informed the complainant that he would be reaching police station within 15-20 minutes.
1.9 Accused was found entering the Police Station at 1625 hours and then complainant and shadow witness Satbir Singh were directed to proceed inside the police station and were briefed again to give per-arranged signal after the bribe transaction. DVR was switched on and was handed over to complainant which he put in the left front side of his kurta pocket.
1.10 When complainant and Satbir Singh reached the room of accused, accused asked about Satbir Singh. Complainant then introduced him as his cousin but accused did not allow Satbir Singh to enter inside and directed him to wait outside. Inside the room, accused demanded bribe from complainant. Complainant handed over bribe amount to him. Thereafter, he gave call to TLO indicating about the transaction of bribe. He also gave pre- decided signal to Satbir Singh who was waiting outside the room. Trap team rushed inside. TLO challenged the accused about the fact that he had accepted bribe of Rs. 10,000/- from complainant on which accused got perplexed and kept mum.
1.11 Hand washes of the accused confirmed that he had accepted the bribe amount. On instructions, Karambir Singh recovered the bribe money from the right backside pocket of pants of accused. Number and CNR NO. DLCT01-004598-2015 Page 3 of 38 denomination of GC Notes were tallied. An extra pair of pants was arranged and accused was directed to change the pants. Wash of the inner lining of the back pocket of such pants of accused was also taken in the colorless solution which also turned pink. Spot conversation, as recorded in memory card (Q-2), corroborated the demand and acceptance.
1.12 Accused was accordingly arrested. Further investigation was carried out. Accused gave his voice specimen voluntarily. The transcription of the conversation contained in Q-1 and Q-2 was prepared. Statements of witnesses were recorded. The call detail record (CDR) and Customer Application Form (CAF) of the relevant mobile Numbers were obtained. The exhibits containing washes were sent to CFSL and report of chemical expert gave positive test for presence of phenolphthalein and sodium carbonate.
1.13 After obtaining sanction for prosecution of accused from the competent authority, the charge sheet was filed for commission of offences under Section 7 and 13 (2) read with 13 (1) (d) of P.C. Act, 1988.
COGNIZANCE AND CHARGES 2.0 Charge-sheet was submitted on 05.12.2015.
2.1 Cognizance was taken on 18.12.2015 and accused was directed to be summoned.
2.2 Report of CFSL with respect to voices contained in Q1 & Q2 was also obtained from CFSL and placed on record.
2.3 Arguments on charge were heard and vide order dated 02.05.2016, accused was ordered to be charged for commission of offences under Sections 7, 13 (1) (d) r/w Section 13 (2) PC Act.
CNR NO. DLCT01-004598-2015 Page 4 of 382.4 Charge was framed accordingly to which accused pleaded not guilty.
PROSECUTION EVIDENCE 3.0 Prosecution was directed to adduce evidence.
3.1 It examined fifteen witnesses. These are as under:-
S. No. Name of witness Purpose of examination/ to prove 1 PW1 Ms. Deepti Bhatnagar, Sr. Report of hand washes and pants pocket Scientific Officer-II, CFSL, CBI wash showing phenolphthalein and sodium carbonate 2 PW2 Insp. Jai Prakash, SHO PS He was apprised about the arrest of Narela accused at PS itself. He also provided relevant documents related to FIR No. 604/15 PS Narela 3 PW3 Rajbir Singh, complainant Verification call and bribe transaction 4 PW4 Pradeep Kumar, office from Customer application form and CDR of BSNL Mobile No. 9416323694 of complainant 5 PW5 Insp. Vir Jyoti, CBI Verification and Spot proceedings.
6 PW6 R.S. Yadav, MTNL Customer application form and CDR of Mobile No. 9013493354 of accused Ramesh Chand Dewan 7 PW7 Pradeep Singh, Vodafone Customer application form and CDR of Mobile Service Ltd. Mobile No. 9050754094 of complainant 8 PW8 Chander Shekhar, Bharti Airtel Customer application form and CDR of Ltd. Mobile No. 8527415746 of subscriber Sunil Kumar (belonging to accused) 9 PW9 Satbir Singh, Shadow Witness Bribe transaction 10 PW10 Karambir Sharma, Verification proceedings and bribe Independent Witness transaction 11 PW11 Sh. S.K. Tiwari, DCP Sanction for prosecution of accused 12 PW12 S. Ingarsal, Sr. Scientific Preparation of four copies of Q1, Q2 & S1 Officer-I, CFSL, CBI 13 PW13 Amitosh Kumar, Sr. Scientific Report of voice examination Officer, CFSL, CBI 14 PW14 Insp. R.C. Sharma, TLO Trap proceedings 15 PW15 Insp. Manoj Kr. Jaiswal, Final Final Investigation Investigating Officer CNR NO. DLCT01-004598-2015 Page 5 of 38 VERSION OF ACCUSED
4.0 Accused, in his statement under Section 313 Cr.P.C., pleaded innocence.
4.1 He denied that he had ever extended any threat to the complainant or demanded any money. He claimed that anticipatory bail application had been filed by the son of complainant Rajbir Singh and since relief of 'advance notice' had been given by the court, there was no apprehension of arrest. He did admit about exchange of calls between him and complainant but vehemently denied either about any demand or any acceptance of bribe money.
4.2 According to him, complainant Rajbir Singh had been accused of serious allegations by his estranged daughter-in-law and since he was apprehending his arrest, to avoid the same, he, in connivance with other police officials, implicated him falsely in the present matter.
4.3 He also desired to lead evidence in defence and examined DW1 ASI Rajbir Singh and DW2 Ct. Ghan Shyam.
RIVAL CONTENTIONS 5.0 Sh. Rao, learned Sr. P.P. for CBI has contended that prosecution has been able to prove its case to the hilt. He has hugely relied upon the testimony of all the prosecution witnesses as well as on the scientific evidence. According to him, verification call clearly indicated the demand. While relying upon the conversation recorded in Q-1 and its transcript, Sh. Rao has contended that accused was acting very smartly. He seemed circumspect, clever, alert and cautious and, therefore, he avoided indulging in any specific demand but the crux of the conversation goes on to confirm that he wanted bribe from complainant.
CNR NO. DLCT01-004598-2015 Page 6 of 385.1 Sh. Rao has also contended that entire sequence of events, right from verification call till spot transaction, stand proved and all the concerned witnesses including complainant, shadow witness, recovery witness and TLO have fully corroborated one another on all the material aspects of the case.
5.2 Sh. Rajiv Mohan, learned defence counsel has refuted and resisted all the aforesaid contentions. He does admit that accused was the investigating officer of said case FIR No. 604/2015 PS Narela but at the same time, contends that once the relief had been granted by the Court of Sh. Gautam Manan, learned ASJ-01, North District, Rohini Courts vide order dated 04.06.2015, there was neither any occasion for arresting the complainant or any of his other family members nor there was any apprehension to that effect.
5.3 According to him, persons accused in FIR No. 604/2015 could not have been, even otherwise, arrested without there being sanction of arrest from the concerned superior police authorities and moreover, before arresting anyone, I.O./accused was duty-bound and legally-bound to serve five days' notice.
5.4 Sh. Rajiv Mohan has asserted that accused had rather served the complainant and his son with notice under Section 41 (A) of Cr.P.C. which itself indicates that he did not want to arrest them. It has been claimed that Rajbir was already assisted by a competent counsel when anticipatory bail application of his son was entertained by the Court on 04.06.2015 and he would have certainly contacted his counsel even after receiving the notice under Section 41 (A) Cr.P.C. and would have, on consultation, felt assured that there was no question of any arrest.
5.5 It has also been supplemented by Sh. Rajiv Mohan that verification call does not inspire any confidence and also that the verification memo is not in synchronization with the allegedly recorded conversation.
CNR NO. DLCT01-004598-2015 Page 7 of 38Nowhere accused seems to have made any demand and the inference drawn by prosecution is neither possible nor legitimate. It has also been highlighted by Sh. Rajiv Mohan that when the complainant and shadow witness entered into witness box, they were not found supporting the case of prosecution and, therefore, they were immediately declared hostile and were cross-examined at length by the prosecution and, therefore, whatever they deposed before the Court, was based on specific suggestions put to them by the learned prosecutor during such cross-examination and, therefore, the utterances made by them during such cross-examination do not have any evidentiary value. According to him, if their such deposition is accepted, it would rather compromise the principle of fair trial.
5.6 Sh. Rajiv Mohan has also claimed that for the reasons best known to the investigating agency, nothing audible was found contained in the spot conversation which smacks of some fabrication and manipulation. He has also questioned the scientific reports pertaining to hand-washes and voice expert.
5.7 Written submissions have also been placed on record by defence. Sh. Mohan has also relied upon various precedents which I would advert to at appropriate places.
EVALUATION OF EVIDENCE 6.0. I have given my thoughtful consideration to the rival contentions and perused the entire material available on record in the backdrop of the aforesaid contentions made at the bar.
6.1. I would be evaluating the evidence under various heads. The crucial aspects would be the ingredient of demand, manner of verification, spot transaction as well as evidentiary value of testimony of complainant and shadow witness.
CNR NO. DLCT01-004598-2015 Page 8 of 38NATURE OF MATTER PENDING WITH ACCUSED 7.0 Admittedly, FIR No. 604/15 was registered with PS Narela on 18.5.2015 and the investigation had been marked to accused SI Ramesh Chand Dewan. In this regard, reference be also made to the testimony of PW-2 Inspector Jai Prakash who was posted as SHO, PS Narela at the relevant time. He has deposed that said FIR had been entrusted to SI Ramesh Chand (accused herein) by the earlier SHO Sh. Prabhu Dayal. Even defence does not dispute such aspect.
7.1 Certified copy of the record relating to FIR no. 604/15 PS Narela was handed over to CBI by PW-2 SHO Jai Prakash vide memo Ex. PW 2/A (D-7). Such record would show that said FIR was registered against Dharmender, his father Rajbir Singh and their other family members for commission of offences under Sections 498-A/406/34 IPC. Undoubtedly, SHO/Inspector Jai Prakash did admit in cross-examination that he never received any complaint against accused SI Ramesh Chand with respect to said investigation and that he did not notice any defect in the investigation conducted by the accused but fact remains that PW-3 Rajbir Singh has clearly alleged that accused had demanded bribe from him.
7.2 Such record also shows that Dharmender (son of PW-3 Rajbir Singh) had moved an application seeking anticipatory bail and the court of Sh. Gautam Manan, Ld. Addl. Sessions Judge-01 (North), Rohini, holding that there was no apprehension of arrest, dismissed the application on 4.6.2015 while also directing that in case applicant Dharmender was required to be arrested, 5 days' advance notice be given to him. Copy of such order is also found in D-9.
7.3 Sh. Rajeev Mohan, Ld. defence counsel has argued that there was no further development in the matter and since even the permission had not been received for arrest of any accused, there was no occasion for the accused to have called Dharmender or for that matter his father Rajbir Singh CNR NO. DLCT01-004598-2015 Page 9 of 38 in relation to investigation and to demand any bribe from them for showing favour to them. He has also asserted that complainant has not made clear as to when he met accused prior to 15.07.2015 and, therefore, the aspect related to alleged demand remains hazy.
7.4 Said certified record of Narela case also comprises of notices under Section 41(A) Cr.P.C. which are addressed to Dharmender and Rajbir Singh. By virtue of such notices, accused SI Ramesh Chand Dewan had called them at PS Narela on 14.7.2015 at 4.00 PM. As per recital of such notices, it was also declared therein that if they failed to comply the notice, action would be taken against them as per law.
7.5 Sh. Rajeev Mohan has contended that it becomes very much evident and palpable that there was no malafide or any demand on the part of accused. He has supplemented that if at all there was any such thing, then accused SI Ramesh Chand would not have sent such notices which are obviously meant for those who are not to be arrested. Admittedly, notice under Section 41(A) Cr.P.C. is meant for such persons but there are two things which need to be appreciated. Firstly, notice itself does not suggest so and, therefore, any layman would not immediately assume that police had made up its mind, not to arrest the noticee. Secondly, the consequence of not adhering to the directions contained in the notice was highlighted and spelt out loudly by stating that and in case noticee did not report, he would invite action as per law. It meant arrest as well.
7.6 There is slight dispute as to how these notices were received by complainant Rajbir Singh. If complainant is to be believed, then he was made to sign these notices at police station on 9.7.2015. Defence has contended that such version of complainant is totally unbelievable in view of the testimony of DW-1 ASI Rajbir and DW-2 Ct. Ghanshyam. According to him, DW1 ASI Rajbir Singh had been entrusted with the job of serving such two notices and accordingly, he went to village Siwah, Diwana Road, Panipat on 9.7.2015 and served notices and in token thereof, Rajbir Singh had signed on CNR NO. DLCT01-004598-2015 Page 10 of 38 both such notices. It has, therefore, been claimed that complainant is not believable at all.
7.7 To me, this aspect of the case is hardly of any significance. Complainant also does not dispute that he had received the notices on 9.7.2015. It really does not matter whether he received notices at police station or at his native village. The important aspect which emerges out is that, at least, on 9.7.2015 the matter was very much alive in the sense that complainant Rajbir Singh had received the notices in relation to the investigation of the present case and he must have apprehended his arrest. As a layman, neither he knew that any permission from higher authority was required without which SI Ramesh Chand Dewan could not have arrested him nor SI Ramesh Chand seems to have shared any such thing with him.
7.8 Thus, it can be safely inferred that accused was seized of investigation for which he had called Sh. Rajbir Singh and his son. It must have, therefore, created apprehension of arrest in their mind, which must have given 'automatic window' to accused to exploit their such vulnerable position.
VERIFICATION CALL 8.0 Let me now come to the verification proceedings.
8.1 Rajbir Singh went to CBI office on 15.7.2015. In his written complaint Ex. PW 3/A (D-2), he alleged that accused had demanded a sum of Rs. 15,000- from him and had threatened that if bribe was not paid then he and his family members would be beaten up and put behind the bars. I need not remind myself that by that time, Rajbir Singh had already received notices under Section 41(A) Cr.P.C.
8.2 The verification job was entrusted to SI Veer Jyoti. Let me see her deposition.
CNR NO. DLCT01-004598-2015 Page 11 of 388.3 PW-5 Smt. Veer Jyoti has deposed that said complaint was marked to her by SP, CBI, ACB for verification. She perused the complaint and discussed about the allegations with the complainant. She arranged independent witness Karambir Singh through duty officer. Karambir Singh reached CBI office and he was introduced to the complainant and he also satisfied himself as regards the allegations in question. Thereafter, a DVR and a new memory card were arranged. As per PW-5 Smt. Veer Jyoti after assuring that DVR and memory card were empty, introductory voice of independent witness was recorded in such memory card and then complainant was directed to make a call from his mobile to the mobile of accused. She also directed the complainant to keep his mobile phone on 'speaker mode' so that such conversation could be recorded in the DVR.
8.4 The call was accordingly made and the conversation was heard and was also recorded in DVR. PW-5 Veer Jyoti has deposed that from the conversation, she felt that accused was talking with complainant very cautiously. She also felt that the conversation indicated that accused was threatening the complainant that if his demand was not acceded to, his case would be put in the court. She heard the recorded conversation twice. According to her, complainant was negotiating about the bribe amount with the accused and accused did no refuse to take any bribe.
8.5 Ms. Veer Jyoti has proved the verification memo as Ex. PW 3/B and has also deposed about the manner in which memory card (Q-1) was sealed. Both the other witnesses have also supported her on such aspect of verification call.
8.6 PW-10 Sh. Karambir Singh has deposed that he reached CBI office on 15.7.2015 and met Inspector Veer Jyoti and complainant. He has also deposed about meeting complainant as well as about recording of his own introductory voice through DVR. He has also deposed that complainant was directed to make a call to accused with direction to put his mobile on 'speaker mode'. He has also deposed that such conversation was recorded.
CNR NO. DLCT01-004598-2015 Page 12 of 38According to him, during such conversation complainant had asked the accused whether he should bring the money on which accused replied that "Likhit mae dena padega kya" [Should he give in writing?].
8.7 PW-3 Rajbir Singh has also deposed about the verification proceedings, arranging of independent witness, recording of introductory voice of such independent witness, making of call, recording of such all and preparation of verification memo.
8.8 His deposition would also indicate that he was using mobile device which was having facility of insertion of two SIM cards. He was having two mobile numbers viz 9050754094 and 9416323694 and both such SIM cards were in his said mobile device. He claimed that he did not remember as to out of the aforesaid two mobile numbers, which number was used for making the call. According to him, the recorded conversation was heard by lady officer Veer Jyoti as well as independent witness and such conversation revealed that SI Ramesh Chand Dewan had called him to bring bribe amount and had directed him to come next day at police station between 3 PM to 5 PM. As per PW-3 Rajbir Singh, during such conversation, accused had demanded bribe and threatened to arrest him, his wife and daughter in case bribe was not paid.
8.9 It will be now appropriate to make reference to the verification call as well as its transcription.
8.10 Transcription of such verification call is contained in D-10.
8.11 As per CBI, the transcription was prepared with the assistance of both the independent witnesses, i.e. Sh. Satbir Singh and Karambir Sharma and thereafter complainant was contacted who could not come to CBI office because of injury in his legs and, therefore, his confirmation with respect to authenticity of transcription was obtained from him from his residence. Transcription memo is dated 7.9.2015 and has been proved as Ex. PW 9/B CNR NO. DLCT01-004598-2015 Page 13 of 38 collectively.
8.12 I have gone through the transcription of Q-1 and heard the conversation during the course of final arguments also.
8.13 After the introductory voice of Karambir Sharma, there are four audio files, i.e. 150715_004 (01.25 minutes), 150715_005 (37 seconds), 150715_006 (32 seconds) and 150715_007 (02.29 Minutes). As far as second and third audio files are concerned, it is apparent that no conversation had taken place between complainant and accused and though the complainant had given calls to accused but accused did not pick up those two calls. As far as first conversation contained in 150715_004 is concerned it does not give any hint or suggestion with respect to any demand of bribe. The only important aspect is that accused had told the complainant it was up to him whether he wanted to come or not and that else he would submit the report in the court. It seems that due to said reason only, complainant was asked to make another call.
8.14 The conversation contained in audio file no. 150715_007 is important in the present context. During such conversation, complainant repeatedly told the accused as to when he should come so that as discussed earlier, he would pay the amount and finish the matter ( JO AAP SE BAAT HUE THI MAI WO BHI DE JAUNGA BAAT KHATAM HUE AUR KYA).
Accused did not express any surprise to such question of complainant and rather claimed that he was telling him (complainant) every day about the same. (MAI TO ROJ BATA RAHA HUE, TERE KO). When asked by complainant whether he should come to court or police station, accused responded that he needs in police station (MUJHE TO THANE ME HI CHAHIYE).
8.15 Complainant, during the aforesaid conversion, told the accused that he would come at police station and further confirmed from him whether he should bring 15 or 20. By this, he wanted to ask whether he should bring CNR NO. DLCT01-004598-2015 Page 14 of 38 Rs. 15,000/- or Rs. 20,000/-. Fact remains that the response, to said question, is unclear, inaudible and hazy and, therefore, nothing could be made out from his such response. However, when asked again, accused told that why he was wasting his time and he had other work also. Accused also told during the conversation that he had already given him in writing (LIKHIT ME DE RAKHA HAI AAPKO). When complainant again asked him whether he should given him 15 (meant as 15,000/-) or 20 (meant as 20,000/-), accused felt irritated and responded that whether he may ask once or hundred times and that he would be helpless and in case he (complainant) did not come then he would have to send adverse report to the court (EK BAR BULWA LO YA SOA BAR PHIR MAI MAJBOOR HUN). Thereafter complainant again kept on asking as to what bribe amount should be brought but there was no response as either the call got disconnected or the accused deliberately kept mum.
8.16 As regards said verification call, I have already mentioned above that even SI Veer Jyoti had felt that accused was talking very cautiously. It would have certainly better had such fact been clearly mentioned in the verification memo as well. However, omission on said score cannot be said to be fatal. Such conversation may not reveal any specific and explicit demand by the accused but importantly, accused did not express his astonishment about the utterances made by the complainant. When complainant kept on asking him as to whether he should bring 15 or 20, he did not question him or rebuke him and rather kept on avoiding the affirmative answer in a very tacit and clever manner. His response that his answer would remain the same whether asked once or hundred times and if complainant did not turn up, he would file adverse report speaks volumes.
8.17 Sh. Rajeev Mohan has raised issue with respect to such verification call and the conversation recorded therein. Firstly, according to him there was no demand which is otherwise sine qua non for attracting penal sections in question. Secondly, according to him when the complainant had reported the matter to CBI, he very specifically claimed that the demand CNR NO. DLCT01-004598-2015 Page 15 of 38 was of Rs. 15,000/-. That being so, the prosecution has not clarified as to why, therefore, complainant was asking whether he should bring 15 or 20? Defence has contended that logically any person who is willing to pay any bribe would not himself increase the amount and would rather try to negotiate to bring it to the minimum possible level but here complainant is found increasing the bribe amount. It has also been stressed by Sh. Rajeev Mohan that the entire conversation does not reveal any malafide on the part of accused. According to Sh. Rajeev Mohan, notice under Section 41(A) Cr.P.C. had already been served upon the complainant and, therefore, he was supposed to report to police station and accused only meant that in case complainant did not turn up then he would be forced to send his report to the court.
8.18 I would have believed the aforesaid contention of Mr. Mohan had the conversation been limited to that effect. However, the clear-cut use of words '15' or '20' by complainant demonstrates that complainant kept on enquiring as to what exact bribe amount should be brought by him and accused did not shun the same. He did not express any bewilderment. He was never taken aback. On the contrary, he responded in a very discreet and guarded manner. The conversation would thus suggest implied demand on the part of accused. It really does not matter as to why instead of 15,000/-, complainant claimed amount to be paid as 15,000 or 20,000. I, however, feel that complainant was not reading out anything from any text and his spontaneous utterance should not make the case suspectful. Defence contention that use of words '15' or '20' is in context of settlement of case, and not demand of bribe, has no legs to stand.
8.19 Sh. Mohan has argued that complainant had never visited police station on 14.7.2015 and has given evasive answers as to when he had lastly met the accused and, therefore, his version does not inspire confidence. To me such aspect does not carry much significance.
CNR NO. DLCT01-004598-2015 Page 16 of 388.20 I have seen the deposition of all the three important witnesses and the defence has not been able to impeach the aspect related to making of verification call as well as the contents thereof.
8.21 PW-3 Rajbir Singh was shown the transcription and the conversation recorded in Q-1 was played during the trial and he identified and admitted his own voice as well as voice of accused at the relevant portions. Of course, in his cross-examination, complainant failed to recall whether after the first verification call made on 15.7.2015, the phone got disconnected two times but such aspect would not mean that no verification call was made at all. He did claim that he did not remember whether in such conversation there was no word from the side of accused to show any demand or that he (complainant) himself had been offering the amount. It really does not matter whether the first demand had come from the side of accused or not. Complainant, in order to prove his point, kept on pricking the accused and repeatedly asked him as to what amount was to be brought and when and where. If at all the intention of accused was upright and honest, he would have immediately rebuked and scolded the complainant and would have disconnected the call but his indulging in the conversation and the responses given by him, as already noticed above, clearly go on to indicate that there was implied demand from his side.
8.22 Demand, in such types of matters, may arise at different stages.
8.23 It would be, surely, prior to reporting of the matter to investigating agency. Naturally, sans demand, there would not be any fun in lodging any report. It can exist, albeit for corroboration purpose, at the time of verification call and finally, it can be present whenever accused finds appropriate and suitable opportunity while face to face with complainant after laying of trap.
8.24 I do not have any reason to hold that Rajbir had gone to CBI unnecessarily or to implicate accused falsely in the matter. Of course, accused was well within his right to have called them to participate in CNR NO. DLCT01-004598-2015 Page 17 of 38 investigation. As per Sh. Mohan, Rajbir was, inter alia, indicted with serious molestation charges and since he apprehended arrest, complainant pre- empted such action by lodging false report. Such argument does not cut any ice. I am unable to comprehend as to how Rajbir could have averted such action. If arrest was justified as per record, then any subsequent I.O. would have also gone for the same course of action. Interestingly, despite alleged serious molestation charges, accused had shown his inclination not to arrest Rajbir by sending notice u/s 41(A) Cr.P.C. Such action thus stares on his face and shows that he had diluted the severity in lieu of his getting something in return.
8.25 Demand need not be in a particular shape or format.
8.26 There would be no problem in case the demand is clear and specific. But, there is no law that demand has to be specific and specific alone. The question of demand can be inferred from the manner and tone of conversation. Remaining non-committal and silent may also sometimes convey guilty mind. There is no straight jacket formula to ascertain demand. Significance of conversation as a whole is to be taken. One isolated word or line cannot be picked up either for the benefit of accused or for the benefit of prosecution. Need of the hour is to take a complete holistic approach.
8.27 I have seen the cross-examination of PW-10 Karambir Sharma and he also did not come up with anything specific which may put a question mark over the authenticity of verification call.
8.28 Right here, I would like to emphasize that as per such conversation related to verification call, accused had simply claimed that he had already given notice in writing to the complainant by uttering words "LIKHIT MAE DE RAKHA HAI AAPKO". However, investigating agency, in its over enthusiasm, misread and misinterpreted those words as if accused was telling the complainant that whether he should put forward his demand of bribe in writing (LIKHIT MAE DENA PADEGA KYA). To that extent, CNR NO. DLCT01-004598-2015 Page 18 of 38 investigating agency has evidently misconstrued the conversation.
8.29 Undoubtedly, initially the accused could not identify the complainant and asked as to which Rajbir was on the other side. This does not look surprising at all as complainant was carrying a mobile device having 2 SIM cards and the call in question went through the other SIM number which perhaps was not known to the accused and, therefore, he tried to ascertain the identity of the caller.
SPOT PROCEEDINGS 9.0 After the verification(s) made by PW-5 Veer Jyoti, FIR was registered on 16.07.2015. PW-14 Sh. R.C. Sharma was entrusted with investigation by SP Sh. Anish Prasad. PW-14 Sh. R.C. Sharma contacted Smt. Veer Jyoti who verified about the complaint of Sh. Rajbir Singh. Independent witnesses were procured and trap team was accordingly constituted.
9.1 Inspector R.C. Sharma also received copy of FIR along with other documents including verification reports. Complainant Sh. Rajbir Singh was asked to produce the bribe amount which was to be paid to the suspect officer. Sh. Rajbir Singh, however, produced Rs. 10,000/- only claiming that he could arrange that much only. All such notes were in the denomination of five hundred and were treated with phenolphthalein powder after giving a practical demonstration to that effect. Such tainted bribe amount of Rs. 10,000/- was kept in the left side chest pocket of complainant. It was ensured that complainant was not carrying any other thing except for said notes and his mobile phone. Necessary instructions were given to complainant. DVR was arranged. It was the same one which had been used earlier during the verification call. A new memory card (Q2) was arranged and as is usually done, after ensuring the blankness of memory card and after recording of introductory voices of independent witnesses, the pre-trap proceedings were concluded.
CNR NO. DLCT01-004598-2015 Page 19 of 389.2 Sh. Satbir Singh was directed to act as shadow witness and Sh. Karambir Sharma was directed to become a recovery witness.
9.3 The trap team left for PS Narela at about 3.10 PM. PW-14 R.C. Sharma has further deposed that vehicles were parked at a safe distance from PS Narela and complainant was asked to make a call to accused to ascertain his whereabouts. Such call was made by the complainant by putting his mobile on 'speaker mode' so that the conversation could be heard by team members. Such conversation was also recorded through DVR. Such conversation revealed that the accused was in the court and would reach the police station at 5.00 PM. Accordingly, it was decided to wait for him. After sometime, a call was received from accused on the mobile phone of complainant whereby he informed that he would be reaching within 15-20 minutes. However, such incoming call could not be recorded in the DVR.
9.4 After sometime, accused was found entering PS Narela. Complainant and shadow witness were directed to proceed inside the police station and they both were also reminded about giving of pre-appointed signal. DVR was handed over to complainant in 'switch on' mode so that likely conversation could be recorded therein. The other witness i.e. PW-3 Rajbir Singh, complainant, PW-10 Karambir Sharma, PW-9 Satbir Singh and PW-5 Ms. Veer Jyoti have also supported the aforesaid version of Inspector R.C. Sharma.
9.5 It would be now appropriate to switch over to the testimony of complainant and shadow witness.
9.6 PW-3 Rajbir Singh has although supported the prosecution version and has clearly indicted the accused but in his deposition dated 02.06.2016, when he claimed that the trap team had left CBI office for police station Narela, he created a little flutter by claiming that he did not make any call to the accused once they had reached near the police station. Therefore, CNR NO. DLCT01-004598-2015 Page 20 of 38 CBI sought permission to cross-examine him. Such permission was granted and during such cross-examination conducted by CBI, he made amends and claimed that he had, under some confusion and due to time-lapse, claimed that no call was made and corrected himself by claiming that such call was made.
9.7 Ideally, after such response given by complainant which was in synchronization with the version of the prosecution, the then learned P.P. should have avoided putting further leading questions. He should have informed the Court that the hostility had gone and, therefore, he would examine the witness without putting any leading question. Fact remains that the entire further examination of said witness, as conducted by prosecution, continued to be in the shape of cross-examination, though many portions of such evidence are in narration form which indicate that the witness had given answers of his own, without being confronted with any leading question.
9.8 Complainant deposed that accused called him by gesture and then he along with Satbir Singh went inside police station and reached the room of accused.
9.9 Earlier part of his testimony would indicate that when accused entertained the complainant, shadow witness was all along with him and such shadow witness was also able to see and hear everything However, in the later part of his testimony, complainant clarified that when they had entered said room of accused, he asked about the independent witness Satbir Singh, whom he, then introduced as his relative and then accused did not allow such shadow witness to remain present in the room.
9.10 As per the specific testimony of shadow witness PW-9 Satbir Singh as well, when they both entered the chamber of SI Ramesh Chand (accused), accused was found sitting with one or two persons and he directed them to come after sometime. After sometime, accused asked from complainant Rajbir Singh about him and then Rajbir Singh introduced him as CNR NO. DLCT01-004598-2015 Page 21 of 38 his cousin. On hearing the same, accused asked him to remain outside and, therefore, he (PW-9 Satbir Singh) came out of the chamber of accused. According to the further deposition of shadow witness, after few minutes, complainant came out of the chamber of accused and gave signal by scratching his head.
9.11 Reverting back to the statement of complainant Rajbir Singh, he deposed that inside the chamber of the accused, accused asked for the bribe amount. Complainant told him that he had brought the money and then accused took such bribe amount from him and kept the same in back side pocket of his pants. Thereafter, a signal was given to CBI officials by him giving a missed call as well as by raising his hand over his head. Trap team then rushed inside the room of accused. Accused became nervous on seeing CBI officials and tried to flee away but was stopped. Recording machine (DVR) was taken back from him by CBI officials and was switched off immediately. Thereafter, right hand as well as left hand of the accused were dipped in solution which turned pink. The currency notes were also recovered from the accused.
9.12 Here, I would like to point out one another small goof-up which complainant seems to have made in his deposition. He initially claimed that accused himself had taken out the currency notes from his pocket and gave those to CBI but then corrected himself immediately claiming that due to lapse of time, he could not narrate the said fact properly and rather it was Karambir Sharma who had recovered the bribe amount from the back pocket of pants of Ramesh Chand on the directions of CBI. Thereafter another pants was arranged and accused was asked to change the same. The pants, in which the accused had kept the bribe money, was then taken into possession and sealed. However, before that another solution of sodium carbonate was prepared and the wash of inner portion of back side pants pocket was taken. Such solution also turned pink. Numbers of recovered notes were also tallied with the numbers mentioned in the handing over memo Ex. PW5/E. CNR NO. DLCT01-004598-2015 Page 22 of 38 9.13 TLO Insp. R.C. Sharma has also supported the case of prosecution with respect to the post trap proceedings. He has deposed that after the accused and the shadow witness were directed to go inside the police station Narela, a call was received after sometime from the complainant which was indication regarding the transaction of bribe. He immediately altered the other team members and rushed to the spot, i.e. room of the accused. After entering the room, he gave his introduction as well as introduction of CBI team members and then challenged the accused as to whether he had demanded and accepted the bribe, upon which the accused became perplexed. DVR was taken back from the complainant and switched off. He has also deposed about taking of hand washes of the accused, recovery of bribe amount of Rs. 10,000/- by Sh. Karambir Singh from the right side back pant pocket of the accused and sealing of exhibits.
9.14 As per further deposition of PW14 R.C. Sharma, complainant was asked to narrate the incident who revealed that shadow witness was not allowed entry by the accused and when he met accused in his room, accused discussed about the pending FIR and during such conversation, accused demanded and accepted bribe of Rs. 10,000/-. He (accused) even counted the money with his both hands and kept the same in his back side pant pocket of right side.
9.15 Shadow witness was also asked to narrate the incident and he also corroborated the version of complainant.
9.16 PW-14 R.C. Sharma deposed that SHO PS Narela was informed about the trap and he was directed to produce the case file of said Narela case. SHO then produced such case file which was seized vide memo Ex. PW2/A (D-7). For want of infrastructure in police station Narela, it was decided that further proceedings be conducted at CBI office and accordingly all the trap team members, complainant and both the independent witnesses and accused reached CBI office where accused was arrested and his arrest- cum-personal search memo was prepared. Recovery proceedings were CNR NO. DLCT01-004598-2015 Page 23 of 38 conducted in CBI office and were concluded at about 11.30 PM and all concerned signed on recovery memo. Accused was produced before the court next day and thereafter further investigation was transferred to Sh. Manoj Kumar Jaiswal, Inspector CBI.
9.17 PW-5 Veer Jyoti, who was also part of the trap team, has also supported the prosecution case in toto. She has also deposed that TLO informed them that a call has been received from the complainant and then they all reached the room of SI Ramesh Chand. It was then informed by shadow witness that accused had accepted the bribe money and had kept the same in his right side back pant pocket. She has also deposed about taking hand washes, wash of inner lining of pants pocket of accused, recovery of bribe amount, information given to SHO and collection of case file from SHO, seizure of currency notes, preparation of site plan etc. 9.18 PW-10 Karambir Sharma has also fully supported the case of prosecution and has deposed that complainant and Satbir Singh were sent inside the police station with the directions if accused demands and accepts the bribe, they should give the signal by dressing their hairs with the help of their hands and also to give a missed call. He has also deposed about the receipt of missed call by CBI official after which they all rushed inside the police station. He has deposed that he was asked by CBI official to search pants of he accused. He first searched both front side pockets but nothing was found and then he searched right side back pocket of the pants and recovered Rs. 10,000/-. These currency notes were in the denomination of five hundred and the number of currency notes were compared. He has also deposed about the preparation of solution for the purpose of washes. However, recovery witness entered into unnecessary exercise of searching front pockets as well. Same was not required as it had been learnt by the trap team that the money had been kept in back pocket.
9.19 As already discussed above, DVR had been given to complainant. It was containing a new memory card so that likely conversation CNR NO. DLCT01-004598-2015 Page 24 of 38 between complainant and accused is recorded therein. Such DVR was given in 'switch on' condition and after the missed call given by complainant, CBI team reached inside the chamber of accused and then such DVR was taken back from the complainant and was switched off immediately.
9.20 Interestingly, as per TLO Sh. R.C. Sharma, he heard the conversation so recorded and such conversation confirmed the demand and acceptance of bribe. Fact, however, remains that the spot conversation (Q2) does not reveal anything substantial.
9.21 Q-2 contains four files, i.e. 150716_001, 150716_002, 150716_003 and 150716_004. First two audio files pertains to introductory voices of independent witnesses. Third file relates to conversation which complainant had with accused on mobile when he wanted to ascertain his whereabouts. However, the last conversation contained in file 150716_004, which was otherwise supposed to be of the utmost importance does not reveal anything. It only indicates that there was some conversation between complainant and accused in reference to said FIR but it does not suggest anything significant in the context of the present case. Precisely for said reason, the conversation could not be transcribed.
9.22 During the course of arguments, memory card Q-2 was requisitioned and the conversation was heard by the court in the presence of learned defence counsel and learned prosecutor. No head or tail could be made out from such conversation. It is not clear as to why conversation could not be recorded properly and it is not clear as to why TLO exaggerated by claiming that such conversation confirmed the demand and acceptance but fact remains that there does not seem to be any compelling reason to discard the oral testimony of complainant, shadow witness, recovery witness and Inspector Veer Jyoti. Their such deposition is also backed up by scientific evidence.
CNR NO. DLCT01-004598-2015 Page 25 of 38SCIENTIFIC EVIDENCE (A) Call Detail Record 10.0 A per the specific case of prosecution, complainant was carrying a device which was having two slots for SIM cards. Complainant was using mobile number 9050754094 and 9416323694. Accused was having mobile device containing two numbers including one number as 9013493354.
10.1 For proving the call record of said two mobile numbers of complainant, prosecution has examined PW7 Sh. Pradeep Singh and PW4 Sh. Pradeep Kumar.
10.2 As per verification memo, call was made in CBI office by the complainant from his device and from mobile number 9416323694. During investigation, it was, however, learnt that such call had rather emanated from other mobile number i.e. 9050754094. Record produced by PW7 Sh. Pradeep Singh also establishes the same. He is Nodal Officer of Vodafone Mobile Services and has proved Customer Application form (CAF) of subscriber Rajbir. CDR has been proved as Ex. PW7/B and certificate given under Section 65B Indian Evidence Act has been proved as Ex. PW7/C. Testimony of said witness is unrebutted. Such CDR, contained in D-16, shows that call was made on 15.07.2015 at 17:02:17 having duration of 75 seconds and thereafter, there is another call made same evening at 17:10:39 to the same number of accused having duration as 137 seconds. Both these calls are outgoing calls.
10.3 I have also seen the record with respect to other mobile number of complainant. CDR of 9416323694 has been duly proved and such CDR nowhere reflects that any call was made by complainant to the mobile of accused on 15.07.2015. A careful perusal of CDR of both said mobile numbers also reflects that same mobile device was used in relation to both the aforesaid numbers as the IMEI number is same. It corroborates that complainant was carrying a mobile device which was containing two SIMs.
CNR NO. DLCT01-004598-2015 Page 26 of 3810.4 Accused was carrying mobile number 9013493354 and relevant documents are contained in D-17. Reference be made to the testimony of PW6 Sh. R.S. Yadav who has proved the relevant record i.e. customer application form (showing accused Ramesh Chand to be the subscriber of mobile number), CDR for the period 10.07.2015 to 17.07.2015 and certificate under Section 65B Indian Evidence Act. Evidence of Sh. Yadav is also unrebutted and uncontroverted. Such record confirms that accused had received two calls from the mobile of complainant (9050754094) in the evening of said durations at said time. CDR of another number has also been proved.
10.5 All the aforesaid relevant CDRs indicate that there was conversation between complainant and accused on 16.07.2015 as well.
(B) Report of Chemical Expert 10.6 Chemical examination report has been proved as Ex. PW1/A. 10.7 As already noticed above and as is evident from the case of prosecution, three sealed glass bottles were sent to CFSL/CBI for carrying out chemical analysis. These bottles were described as LHW (containing left hand wash of accused), RHW (containing right hand wash of accused) and PPW (containing pant pocket wash of accused).
10.8 As per report of PW1 Ms. Deepti Bhargava, Sr. Scientific Officer Gr.II-cum- Assistant Chemical Examiner, all these exhibits, on examination, gave positive test for the presence of phenolphthalein and sodium carbonate. Undoubtedly, color of the solution with respect to the alleged LHW and RHW was found to be very light pink in colour but it is evident from the ultimate analysis that the solution containing in said three bottles was having presence of phenolphthalein and sodium carbonate.
CNR NO. DLCT01-004598-2015 Page 27 of 3810.9 Testimony of PW1 Ms. Deepti Bhargava seems convincing and credible. I have seen her cross-examination very carefully and since she had brought case file of the laboratory, defence was permitted to see the same and then to question her, if required. Defence has, while making reference to the record brought by her, tried to assert that exhibits were received by her in unsealed condition or were improperly sealed. Sh. Rajiv Mohan has drawn my attention towards the check-list of exhibits of such acceptance. He has argued that description appearing in such check-list goes on to demonstrate that exhibits were either unsealed or not properly sealed. Undoubtedly, there is not enough of clarity as to what Ms. Bhargava meant by the endorsement appearing therein but in order to have complete clarity on said aspect, defence should have rather insisted for examination of concerned official of Chemistry Division who had accepted the exhibits. Such official could have been easily called in defence to bring home the point that exhibits were not found properly sealed.
10.10 I also cannot be oblivious of the fact that PW1 Ms. Bhargava has categorically claimed in her report as well as in her deposition that exhibits were received in the laboratory in sealed condition only. She also claimed that seals were intact and were tallied with the specimen seal impression. Therefore, no unwarranted emphasis can be given to said check-list particularly in light of the convincing and credible testimony of PW1 Ms. Deepti Bhargava.
(C) Report of Voice Expert 10.11 Before touching the report of voice expert, I would like to reiterate that investigating agency had used one DVR.
10.12 Out of curiosity, such DVR( produced during the trial as well) was also called by the Court at the time of hearing final arguments and it was noticed that DVR was having inbuilt capacity of 4 GB. CBI had, however, thought of using separate memory cards. Memory card Q-1 was used for the CNR NO. DLCT01-004598-2015 Page 28 of 38 purposes of recording of verification call and memory card Q-2 was used for recording spot conversation. These cards were also separately sealed on respective dates i.e. 15.07.2015 & 16.07.2015. It will be also important to mention right here that since memory cards were sealed immediately, investigating agency was left with no copy thereof and, therefore, after recording of specimen voice, a request was made to CFSL for preparation of copies of said exhibits. In this regard, reference be made to the testimony of PW12 S. Ingarsal who was posted as SSO-I in CFSL and whose task was, inter alia, to prepare copies of different kinds of exhibits except for hard disc. He received letter dated 29.07.2015 from SP/CBI along with sealed envelopes marked Q1, Q2 & S1 with specimen seal impression on a separate sheet. He was assigned the task by his HOD of preparation of four copies each of the aforesaid exhibits and he, accordingly, prepared said number of copies. His deposition also clearly indicates that he had found the seals of on all such exhibits intact and such seal matched with the specimen seal impression as well. In his cross-examination, he claimed that he had not given any certificate under Section 65B of Indian Evidence Act supplementing further that he was not the author. He also deposed that data was not password protective. He, however, denied the suggestion that the data was manipulated.
10.13 After having four copies of each such exhibits, investigating agency carried out further investigation and was in a position to prepare the transcript and also sent the original exhibits to CFSL where these were eventually examined by PW13 Sh. Amitosh Kumar, Sr. Scientific Officer.
10.14 I have seen the testimony of PW13 Sh. Amitosh Kumar. He has deposed that he had examined and given opinion in around 375 cases which included 260 cases of speaker identification and that he had given assistance in examination in 600 other cases. As per his report Ex. PW13/A and as per his deposition, he had received sealed parcels, specimen seal impression and copy of transcription on 09.09.2015. He found the seals intact and tallied the same with the specimen seal impression. Parcels were opened by him CNR NO. DLCT01-004598-2015 Page 29 of 38 for examination on 05.02.106. Parcel Q1 & Q2 contained questioned recorded conversation and parcel S-1 contained specimen voice. All such conversations Q1, Q2 & S1 were found in separate micro SD cards.
10.15 Exhibits Q1 & Q2 were found in micro SD cards of make SanDisk of 4 GB each. Q-1 was containing seven audio files and as already noticed above with respect to the questioned conversation, file no. 1507015_004 and file no. 1567015_007 are important which have been described by the expert as Q1(4) and Q1(7) respectively. Similarly, qua Q2, two related audio files were described as Q2(3) & Q2(4). He also examined micro SD card of SanDisk of 4 GB marked as S1. Such SD card was containing three files and the specimen voice of accused was contained in file no. 150716_003 which expert marked as S1(3).
10.16 Since expert was also having transcription with him as well as specimen voice sample of accused, he selected some words for comparison from the relevant audio files.
10.17 After carrying out voice spectrographic analysis and noticing various acoustic features, Sh. Amitosh Kumar came to the opinion that questioned voice contained in Q1(4)(A), Q1(7)(A), Q2(3)(A) & Q2(4)(A) were probable voice of Sh. Ramesh Chand. He also deposed and specified in his report that recording contained in Q1 & Q2 was continuous and there was no form of any tampering detected therein. He had been provided with DVR also and he claimed in his report that such DVR could have been used for recording Q1, Q2 & S1. Evidently, his testimony could not be impeached by the defence in any manner whatsoever.
10.18 As regards preparation of transcription of such recorded conversation, memo has been proved as Ex. PW9/B (D-10). Since complainant was reportedly unable to move during that period, transcription was initially prepared with the assistance of both the independent witnesses and the contents of such transcription were further confirmed from the CNR NO. DLCT01-004598-2015 Page 30 of 38 complainant. Transcription is, more or less, as per the conversation recorded in the related exhibits i.e. Q1, Q2 & S1.
10.19 As regards Q2, as already noticed above, though the conversation was recorded but it was not audible and comprehensible except for few words here and there which were not enough for conveying any sense or indication regarding demand or acceptance. However, it would not be suggestive of the fact that nothing had transpired at all. Oral evidence of complainant duly supported by others cannot be ignored.
RELIABILITY OF DEPOSITION OF COMPLAINANT AND SHADOW 11.0 Section 154 of the Evidence Act nowhere specifically provides for declaring a witness as hostile. It merely says that the court, in its discretion, may permit a person who calls a witness to put any question to him which might be put in cross-examination. This section allows a party, with the permission of the court to cross-examine his own witness in the same way as the adverse party. Such cross-examination means that such witness can be asked, firstly, leading questions under Section 143; secondly, questions relating to his previous statement in writing under Section 145; and, thirdly, questions which tend to test his veracity, to discover who he is and what his position in life is or to shake his credit under Section 146. In the case of Sat Pal v Delhi Administration AIR 1976 SC 294, Hon'ble Apex Court defined a Hostile Witness as "one who is not desirous of telling the truth at the instance of the party calling him and an unfavourable witness is one called by a party to prove a particular fact, who fails to prove such a fact or proves an opposite fact". When any such witness is cross examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law be treated as washed off the record altogether. It is for the court to consider in each case whether as a result of cross examination and contradiction, the witness stands thoroughly discredited or can still be believed or not. If the court notices that in the process, credit of the witness has not been shaken, it may, after reading and considering the evidence of CNR NO. DLCT01-004598-2015 Page 31 of 38 the witness as a whole, give due regard to that part of his testimony which it finds to be creditworthy and worth-acting upon. Thus, the evidence needs to be evaluated as a whole.
11.1 In Abdul Rahim alias Indori Vs. State of NCT of Delhi (2012 SCC OnLine Del 2601), our own High court has observed that that there was no doctrinaire or stereotypical approach which could be applied by the courts whenever a witness for the prosecution turns hostile. Each case and the deposition of each witness is required to be considered in the light of its peculiar circumstances while having regard to the rule of reason, prudence and credibility. Thus in a criminal trial, when a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto.
11.2 Here, undoubtedly, the situation is bit unusual.
11.3 Two material witnesses i.e. complainant and shadow, during the initial examination-in-chief, came up with the answers which made the then learned Prosecutor uneasy. He had a rush of blood and immediately sought permission to cross-examine such witness. Thereafter, the entire remaining questioning by the prosecution is whilst such witnesses were under cross- examination. On careful perusal of their such deposition, I am pretty CNR NO. DLCT01-004598-2015 Page 32 of 38 convinced that had they been allowed by learned Prosecutor to further continue with their respective examination-in-chief, they would not have disappointed the state at all. Learned Prosecutor, it seems, got carried away albeit unnecessarily and declared them unsupportive. He should have demonstrated patience and should have waited for a little longer instead of seeking permission at the very threshold. A mere one or two unsupportive answer should not have unnerved him and forced him to go to such an extreme. He could have easily sought permission in the last, if at all that was required. I can only hope that such things would be kept in mind by the prosecution in future lest it causes irreparable damage.
11.4 Fortunately, the evidence of both the aforesaid witnesses appears to have a ring of truth and most of the answers given by them are in narrative form and not on the basis of any prompting as such and, therefore, there is no real damage. The procedural irregularity does not go to the root of the matter and cannot be labeled as the one compromising the principle of fair trial.
Other Aspects of Investigation 12.0 All the crucial aspects of investigation have been duly proved. The concerned Nodal Officers have been examined to prove the CDRs. Concerned experts have also proved their respective reports. Testimony of complainant, shadow witness, recovery witness, TLO and Ms. Vir Jyoti has already been discussed above.
12.1 PW15 Insp. Manoj Kumar Jaisawal was entrusted with final investigation and he has deposed about sending the exhibits to chemical expert of CFSL/CBI for examination. He has also deposed about sending the memory cards to CFSL for obtaining copies so that the transcription could be prepared. He has also deposed that for the purpose of preparing of transcription, complainant did not turn up as he had sustained injury in his leg CNR NO. DLCT01-004598-2015 Page 33 of 38 and, therefore, he along with Satbir visited the house of complain where the conversation was played and complainant identified his voice as well as voice of accused. He has also clarified that accused and complainant were using the mobile device having two SIMs each. Nothing could be elicited from him which may indicate that either the investigation was biased or defective.
12.1 Sanction for prosecution had been accorded by PW11 Sh. S.K. Tiwari. He was posted as DCP, 3rd Battalion of Delhi Police at the relevant time. As per him, accused-SI Ramesh Chand was posted under his command and control and that being DCP, he was competent to remove Sub Inspector from service. He deposed that at the time of grant of sanction, he had perused and scrutinized the documents and statements of witnesses and satisfied himself and then accorded sanction Ex. PW11/A. Though he did not recollect whether the compact disc of recorded conversation was also produced before him but he did admit that he had gone through the transcription of the conversation. There is nothing in his deposition which may reflect that sanction was either given by an incompetent authority or that sanction was given mechanically.
PRECEDENTS CITED AT BAR AND CONCLUSION 13.0 Sh. Rajiv Mohan, learned defence counsel has relied upon following judgments:-
(i) Mukhtiar Singh (since deceased) through His LR Vs. State of Punjab (2017) 8 SCC136
(ii) P. Satyanarayana Murthi Vs. The Dist. Inspector of Police & Ors.
(2015) 10 SCC 152
(iii) Dinesh Chand Gupta Vs. State Criminal Appeal No. 639/2011
(DOD: 21.05.2016)
(iv) Thomaso Bruno Vs. State of UP 2015 7 SCC 178
(v) Varkey Joseph Vs. State of Kerala AIR 1993 SC 1892
(vi) Satish Kumar Vs. State Criminal Appeal No. 38/1992 (DOD:
09.08.1995)
13.1 It has been contended that prosecution has not been able to
prove the demand and therefore, mere recovery would not mean anything.
Sh. Mohan has argued that Q1 nowhere indicates any demand and Q2 is not CNR NO. DLCT01-004598-2015 Page 34 of 38 audible and, therefore, the factum of alleged recovery would neither be sufficient nor would attract presumption given under section 20 of PC Act.
13.2 Section 7 and Section 13 (1) (d) of Prevention of Corruption Act are somewhat overlapping but according to learned prosecutor, there is a fine distinction. As far as Section 7 of Prevention of Corruption Act is concerned, even if there is no demand, recovery itself would indicate the demand by invoking presumption contained under Section 20 of Prevention of Corruption Act. He has argued that whenever gratification is accepted by a public servant having control of some official function whereby he can pass on favour to some other person and if such other person passes on any money to such public servant then it has to be necessarily inferred that he had received the money on account of gratification and for showing some favour. Sh. Rao has also relied upon Vinod Kumar Vs. State of Punjab (2015) 3 SCC 220. In said case, the complainant had turned hostile in cross- examination but keeping in mind the recovery of bribe money, the presumption was invoked by Apex Court and public servant was held guilty. Defence has, on the other hand, relied upon Dinesh Chand Gupta (Supra) and has argued that as per Mukhtiyar Singh (Supra) and P. Satyanarayana Murthi (Supra), demand is required to be proved even for establishing an offence under Section 7 of Prevention of Corruption Act. I need not go into said aspect as in the present case demand stands established.
13.3 Defence has relied upon Tomaso Bruno (supra) wherein it has been held that it was for the prosecution to have produced the best evidence and omission to produce the same raises serious doubt about the prosecution case. Sh. Mohan has contended that as per said judgment, electronic evidence has been held as primary evidence and since in the case in hand, the primary evidence i.e. recorded conversation does not reflect any demand, the oral evidence cannot be given any importance. I, however, feel that said judgment does not convey any such thing. In that case of murder based on circumstantial evidence, CCTV footage was not produced which was held fatal and, in that context, the importance had been given to CNR NO. DLCT01-004598-2015 Page 35 of 38 electronic evidence. Here, such evidence has been produced and moreover, conversation contained in Q1 has enough of potential to indicate demand.
13.4 Defence cannot dig out any advantage from Satish Kumar (Supra). In that case, it has been observed that the prosecutor, in cross- examination, ought to have put question to the witness so as to elicit facts and not with the statement made to the police. Here, after seeking permission from the Court, prosecutor had cross-examined the complainant and shadow witness and had elicited the facts only.
13.5 In Varkey Joseph (Supra), the Hon'ble Supreme Court has observed that Court shall permit leading questions as to the matter which were introductory and undisputed and which, its opinion, had already been sufficiently proved. It was also observed that the question, which suggests answer, could not be allowed unless the witness was declared hostile. It has also been observed in said judgment that it is the duty of the prosecutor to ask the witness to state the facts or to give his own account of the matter making him to speak as to what he had seen and prosecutor should not be permitted to frame questions in such a manner that witness, by answering mere "yes' or "no" would give the evidence which the prosecutor wishes to elicit. Here, no such situation exists. Moreover, prosecutor had sought permission to cross-examine the said two witnesses as they were resiling from their previous statements and the suggestive questions were put only after seeking permission of the court and after getting them declared as hostile.
13.6 No criminal trial would ever be fool proof. When an eyewitness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. One hardly comes across a witness whose evidence does not contain a grain of untruth or exaggeration, embroideries or embellishment. An attempt has to be made to separate the grain from the chaff, truth from falsehood. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. As CNR NO. DLCT01-004598-2015 Page 36 of 38 per State of U.P. v. M.K. Anthony (1985) 1 SCC 505, while appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. Such aspect was highlighted in Krishna Mochi v. State of Bihar (2002) 6 SCC 81.Here, there is no material contradiction.
13.7 Although the benefit of every reasonable doubt should be given to the accused, the court should not, at the same time, reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures. In State of Punjab v. Jagir Singh (1974) 3 SCC 277 it has been held that a criminal trial is not a fairy tale where one is free to give flight to one's imagination and fantasy. It was observed that crime was an event in real life and product of interplay of different human emotions and, therefore, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses.
13.8 My foregoing discussion would go on to show that accused had raised a demand of bribe. Accused was dealing with the matter in which Sh. Rajbir Singh was accused. Though son of Sh. Rajbir Singh had been given relief and he could not have been arrested without notice in advance, fact remains that they both had received notice under Section 41(A) Cr.P.C. and in case they had not adhered to the directions contained in said notices, they could have been arrested. There is nothing to indicate that the conversation about '15' or '20'was in context of 'settlement of the case between the parties' and was not towards the bribe. Such defence version has not been substantiated in any manner. Moreover, there was no reason for the accused to have denied entry to shadow witness inside his room if his intentions were CNR NO. DLCT01-004598-2015 Page 37 of 38 bonafide. Demand stands exposed from the entire 'tone and tenor' of verification call as well. Undoubtedly, in the recorded conversation in respect of verification call, accused himself did not initiate any demand and it was rather the complainant who was virtually pricking him, time and again, as to what amount should be brought by him. Nonetheless, the astute responses of accused suggest that he had no reservation in accepting the bribe. Relying on Mukhtiar Singh (Supra), Sh. Rajiv Mohan has contended that in that case the element of demand was not held as made out when the accused had inquired whether the money had been brought or not. However, in that case, the prosecution version of demand and acceptance seemed unusual and there were contradictions also which rendered the story doubtful. In a criminal trial, precedent based on bunch of facts and circumstances cannot be applied blindly and mechanically as even a slight change in fact can make the precedent inapplicable. Moreover, the concerned SHO was called immediately and I am not ready to believe that CBI officials could have planted the money in PS. If at all, accused had been falsely implicated and nothing had been recovered from his possession, he would have certainly confided in his SHO. Nothing of that sort seems to have happened here and moreover no question in this regard has been put to PW2 Insp. Jai Prakash.
13.9 The acceptance and recovery of the bribe amount from accused nails him down. It really does not matter as to why currency notes were not sealed at the spot. Fact remains that when the hand-washes and pants wash were taken at the spot itself, solution turned pink which indicated that accused had accepted the money with his hands and had thereafter kept the money in the back pocket of his wearing pants.
13.10 As an upshot of my foregoing discussion, I hold accused Ramesh Chand Dewan guilty for commission of offences under Sections 7 & 13 (1) (d) r/w Section 13 (2) of Prevention of Corruption Act 1988 and convict him thereunder.
Announced in the open Court (MANOJ JAIN)
On this 29th day of January 2018 Special Judge (PC Act) (CBI)-04
Central Distt: Tis Hazari CourtS: Delhi
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