Delhi District Court
Cbi vs . Mahavir Prasad S/O. Sh. Bhoop Singh, on 28 August, 2015
1
IN THE COURT OF SH. SANJEEV AGGARWAL SPECIAL JUDGE
CBI03 (PC ACT) DELHI
CC No.09/15 RC : 21(A)/11
PS : CBI/ACB/ND
U/s : 7 and Sec. 13 (2) r/w.
Sec.13(1) (d) of the P.C. Act and Section
201 IPC
CBI Vs. Mahavir Prasad S/o. Sh. Bhoop Singh,
R/o. B 20, IInd floor, Inderpuri, Delhi Village & PO Nangal
Khodia Behrod, Rajasthan
Date of Institution : 04.07.2012
Judgment Reserved : 17.08.2015
Judgment Delivered : 28.08.2015
JUDGMENT
1. In brief prosecution story is that one Surender Malik S/o Prem Singh Malik made a written complaint to CBI alleging that he was doing the business of manufacturing and trading of carpets. At PS Patel Nagar, one FIR No. 115/2010 U/s 420/406 IPC was registered against him and others wherein he was granted anticipatory bail from Sessions Court, Tis Hazari, Delhi.
2. It was further alleged that on 06.10.2011, he was called by Mahavir Prasad, the IO of the said case to furnish bail bonds RC NO. 21(A)/11 CBI vs. Mahavir Prasad 1 of 97 2 and when the complainant went to meet him, he asked the complainant to pay a bribe of Rs. 40,000/ for not harrassing him in the said case. He also threatened the complainant that if he did not pay the bribe, then he will make a strong case against him and will not let the bail of his brother Shashi Malik being allowed. Since the complainant did not want to pay the bribe, he lodged the complaint with SP, CBI, ACB, Delhi.
3. The compliant so received was marked to Sh. Pramod Kumar, Insp., CBI, ACB, for verification and putting up the report. In order to verify the said complaint Insp. Pramod Kumar arranged an independent witness Sh. Harish Kumar, Dy. Manager, SBI, Parliament street. through proper channel. Complainant and Sh. Harish Kumar were mutually introduced to each other and the purpose of assembly was explained. The complaint which was written in Hindi was read over and explained to the independent witness and thereafter in order to verify the complaint a digital voice recorder was arranged. The introductory voice of the independent witness was recorded in the beginning after ensuring that the DVR was blank. Thereafter Insp. Pramod Kumar alongwith the complainant and independent witness left for PS Patel Nagar in the car of the RC NO. 21(A)/11 CBI vs. Mahavir Prasad 2 of 97 3 complainant and reached there around 1350 hours. Thereafter complainant told them that accused Mahavir Prasad would not talk to him in the presence of any stranger. Therefore it was decided that the complainant will go alone inside PS Patel Nagar closely followed by the independent witnesses. The DVR was also given to the complainant in 'switched on' position and he entered in the PS Patel Nagar, whereas Insp.Pramod Kumar and the independent witness waited outside and they saw the complainant entering inside the PS Patel Nagar.
4. After about 40 minutes, the complainant was seen coming out of the PS alongwith one person. Later on, he was identified as Mahavir Prasad. Then the recorder was taken back from him and switched off and complainant told that the accused Mahavir Prasad, Insp., had demanded and agreed to accept the bribe amount of Rs. 40,000/ and directed the complainant to bring the same within one hour. Thereafter, Sh. Pramod Kumar alongwith the complainant and witness left for CBI office. The recording was heard which confirmed the version of the complainant.
5. After returning to the CBI office, a verification memo dated RC NO. 21(A)/11 CBI vs. Mahavir Prasad 3 of 97 4 08.10.2011 was prepared in which the verification proceedings were duly recorded. Thereafter one blank CD was arranged. After breaking its seal, it was ensured that same does not contain any prerecorded conversation, the conversation recorded in the DVR was transferred to said CD with the help of official Laptop in the presence of independent witness. The Audio CD was marked as Q1, which was signed by the independent witness as well as complainant. The audio CD was seized in a cloth wrapper, the impression seal was also taken on the memo, one investigation copy was also prepared before sealing the said CD.
6. Since the verification revealed commission of a cognizable offence U/s 7 of Prevention of Corruption Act 1988(hereinafer referred to as PC Act) on the part of accused Mahavir Prasad, hence Insp.Pramod Kumar recommended for registration of the case against Mahavir Prasad U/s 7 of PC Act. The verification proceedings concluded at about 1310 hours on 08.10.2011.
7. Thereafter an FIR No. 21(A)/2011/CBI, ACB dated 08.10.2011 was recorded and Sh. Vivek Prakash, Insp. CBI was entrusted with the investigation and laying of trap(hereinafter referred to RC NO. 21(A)/11 CBI vs. Mahavir Prasad 4 of 97 5 as TLO). Thereafter a trap team consisting of Insp. Vivek Prakash as TLO, Sh. Pramod Kumar, PI, Nikhil Malhotra, PI, Sandeep Gautam SI, SH. Surender Malik and two independent witnesses namely Harish Kumar and Sh. Rishi Raj Sharma, Assistant Manager, SBI assembled in CBI office and they were introduced to each other. The purpose of assembly was explained to them, the handwritten complaint in Hindi was shown to everyone present. The verification memo dated 08.10.2011 was read over and explained to everyone present.
8. Thereafter both the independent witnesses were introduced to the complainant. They also questioned the complainant with respect to certain aspects. Thereafter the complainant produced a sum of Rs. 39,500/ in the form of 20 GC notes of Rs. 1000/ and 39 GC notes of Rs. 500/ denomination. The complainant could only arrange this much of the bribe amount of Rs. 39500/ as against the demanded bribe amount of Rs. 40,000/ by the accused. The numbers of GC notes were noted down in the handing over memo. Thereafter a trap kit was arranged from CBI Malkhana. SI Sandeep Gautam gave a practical demonstration of chemical reaction of Phenolphthalein powder with the solution of Sodium RC NO. 21(A)/11 CBI vs. Mahavir Prasad 5 of 97 6 Carbonate with water by applying the powder on GC notes produced by the complainant. The witness Rishi Raj was directed to touch the powder treated GC notes with his index finger and thereafter to dip that finger in the freshly prepared colourless solution of sodium carbonate with water. By doing so the colourless solution turned pink, thereafter the said pink colour was thereafter disbursed. A personal search of the complainant was taken in order to ensure that he was not carrying anything incriminating except his mobile phone. The powder treated GC notes i.e bribe amount of Rs. 39,500/ was kept in the right side pant pocket of the complainant by the independent witness Sh. Rishi Raj Sharma. The remaining phenolphthalein powder was returned to Malkhana. Sh. Harish Kumar(independent witness) was directed to act as a shadow witness. The complainant and shadow witnesses were directed that upon the completion of the transaction of bribe money between complainant and accused, to give a miss call to the mobile phone no. 9650394880 of Insp. Vivek Prakash, TLO or on the mobile number 9650394880 of SI Sandeep Gautam, or to give some signal by rubbing his face with both hands if any trap team member was visible. The complainant RC NO. 21(A)/11 CBI vs. Mahavir Prasad 6 of 97 7 was also directed to give the bribe money to the accused only on specific demand or to any other person as directed by the accused person. All the trap party members including the complainant washed hands with soap and water and all of them searched each other in order to ensure that nobody was carrying anything incriminating.
9. One Digital Voice Recorder (DVR) and company sealed blank compact disk were also arranged in order to record the likely conversation which could take place between the complainant and the accused Insp. Mahavir Prasad. Its functioning was also explained to all those persons who were present there after ensuring its emptiness. Thereafter introductory voice(s) of both the independent witnesses was taken in the beginning of the DVR. A trap kit was also arranged consisting of stationary items, a sum of Rs. 1000/ for incidental expenses, FIR and complainant's complaint, sufficient number empty bottles, sodium carbonate powder and neat and clean glass tumbler and sealing material. The proceedings were recorded in a handing over memo. All the concerned persons signed the memo. After completion of handing over memo, CBI team alongwith complainant and the independent witnesses left for RC NO. 21(A)/11 CBI vs. Mahavir Prasad 7 of 97 8 the spot i.e PS Patel Nagar.
10.Thereafter CBI team reached near PS Patel Nagar, where it was told by the complainant that accused Mahavir Prasad does not talk in front of strangers, it was decided that the complainant be allowed to go alone at the PS with the shadow witness Sh. Harish Kumar, who will accompany till the entering into the PS. The complainant was directed to handover the demanded bribe money to Insp. Mahavir Prasad on his specific demand or to any other person, as directed by him. The DVR was handed over in switch on position to the complainant and prior to this he was directed to give a miss call on mobile phone of Sandeep Gautam or on the mobile phone of TLO, Insp. Vivek Prakash after completion of transaction of bribe amount.
11.Thereafter complainant entered into the PS Patel Nagar alone, whereas the members of the trap team took suitable position outside the PS. The complainant entered into the PS at around 1625 hours. Further at about 1631 hours a call was received from the mobile phone of the complainant at the mobile phone of SI Sandeep Gautam, who in turn passed the said information to Insp. Vivek Prakash. Since it was a pre decided RC NO. 21(A)/11 CBI vs. Mahavir Prasad 8 of 97 9 signal, the TLO Sh. Vivek Prakash alongwith the independent witness and other team members rushed towards the PS Patel Nagar. In the meanwhile, the complainant was seen coming outside the PS towards CBI team and told that the suspect officer had taken the bribe money and gone towards the staircase situated right side of the Duty Officer room of the PS and told them to rush up. The DVR was taken back from the complainant and switched off. Thereafter Sh. Vivek Prakash, TLO alongwith other team members rushed towards the staircase and started searching for Insp. Mahavir Prasad, but they could not locate him, it appeared that he escaped from the PS.
12.The complainant was questioned, he stated that he met accused in his office inside the PS Patel Nagar, thereafter accused came out of his office and accepted the bribe amount of Rs. 39,500/ near the right side of staircase inside the premises of PS and put the same in his right side pant pocket and thereafter left the spot by climbing the stairs.
13.Since accused was not traceable, the matter was reported to Sh. Ravi Gambhir,ASP CBI who was on his way home, he told that he will be reaching the PS within a short duration. After RC NO. 21(A)/11 CBI vs. Mahavir Prasad 9 of 97 10 reaching PS Patel Nagar, ASP Sh. Ravi Gambhir informed the whole matter to Bhola Ram Mann, ACP and Sh. Pawan Singh Rana SHO PS Patel Nagar who were the Supervisory Officers of the accused Mahavir Prasad, to which they informed that they were busy in Bundobast duty and were unable to reach the PS at that time. Both of them were requested to ensure the presence of Mahavir Prasad at PS Patel Nagar, ASP Ravi Gambhir also tried to contact the accused Mahavir Prasad at his official mobile number 8750870494, he was also asked about his whereabouts to which he stated that it was a wrong number.
14.Home address of the accused was taken from the PS, search warrant U/s 165 Cr.PC were issued in the name of Sh. Anand Swaroop. The said notice was served upon Smt. Meena, W/o of accused Mahavir Prasad directing the accused to appear in CBI office on 09.10.2011 at 10 A.M in CBI office.
15.In the meanwhile, HC Sh. Raj Kapoor, present at PS Patel Nagar disclosed that a G.D entry had been made by the accused Mahavir Prasad at 1632 hours before his escape from the PS Patel Nagar mentioning therein that "the accused proceeded for area patrolling". A true copy of this GD entry No. RC NO. 21(A)/11 CBI vs. Mahavir Prasad 10 of 97 11 61B dated 08.10.2011 was also taken into possession. It was also revealed that accused Mahavir Prasad was very much present in the PS at the time of bribe transaction and he had escaped from the PS by making the entry in GD register to create a false record. In these circumstances, it was decided to record the Post Trap proceedings/formalities in CBI office. In the meanwhile, documents pertaining to the case of complainant being investigated by accused Mahavir Prasad were taken into possession, on production cum seizure memo from HC Sh. Raj Kapoor. A notice was served in the name of the accused Mahavir Prasad to the staff ACP/sub division Patel Nagar with the request to direct accused Mahavir Prasad to be present at CBI office on 09.10.2011at 9 A.M.
16.It is further stated that the said notice was served to the accused Mahavir Prasad on 08.10.11 and further in order to avoid his arrest accused Mahavir Prasad stated on the said notice "received and requested since myself is feeling unwell and after getting well I will appear before yourself". Thereafter CBI team left for CBI office. The CBI team alongwith the complainant and the independent witnesses reached at the CBI office and recorded the proceedings of post trap memo in RC NO. 21(A)/11 CBI vs. Mahavir Prasad 11 of 97 12 the official computer of the CBI. The recorded conversation of the complainant and the accused were heard which revealed the demand and acceptance of bribe by the accused. Thereafter the said conversation was transferred into a separate CD after opening its seal and the same was marked as Q2. The same was signed by both the independent witnesses.
17.Thereafter efforts were made to trace accused Mahavir Prasad, but he did not turn up on 12.10.2011,and the NBWs were issued against him from the concerned court.
18.On the basis of source information, accused Mahavir Prasad was arrested on 14.10.2011 from his house at Inder Puri and police remand was sought in order to recover the bribe money from the accused Mahavir Prasad, but could not be recovered. On 15.10.2011 specimen voice of accused Mahavir Prasad was taken, which he gave voluntarily, same was recorded vide a specimen voice recording memo and accused was arrested and sent to judicial custody.
19.During investigations, the call details of mobile No. 8750870495 belonging to the accused Mahavir Prasad which was his official mobile phone were obtained. The analysis of RC NO. 21(A)/11 CBI vs. Mahavir Prasad 12 of 97 13 CDR revealed that Insp. Mahavir Prasad had gone to Dwarka area and subsequently to Sarojini Nagar, where he switched off his mobile phone. As such it is proved that the defence of Ilaka Gast taken by him on the day of trap was false and he had created false record in this regard. During investigations voice specimen of accused alongwith the questioned voices Q1 and Q2 was sent to CFSL for forensic opinion. CFSL had given positive opinion with regard to the questioned and specimen voice of accused Mahavir Singh.
20.After completion of investigation(s), a charge sheet U/s 7 & 13(2) r/w 13(1)(d) of PC Act 1988 r/w Section 201 was filed against the accused.
21.After supplying of documents and other formalities, arguments on charge were heard vide detailed order dated 10.06.13. A charge U/s 7 & 13(1)(d) r/w 13(2) r/w of PC Act 1988 r/w Section 201 was ordered to be framed against the accused. The accused pleaded not guilty and claimed trial.
22.Thereafter prosecution in support of its case has examined 15 witnesses.
23.PW1 is Mahesh Chander who is a formal witness who was present at the time of arrest of accused on 14.10.2011. He has RC NO. 21(A)/11 CBI vs. Mahavir Prasad 13 of 97 14 proved arrest cum personal search memo of the accused(D9).
24.PW2 is SI Sunil Kumar also a formal witness. He has deposed that he was posted in PS Patel Nagar in October 2011. He was shown one notice dated 08.10.2011(D8) addressed to ACP, Sub Division, PS Patel Nagar with regard to issuance of directions for appearance of the accused Mahavir Prasad before Insp. Vivek Prakash CBI in connection with the present case. He stated that the said letter was handed over to him by SI Ramesh Kumar of PS Patel Nagar, which he served upon Mahavir Prasad on the same day at about 10:0010:30 P.M at PS Patel Nagar, as accused himself came there after contacting him on his mobile phone. The said letter is Ex PW2/A.
25.PW3 is Sh. D.K.Tanwar, Sr. Scientific Officer, CFSL CBI, New Delhi who is the voice expert who had given his opinion with regard to questioned voice samples Q1 and Q2 which was sent to him for investigation alongwith specimen voice of the accused marked ExS1(A). He has proved his report Ex PW3/A(running into 6 pages) in which he has opined that voice marked Q1 and Q2 are the probable voices of the RC NO. 21(A)/11 CBI vs. Mahavir Prasad 14 of 97 15 accused.
26.PW4 is Sh. Pawan Singh, Nodal Officer from Idea Cellular Ltd.
He has proved the customer application form(D15) of Mahitap Singh ACP applied by Delhi Police for bulk connections and also photocopy of the bill pertaining to landline bearing number 23288582 in the name and address DCP, office of ACP(PG Cell), Office Complex DCP Central Darya Ganj and photocopy of the Icard of Mahitap Singh and also details of mobile numbers, SIM numbers and user list issued to Delhi Police. He has proved CDR voice of mobile phone number 8750870494 which was the official phone being used by accused, same are marked PW4/A and PW4/D1.
27.PW5 is Ct. Kavita who was working as DD entry writer at PS Patel Nagar on 08.10.2011 whose official duty hours were from 09:00 A.M to 05:00 P.M. He has proved DD No. 61B dated 08.10.2011 which he recorded at the dictation of accused Mahavir Prasad. The said DD entry dated 08.10.2011 is ExPW5/A.
28.PW6 is Sh. Taj Hassan, Special CP Traffic, who was posted at the relevant time in the year 2011, as a joint commissioner central range, he was the incharge of law and order and crime RC NO. 21(A)/11 CBI vs. Mahavir Prasad 15 of 97 16 concerning three districts namely New Delhi, Central and North, where accused was posted at the relevant time. He has proved sanction order dated 03.07.2011 according the sanction to to prosecute the accused U/s 19 of PC Act which is ExPW6/A. The same is ExPW6/A.
29.PW7 is Sh. Rishi Raj Sharma(independent witness no. 2), who was working as Astt. Manager SBI Parliament Street. He also went alongwith the CBI team at the time of actual trap on 08.10.2011 which took place at around 04:31 hours, when the complainant went inside the PS Patel Nagar with the complainant. He has deposed regarding the fact that complainant went to PS in search of accused, but accused was not found there. He also participated in the post trap proceedings. He has proved voice identification cum transcription memo which is ExPW7/D and other relevant memos.
30.PW8 is Sh. Pawan Singh Rana, Inspector Legal Cell, Central District. He was posted as SHO at the relevant time of raid on 08.10.2011. He has stated that on 08.10.2011 while he was busy in Banobast duty at Hauz Khazi Chowk, he received a call in the evening by a person who introduced him as ASP, RC NO. 21(A)/11 CBI vs. Mahavir Prasad 16 of 97 17 CBI who informed him that CBI had raided to catch Inspector Mahavir Prasad, but he fled away. He received a notice Ex PW2/A from ACP, Patel Nagar office to get it served upon Insp. Mahavir Prasad and he directed one of his staff member to get it served. He submitted a report of service of notice in the office of ACP, Patel Nagar on 09.10.2011. The said report is ExPW8/A.
31.PW9 is HC Raj Kapoor who was working as duty officer at PS Patel Nagar, his duty hours were from 05:00 P.M to 01:00 A.M on 08.10.2011. He has deposed that during his duty hours at around 06:30 P.M to 7:00 P.M, some CBI officials came to the PS and they were looking for Insp. Mahavir Prasad. Vide production cum seizure memo certain documents were handed over to them which is ExPW7/F. He identified the documents which he had handed over to Insp. Mahavir Prasad, the same are collectively marked as ExPW9/A. However, He stated that DD No. 82B dated 08.10.2011 was not prepared in his presence. However, same bears the signatures of then SHO Pawan Singh Rana. He has deposed that mobile no. 8750870494 was the official number of accused Mahavir Prasad.
RC NO. 21(A)/11
CBI vs. Mahavir Prasad 17 of 97
18
32.PW10 is the complainant Sh. Surender Malik and star witness of the prosecution. He has proved his complaint ExPW10/A and copy of the FIR which was registered on the basis of his complaint which is ExPW10/B. He has deposed regarding the time, place and manner of incident.
33.PW11 is Insp. Pramod Kumar, Verification officer, who was the first person who was directed by ASP Sh. Ravi Gambhir on 08.10.2011 to verify the complainant of PW10 Surender Malik to whom the original complaint ExPW10/A was handed over who carried out the verification proceedings in presence of independent witness Harish Kumar and also went to PS Patel Nagar alongwith the complainant Surender Malik, thereafter accused went inside the PS and also recorded the conversation which took place between him and the accused in the DVR which was later on transferred into the CD. The verification memo is ExPW10/C and the said CD is exhibited as ExQ1 which he sealed later on in the presence of independent witnesses. He was also present at the time of actual trap proceedings and the post trap proceedings. He has deposed regarding the entire proceedings done by him and regarding the time, place and manner of the trap and fleeing of RC NO. 21(A)/11 CBI vs. Mahavir Prasad 18 of 97 19 the accused from the spot.
34.PW12 is Sh. Harish Kumar, independent witness SBI who was working as Deputy Manager, SBI Parliament Street. He was called by the verification officer PW11 Insp.Pramod Kumar CBI to the CBI office for verification of the complaint of the complainant who had witnessed the verfiication memo alongwith certain documents, he also went with the CBI team for actual trap. He was present through out the trap proceedings and post trap proceedings. He has deposed regarding the pre trap, trap and post trap proceedings.
35.PW13 is Insp. Anand Sarup, ACB, CBI. He has deposed that on 08.10.2011 he issued notice U/s 160 Cr.PC on the instruction of Insp. Vivek Prakash, TLO to accused Mahavir Prasad to appear before him on 09.10.2011. The copy of the said notice U/s 160 Cr.P.C is ExPW13/A.
36.PW14 is Sh. Vivek Prakash, TLO who has deposed regarding constitution of trap team, preparation of pre trap proceedings/memo and thereafter trap team going to the PS Patel Nagar and thereafter complainant alone going inside the PS for handing over the bribe money demanded by the accused and recording of the same and thereafter coming out RC NO. 21(A)/11 CBI vs. Mahavir Prasad 19 of 97 20 of complainant out of the PS Patel Nagar informing other team members regarding handing over the bribe money, searching the accused Mahavir Prasad, seizure and handing over documents from the PS, other proceedings including service of relevant notice(s) through senior officer of the accused, thereafter seizure of relevant documents, post trap proceedings and other relevant documents.
37.PW15 is Insp. Pankaj Vats IO of this case who took investigations from TLO. He recorded the statement of witnesses U/s 161 Cr.P.C, sent the voice samples to CFSL for forensic analysis, collected the relevant daily diaries from SHO PS Patel Nagar. He also prepared transcription of the conversation between accused and the complainant which is ExPW7/E and he also issued notice to the mobile service provider who produced relevant documents regarding call details records. After completion of investigation(s) he filed the charge sheet in the present case.
38.After completion of prosecution evidence statement of the accused U/s 313 Cr.PC was recorded in which the entire incriminating evidence against the accused was put to him. The defence of the accused is that the complainant PW10 RC NO. 21(A)/11 CBI vs. Mahavir Prasad 20 of 97 21 Surender Malik bore grudge against him, he had gone to the CBI office in connivance with them for implicating him in a false case, he never demanded money from him, the complaint and FIR were false, nor he accepted any money from anyone, he was innocent, the independent witnesses have not supported the case of the prosecution. He has also stated that it is a false case foisted upon him by the complainant and his associates in connivance with CBI.
39.In defence he has examined 14 witnesses.
40.DW1 is Sh. Rajeev Ranjan, Nodal Officer, Tata Tele Services Ltd. He has proved the copy of the application form of mobile no. 9212512094 which was issued to Satender Kumar, r/o P105, Village Pullanji, Sarojini Nagar, Delhi, the copy of the said customer application form is ExDW1/A and the CDR of the said mobile phone number for the period 20.09.2011 to 30.10.2011 are collectively exhibited as ExDW1/B and certificate U/s 65B pertaining to the said CDR is ExDW1/C.
41.DW2 is Sh. Israr Babu, Alternative Nodal Officer, Vodafone Mobile Services Ltd., he has proved customer application form of mobile phone number 9999910068 issued in the name of Bachan Kumar Pathak and the same is ExDW2/A. He has RC NO. 21(A)/11 CBI vs. Mahavir Prasad 21 of 97 22 also proved CDR of the said mobile number for the period 20.09.2011 to 15.10.2011 which are ExDW2/B and the certificate U/s 65B has been exhibited as ExDW2/C. He has also proved cell ID chart which is ExDW2/D.
42.DW3 is Pawan Singh, Nodal Officer, Idea Cellular Ltd., he ahs proved customer application form of mobile number 9540411001 issued to Bisan W/o SH. Satender r/o Village Pullanji, Sarojini Nagar, New Delhi, the said customer application form is exhibited as ExDW3/A. The CDR of the said mobile number for the period 01.10.2011 to 15.10.2011 is ExDW3/B and certificate U/s 65B of Indian Evidence Act is ExDW3/C.
43.DW4 is Ram Hari Singh, Sub Divisional Engineer and alternate Nodal Officer. He has proved call detail record of mobile number 9968081941 for the period 20.09.2011 to 15.10.2011 which is ExDW4/A. The address of the customer was that of SP, CBI, SU, New Delhi. He has also proved call details record of mobile number 9868858395 for the period 20.09.2011 to 15.10.2011 which are ExDW4/B. The name of the customer is Ved Prakash r/o RZ18, Najafgarh, he has also proved call details record of mobile phone no.9868255478 RC NO. 21(A)/11 CBI vs. Mahavir Prasad 22 of 97 23 for the period 20.09.2011 to 15.10.2011(running into 19 pages) which is ExDW4/C, same is also in the name of Harish Kumar. The certificate U/s 65B in support of above said CDR has been proved as ExDW4/D. He has also filed Base Trans & Receive Station(BTS) site chart(running into 16 pages) which is ExDW4/E. He after looking after into the CDR of mobile no. 9868255478 and the BTS Site Chart that the location of the said mobile phone on 08.10.2011 at 03:19 P.M and 3:22 P.M was at Old Rajinder Nagar area.
44.DW5 is Chander Shekhar, Nodal Officer, Bharti Airtel Ltd., he has proved the attested copy of customer application form of mobile nos. 9650394844, 9650394881,9650394880 issued to SP, CBI, ACB, Lodhi Road, New Delhi. The said customer application form is ExDW5/A, he has also proved two Cell ID charts(running into 8 and 6 pages, which is ExDW5/B1 and ExDW5/B2. He has also proved call details record of mobile no. 9650394844 for the period 20.09.2011 to 15.10.2011. The said CDR is ExDW5/C and the certificate U/s 65 B of Indian Evidence Act is ExDW5/D.
45.After looking into the CDR and Cell ID chart he stated that the location of the mobile no. 9650394844 on 07.10.2011 at RC NO. 21(A)/11 CBI vs. Mahavir Prasad 23 of 97 24 17.41.25 P.M was near West Patel Nagar, New Delhi and on 08.10.2011 the location of the above mobile phone number at 14.57.53 hours and 15.00.34 hours was at the Shankar Road, New Rajender Nagar, New Delhi and the location of the said mobile phone at 15.01.08 hour was at Shankar Road, New Rajender Nagar, New Delhi and similarly on 08.10.2011 the said location of the said mobile number at 15.19.49 hours ad 15.42.38 hours was at the tower located at New Rajender Nagar, New Delhi. He has also proved call details record of mobile no. 9650394880 for the period 20.09.2011 to 15.10.2011 which is ExDW5/E and the CDR and Cell ID Chart location of the said mobile phone during the day. He has also similarly proved during the day on 08.10.2011. He has also proved CDR of mobile no. 9650394881 for the period 20.09.2011 to 15.10.2011 which is ExDW5/F. He also stated regarding Cell ID Chart location of mobile no. 9650394881 on 08.10.2011.
46.He has also proved call detail record of mobile no.
8826273887 for the period 20.09.2011 to 15.10.2011 which is also in the name of Rishi Raj Sharma, the said CDR is ExDW5/G, the customer application form is ExDW5/H and RC NO. 21(A)/11 CBI vs. Mahavir Prasad 24 of 97 25 after looking into the CDR and Cell ID Chart the location of mobile no. 8826273667 on 08.10.2011 at 12.49.26 hours and 12.49.32 hours and it is stated that the same was at Malviya Nagar and the location of the said mobile number on 08.10.2011 at 14.17.13 hours, 17.03.46 hours, 17.26.50 hours, 18.47.25 hours 22.03.20 hours, 22.04.23 hours and 22,58.47 hours was at tower located at Malviya Nagar, New Delhi.
47.He has also proved certificate U/s 65B of Indian Evidence Act in support of CDRs and Cell ID charts which is ExDW5/J.
48.DW6 is Sh. Vijay Kumar, Asstt., Central Vigilance Commission, INA, New Delhi. He has proved the Order No. 73/12/2005 dated 15.12.2005, copy of which is ExDW6/A.
49.DW7 is HC Manoj Malik from PS Sarojinji Nagar, New Delhi.
He has proved summoned record i.e original FIR register containing FIR No. 514/09, U/s 420 IPC dated 31.12.2009 registered at PS Sarojini Nagar which is ExDW7/A. He also stated that the investigation of said case was marked to SI Mahavir Prasad(accused), which was later on compromised by the accused persons and was quashed by the Hon'ble High Court, copy of the order of Hon'ble High Court dated 23.09.2010 is ExDW7/B. RC NO. 21(A)/11 CBI vs. Mahavir Prasad 25 of 97 26
50.DW8 is HC Shiv Kumar PS Pahar Ganj. He has proved DD register at PS Pahar Ganj containing entries from 27.09.2011 till 28.03.2015. He has stated that as per said DD register accused Mahavir Prasad was on duty at Jandewalan Temple during Navratras arrangement from 29.09.2011 to 05.10.2011. He further stated that on 03.10.2011 accused joined the duty at 11:30 A.M vide DD entry at serial no. 7, was relieved from the duty at 08.05 P.M vide DD entry at S.No.13. The relevant copies of DD entries at S.No. 3 and 7 are ExDW8/A.
51.DW9 is Ct. Satish who was posted with the accused at Jhandewalan Mandir on 03.10.2011 during Navratras arrangement. He has proved the seizure memo ExPW10/DA. The said memo was prepared at Jhandewalan where one Surender Malik came and deposited FDRs and the same were taken into possession by accused vide ExPW10/DA and he was witness to the same and none of them visited PS Patel Nagar in duty hours during the said period.
52.DW10 is ASI Joginder Singh from Confidential Branch. He has proved Gazette Notification of Delhi Police vide which accused was promoted to the post of Inspector. The name of the accused is appearing at S.No. 20 of the said Gazette RC NO. 21(A)/11 CBI vs. Mahavir Prasad 26 of 97 27 Notification No. 3970/CBI/PHQ dated 27.01.2010, copy of the notification is ExDW10/A.
53.DW11 is SI Rajnikant, CCP Spl. Branch, Asaf Ali Road, who has claimed that he was present through out in the PS on 7/8102011 at the time when the accused left PS Patel Nagar after making DD entry at around 04:30 P.M.
54.DW12 is HC Raj Pal Singh. He has proved the summoned record i.e DD register No. A of PS Patel Nagar from 22.09.2011 to 17.10.2011. He has stated that on 06.10.2011, he was posted as Record Clerk at PS Patel Nagar. Accused Mahavir Prasad was their Insp. Investigation. At around 11:00 P.M accused came in the record room alongwith two persons, one was the accused namely Surender Malik and the name of other person he does not know. The accused demanded bail bond form, dossier form, conviction slip form and one CRO form. Thereafter, Insp. Mhavir Prasad filled up all the forms in the record room in his presence and also interrogated Surender Malik in between and he also directed Surender Malik to reach the concerned court on 07.10.2011 for giving specimen handwriting and signatures. Surender Malik also gave an undertaking to Inps. Mahavir Prasad in writing and RC NO. 21(A)/11 CBI vs. Mahavir Prasad 27 of 97 28 Surender Malik complied with the same and thereafter Ct. Shree Pal was called and accused Surender Malik was sent alongwith Ct. Shree Pal to PS Kamla Market for preparation of dossier and thereafter accused Mahavir Prasad made an entry in DD register no. A at S.No. 24 in his own handwriting in respect of proceedings done by him. Copy of the said entry is ExDW12/A.
55.He further stated that on 08.10.2011 accused Mahavir Prasad handed over to him chargesheet of FIR NO. 115/10 with the instruction to issue RC urgently, as the same had to be filed in the court by Monday i.e on 10.10.2011. He issued road certificate and relevant road certificate bearing RC No. 150/21/11 dated 08.10.2011 is ExDW12/B.
56.DW13 is Ct. Satender from Central District Prosecution Branch, Tis Hazari. He had brought the summoned record i.e Challan Movement Register pertaining to the year 2011 from the office of Chief Public Prosecutor, Central District and as per record the charge sheet in respect of FIR No. 115/10 U/s 406/420 IPC PS Patel Nagar was investigated by Insp. Mahavir, same was brought to the prosecution branch on 26.09.2011 and the same was checked by the prosecution RC NO. 21(A)/11 CBI vs. Mahavir Prasad 28 of 97 29 branch and was sent back on 29.09.2011 with certain objections and thereafter Insp. Mahavir brought the challan / charge sheet again after compliance of the prosecution branch in respect of the objections and same was submitted in the office of Chief Public Prosecutor on 07.10.2011 and the same was approved by the office of Chief Public Prosecutor on the same day and same was handed over to the accused for compliance on 07.10.2011. Copy of the entry in this regard is ExDW13/A.
57.DW13 is Jitender Kumar, Jr. Judicial Assistant from Patiala House Courts has been inadvertently marked as DW13, whereas he should have been examined as DW13A. He had brought the summoned record. As per record, Sh. Gorakh Nath Pandey, the then Ld.DJS was not posted at Patiala House Court on 20.03.2014
58.DW14 is T.R.Acharya, JJA, Record Room(Session) Tis Hazari Courts, Delhi. He has stated that the record pertaining to bail applications titled as Shashi Malik Vs. State decided on 19.08.2011 and 12.09.2011 have been destroyed by weeding out cell on 18.06.2015. The relevant Goshwara register is Ex DW14/A. RC NO. 21(A)/11 CBI vs. Mahavir Prasad 29 of 97 30
59.DW14 is SI Vinod Kumar. He has been inadvertently marked as DW14, whereas he should have been examined as DW14A. He is the witness from HAP, Central District, DCP Office Darya Ganj Delhi. He has proved the letter dated 19.06.2012, whereby CBI sought sanction against the accused. Copy of the same is ExDW14/A. He has also deposed that no copy of RC, memos, statement of witnesses U/s 161 Cr.P.C or report of expert of CFSL was sent to the office of Joint CP by the office of CBI nor the same was present in the file brought by him and it only contains the report of CBI and draft sanction order.
60. I have heard Sh. V.K.Ojha PP for CBI and Counsel for accused Sh. Sandeep Sharma and perused the record. Counsel for accused has relied upon the following judgments. Counsel for accused has also relied upon the following judgments:
1. 2009(4) Crimes 504(Bom.) titled as Arjun Bajirao Kale Vs. State of Maharashtra
2. AIR 1976 SC 294 titled as Sat Paul Vs. Delhi Administration.
RC NO. 21(A)/11 CBI vs. Mahavir Prasad 30 of 97 31
3. 73(1998) DLT 318 titled as Chander Bhan Vs. State
4. 1974(2) ILR(Del) 400 titleda s Davinder Singh Vs. State of Delhi.
5. AIR 1980 Karnatka 92 titled as Govind Naik VsWest Patent Press Co(FB).
6. AIR 1974 SC 1596 titled as Mattulal Vs. Radhe Lal
7. AIR 1979 SC 1912 titled as Krishna Kumar Vs. The Divisional Assistant Electrical Engineer, Central Railway.
8. AIR 1979 SC 1964 titled as Gujrat Steel Tubes Ltd. Vs. Gujrat Steel Tubes Majdoor Sabha
9. 1994(3) CC Cases 38(HC) titled as Onkar Chand Prashar Vs. State(Delhi) 10.1977AIR SC titled as Rabindra Kumar Dey Vs. State of Orissa 11.1966 Law Suit(SC) 74 titled as V D Jhingan Vs. State of UP.
12.2014(10) LRC 96(Del) titled as Ankur Chawla & Ors Vs. CBI & Ors
13.Anwar P.V vs. P.K.Basheer & Ors decided by Hon'ble Supreme Court of India on 18, September 2014 RC NO. 21(A)/11 CBI vs. Mahavir Prasad 31 of 97 32
14.Judgment delivered by Hon'ble High Court dated 10.08.2011 titled as K.C.Singh Vs. CBI 15.1971 AIR 1050 titled as Matru @ Girish Chandra Vs. State of UP.
16.(2000) 10 SCC 43 titled as Ram Krishan Prajapati Vs. State of UP 17.2008 CRI LJ 1784 titled as Chironjilal Vs. State of Madhya Pradesh 18.2009(4) Crimes 504(Bom) titled as Arjun Bajirao Kale Vs. State of Maharashtra
61. On the other Ld. PP for the CBI has relied upon the following judgments:
(i) 2005 CRI. LJ 2145 SC titled as C.CKrishnamurthy Vs. State of Karnataka
(ii)1971 CRI LJ 1314 SC titled as Thimma Vs. State of Mysore
(iii)Crl.Appeal No. 177/2001 DHC titled as Balbir Singh Yadav Vs. CBI dated 25.01.2011\
(iv)2001CRI LJ 515 SC titled as M. Narsinga Rao Vs. State of M.P
(v)State of Bihar Vs. Rajmangal Ram Criminal appeal No. 709 of 2014 reported as CRLJ S.C 2300 dated 23.03.2014 RC NO. 21(A)/11 CBI vs. Mahavir Prasad 32 of 97 33
(vi)C.M.Sharma Vs. State of Andhra Pradesh(2013) 2 SCC(Cri) 89
(vii)State of Karnatka Vs. Ameer Jan 2007 SCW 6217
62. Ld. Public Prosecutor has argued that from the testimony of prosecution witnesses including that of verification officer PW11 Insp. Pramod Kumar that of TLO, PW14 Insp. Vivek Prakash coupled with the testimony of independent witnesses, PW7 Rishiraj Sharma, PW12 Harish Kumar and that of complainant PW10 Surender Malik. The prosecution has been able to prove that there was initial demand of bribe by the accused on 06.10.2011, when the complainant visited PS Patel Nagar with regard to the investigation of FIR No.115/10 which was being investigated by the accused, at that time accused demanded Rs. 40,000/ from the complainant PW10 for facilitating the anticipatory bail of his younger brother who was also accused in the said FIR, for that purpose accused demanded a sum of Rs. 40,000/ and assured him that he will not arrest his younger brother till the date fixed before the court.
63. He has further argued that thereafter on 08.10.2011 the RC NO. 21(A)/11 CBI vs. Mahavir Prasad 33 of 97 34 complainant did not wanted to pay the bribe went to the office of CBI where he gave complaint to the SP of the CBI who in turn marked the same to PW10 Insp. Pramod Kumar for verification, who in turn called another independent witness PW12 Harish Kumar, whereafter the introductory voice of Harish Kumar was recorded in the DVR which was got issued from the malkhana, thereafter all of them went to PS Patel Nagar at around 01:00 P.M on the same day for verification of the complaint given by the complainant PW11. Since the accused was the police officer and the complainant told PW10 and PW12 who were accompanying him that accused will not talk about the demand of bribe in their presence, therefore it was decided that only complainant would go inside the PS, thereafter complainant went inside the PS Patel Nagar and came back after half an hour later with an recording in which the accused clearly demanded Rs. 40,000/ for not initiating any action against the brother of the accused and for diluting the case against the accused. Thereafter the said recording was heard by everyone which was later on converted into CD in the office of CBI from the official laptop of PW11 Insp. Pramod Kumar and the said CD was seized.
RC NO. 21(A)/11
CBI vs. Mahavir Prasad 34 of 97
35
64. Thereafter the verification memo was prepared and the report was put up before the ASP who ordered for registration of FIR, which was registered U/s 7 of PC Act. After registration of FIR trap team was constituted of which PW14 Insp. Vivek Prakash was appointed as TLO. The same was done in consultation with the SSP Sh. Ganesh Verma who constituted the team of TLO PW14 Sh. Pramod Kumar, PW11 Insp. Nikhil Malhotra, SI Sanjeep Gautam and other subordinate staff as well as independent witness Harish Kumar who was present at the time of verification of complaint and one more witness PW7 Rishi Raj, thereafter handing over memo was prepared in which the pre trap proceedings were held in the office of CBI in which the currency notes of Rs. 39,500/ were arranged by the complainant which was written in the pre trap memo i.e handing over memo.
65. Thereafter the demonstration regarding the chemical properties of phenolphthalein powder was given by the TLO and independent witness Harish Kumar was directed to dip his finger in the said solution and after demonstration the remaining phenolphthalein powder was returned, thereafter Harish Kumar independent witness was directed to keep the RC NO. 21(A)/11 CBI vs. Mahavir Prasad 35 of 97 36 said amount of Rs. 39,500/ in the right side pant pocket of the complainant and was directed to deliver the bribe money to Insp. Mahavir Prasad on his specific demand and direction. DVR was arranged and it functioning was explained to everyone, the handing over memo/pre trap memo was prepared and signed by all the members of raiding party.
66. Thereafter CBI team alongwith the independent witness and complainant reached PS Patel Nagar, where they took respective positions at around 04:20 P.M, DVR was switched on and voices of independent witness were recorded and same was kept in the pocket of the complainant. Thereafter both the complainant as well as independent witness Harish Kumar went towards the PS Patel Nagar, the witness Harish Kumar remained at the gate of PS Patel Nagar, whereas complainant entered into PS Patel Nagar, it was around 04:25 P.M, after 10 minutes a call was received on the official mobile phone of Sandeep Gautam, thereafter entire CBI team rushed inside, as same was pre decided signal, when they went inside it was found that at around 04:32 P.M the accused had made false DD entry in the PS bearing DD entry No. 61B dated 08.10.2011 that he was going on patrolling duty in the area of RC NO. 21(A)/11 CBI vs. Mahavir Prasad 36 of 97 37 PS Patel Nagar. Accused was searched everywhere, but he could not be found, thereafter the supervisory officers of the accused were informed and notice was also given to ACP asking the said accused to join the investigations, but accused did not join the investigations ultimately was arrested much later on, on 12.10.2011.
67. It has been argued by Ld. PP for the CBI that firstly there was initial demand of bribe by the accused on 06.10.2011, thereafter the demand of bribe was again made by the accused on 08.10.2011 between 01:00 P.M to 02:30 P.M during the verification proceedings and thereafter acceptance of bribe by the accused on 08.10.2011 at about 04:25 P.M has been duly proved from the testimony of PW10 who was the complainant who alone went to the PS. Since the accused did not used to talk in the presence of any stranger the testimony of the complainant in this regard was trustworthy, as despite long cross examination by the defence nothing has come out in his testimony, which could show that he was biased and was not a credible witness. He has also argued that the recording of conversation done by the complainant. PW10 during verification proceedings and acceptance of bribe later RC NO. 21(A)/11 CBI vs. Mahavir Prasad 37 of 97 38 on on the same day had been duly converted into CD and was seized and was marked as Q1 and Q2. Thereafter later on when the accused was arrested his specimen voice was also taken and recorded and same was also sent to CFSL for forensic opinion and PW3 who is forensic voice expert has categorically stated that the voices contained in Q1 and Q2 match with the specimen voice given by the accused. He has further argued that subsequent conduct of the accused i.e running away with the trap money of Rs. 39,500/ and later on evading his arrest for number of days shows that he was guilty, as no plausible explanation has been furnished by the accused, as to why he ran away from the spot when the CBI party was searching for him and even his superiors were searching for him, despite that he did not join the investigations which shows that he had disposed off the bribe money.
68. On the other hand, Ld. Defence counsel has controverted the arguments of Ld. PP for CBI on the ground that the alleged initial demand of bribe by the accused on 06.10.11 has not been proved, as it has been clearly proved by the accused by leading his defence evidence that on 06.10.2011 the accused RC NO. 21(A)/11 CBI vs. Mahavir Prasad 38 of 97 39 had called PW10 complainant to PS Patel Nagar for giving surety bond, as he has been released on anticipatory bail and the complainant in furtherance of the same had produced one surety by the name of Vikrant and his surety bond was taken and in this regard accused had also recorded DD entry at the PS regarding the proceedings done by him on that day and the prosecution for the reasons best known to them has not examined said Vikrant who stood as a surety for accused, he was the best person to corroborate the testimony of the complainant PW10 regarding the alleged initial demand of bribe by the accused on 06.10.2011, rather accused has examined PW12 Ct. Raj Pal who was working as a record clerk at PS Patel Nagar in whose presence the said bail bonds were taken by the accused at PS Patel Nagar. Accused has also proved DD entry No.24 dated 06.10.2011 which is Ex DW12/A in this regard.
69. He has further argued that the alleged demand of bribe by the accused again on 08.10.2011 pursuant to the alleged verification proceedings has also not been proved as barring the complainant nobody had admittedly went inside the PS and he has argued that complainant is not at all a trustworthy RC NO. 21(A)/11 CBI vs. Mahavir Prasad 39 of 97 40 witness, he is having atleast 40 cases pending against him, he was a habitual liar, he had moved an exemption application in the court stating that he was busy in the court of Sh. Gorakh Nath Pandey Ld. Judge at Patiala House Courts, whereas from the testimony of defence witness examined by him on this point it has come that Sh. Gorakh Nath Pandey was not posted as a Judge at the relevant time when the said exemption application was moved taking the said ground. He has argued that complainant was also confronted with Ex DW10/A which is a seizure memo dated 03.10.2011, whereby an FDR of Rs. 10.2 lacs was deposited by the complainant which was seized by the accused as per court orders of anticipatory bail. At that time the accused was on duty at Jhandewalan Temple, accused had also produced relevant DD entry of his duty vide ExDW8/A and one Ct. Satish was who the witness to the seizure memo has also been examined as DW9.
70. He has further argued that PW10 was asked to produce the details of his accountant Sudhir Sharma, when he met the accused on 06.10.2011 at about 12:00 Noon and he was also directed to appear before concerned MM on 07.10.2011 for RC NO. 21(A)/11 CBI vs. Mahavir Prasad 40 of 97 41 giving his specimen handwriting, but PW10 concealed this fact in his examination in chief, even in cross examination he tried to conceal this fact when he was confronted with the copy of his handwritten undertaking, in which he had undertaken to produce the said accountant Sudhir Sharma, he admitted the same was correct which is ExPW10/DB. Therefore he has argued that complainant is not at all reliable witness. He was in the habit of fabrication of evidence and giving false statement in the court also. No reliance can be placed on such a witness. He has further argued that even prior to that when the accused was posted as SI at PS Sarojini Nagar an FIR was registered against PW10 and his cohorts bearing FIR No. 514/09 PS Sarojini Nagar which has been proved by him as ExPW7/A of which the accused was the investigating officer and the said complaint was ultimately compromised with the complainant vide order of Hon'ble High Court ExDW7/B, both these documents prove complainant PW10 was having a grudge against the accused, which worked as a motive on the part of the accused to falsely implicate the accused in this case which he did in connivance with the CBI officials.
71. He further argued that the alleged recording of conversation RC NO. 21(A)/11 CBI vs. Mahavir Prasad 41 of 97 42 between the accused and PW10 is not at all admissible, as no certificate has been appended by the prosecution U/s 65B of the Indian Evidence Act and in view of the judgment Anwar P.V. SUPRA. The said recording is not admissible in evidence, as prosecution has failed to proved the original DVR in which the original recording was done and from where it was allegedly converted into CD from the official laptop of PW11 Insp. Pramod Kumar.
72. He has further argued that acceptance of bribe by the accused on 08.10.2011 at 04:25 P.M has also not been proved as accused never met the complainant at around 04:20 P.M and accused had left the PS Patel Nagar after making a DD entry that he was going for patrolling duty in the area of PS Patel Nagar and admittedly nobody had accompanied the complainant into PS Patel Nagar and the alleged recording done by the complainant of the alleged conversation between the accused and the complainant regarding acceptance of bribe has not been proved, same is also barred by the judgment of Hon'ble Supreme Court Anwar P.V. SUPRA, as no certificate U/s 65B has been furnished, he has argued in RC NO. 21(A)/11 CBI vs. Mahavir Prasad 42 of 97 43 any case PW10 is not at all credible witness. Therefore the only evidence which remains against the accused is the testimony of PW10 which cannot be relied upon, who is a history sheeter and was in the habit of giving false statements in the court, who had motive and bias to falsely implicate the accused in this case due to previous enmity. He has also argued that from the testimony of the prosecution witness itself namely PW5 Ct. Kavita who was the DD writer posted on 08.10.2011 at PS Patel Nagar from 09:00 A.M to 05:00 P.M, which has come in her cross examination that no raid was conducted by the CBI officials till 05:10 P.M, nor any CBI officer came inside the PS Patel Nagar.
73. He has also argued that same is the deposition of another witness of the prosecution HC Raj Kapoor PW9, who has stated in his examination in chief itself that CBI officials came to him in between 06:30 P.M to 07:00 P.M, as they were looking for looking for Inspector Mahavir Prasad i.e accused which shows that the entire story of raid at around 04:30 P.M on 08.10.2011 has been concocted by the CBI officials, he has also argued that two more witnesses namely friend of the complainant Satender Kumar and another witness i.e Bacchan RC NO. 21(A)/11 CBI vs. Mahavir Prasad 43 of 97 44 Singh, driver of the accused have not been examined by the prosecution for the reasons best known to them. Their examination could have revealed the truth of the prosecution story.
74. He has further argued that the verification proceedings as per verification memo ExPW10/C started on 08.10.2011 at 1300 hours and concluded on the same day at 1510 hours and thereafter pre handing over memo and handing over memo started at 1520 hours and it was completed at 1550 hours. He has argued that it is next to impossible that the verification memo was put up before SSP concerned who recommended the registration of FIR, the FIR was registered, typed within 10 minutes, thereafter one more independent witness was arranged, thereafter DVR was got issued from the malkhana including phenolphthalein powder and sodium bicarbonate solution and thereafter the entire team assembled and number of currency notes were written in the pre trap handing over memo, demonstration of trap was given to the complainant in the presence of independent witness, all this was completed by 1550 hours and thereafter the entire team immediately left for PS Patel Nagar.
RC NO. 21(A)/11
CBI vs. Mahavir Prasad 44 of 97
45
75. He has further argued that from the testimony of DWs examined by him he has been able to show that the mobile phone of PW12 Harish Kumar independent witness and that of PW11 Inps. Pramod Kumar showed their location in the area of New Rajender Nagar at around 1510 hours, therefore it is not clear how they could be present in the office of CBI at around 1510 hours, which shows that the entire case of the prosecution was palpably false.
76. He has further argued that the sanction given by the sanction authority i.e Joint Commissioner of Police ExPW6/A is not a proper sanction, as firstly the said joint commissioner of police was not the competent officer to accord sanction in the case of accused, whose appointing authority was Commissioner of Police, as he had proved relevant notification in this regard, as he had been appointed by the Commissioner of Police and further it has been admitted by PW6 in his cross examination that neither copy of the FIR, nor CFSL report, nor statement of the witnesses, nor relevant documents including recording were sent to him for consideration, therefore he has argued that the said sanction is not sanction in the eyes of law and as for obtaining a valid sanction the entire material had to be sent RC NO. 21(A)/11 CBI vs. Mahavir Prasad 45 of 97 46 to the sanctioning authority, without which sanction is not a valid sanction.
77. I have gone through the rival contentions. The law in regard to the fact in issue has been laid down by Hon'ble Supreme Court in case titled as State of Punjab V. Sohan Singh reported as AIR 2009 SC 1887 , as under :
10. The High Court in support of its Judgment interalia opined :
i) The prosecution is required to establish the demand of bribe by the accused; acceptance whereof as also the amount in question from his possession and having regard to the fact that there exists serious discrepancies in the statements of the witnesses in regard to the events immediately prior to the payment of the amount of bribe, the prosecution cannot be said to have proved its case.
ii) No reason has been assigned by the prosecution as to why the independent witness Inderjit Singh, who was a government employee, had been given up by the prosecution.
Iii) The circumstantial evidence in
regard to the alleged commission of the
offence by the respondent was not
sufficient to establish the case of bribery in RC NO. 21(A)/11 CBI vs. Mahavir Prasad 46 of 97 47 the light of the ingredients thereof.
78. It has been held by Hon'ble Supreme Court in, case titled as Banarsi Dass Vs. State of Haryana , reported as AIR 2010 Supreme Court 1589, as under :
11. To constitute an offence under Section 161 of the IPC, it is necessary for the prosecution to prove that there was demand of money and the same was voluntarily accepted by the accused.
Similarly, in terms of Section 5 (1) (d) of the Act, the demand and acceptance of the money for doing a favour in discharge of its official duties is sine qua non to the conviction of the accused. In the case of M.K.Harshan Vs. State of Kerala (1996 (11) SCC 720) ; (AIR 1995 SC 2178 ; 1995 AIR SCW 3385 ), this Court in somewhat similar circumstances, where the tainted money was kept in the drawer of the accused who denied the same and said that it was put in the drawer without his knowledge, held as under :
" .............. It is in this context the courts have cautioned that as a rule of prudence, some corroboration is necessary. In all such type of cases of bribery, two aspects are important. Firstly, there must be a demand and secondly there must be RC NO. 21(A)/11 CBI vs. Mahavir Prasad 47 of 97 48 acceptance in the sense that the accused has obtained the illegal gratification. Mere demand by itself is not sufficient to establish the offence. Therefore, the other aspect, namely acceptance is very important and when the accused has come forward with a plea that the currency notes were put in the drawer without his knowledge, then there must be clinching evidence to show that it was with the tacit approval of the accused that the money had been put in the drawer as an illegal gratification. Unfortunately, on this aspect in the present case we have no other evidence except that of PW1. Since PW1's evidence suffers from infirmities, we sought to find some corroboration but in vain. There is no other witness or any other circumstance which supports the evidence of PW1 that this tainted money as a bribe was put in the drawer, as directed by the accused. Unless we are satisfied on this aspect, it is difficult to hold that the accused tacitly accepted the illegal gratification or obtained the same within the meaning of Section 5 (1) (d) of the Act, particularly when the version of the accused appears to be probable".
12. Reliance on behalf of appellant was placed upon the judgment of this Court RC NO. 21(A)/11 CBI vs. Mahavir Prasad 48 of 97 49 in the case of C.M.Girish Babu (AIR 2009 SC 2022 ; 2009 AIR SCW 1693 )(Supra), where in the facts of the case the Court took the view that mere recovery of money from the accused by itself is not enough in absence of substantive evidence for demand and acceptance. The Court held that there was no voluntary acceptance of the money knowing it to be a bribe and giving advantage to the accused of the evidence on record, the Court in paras 18 and 20 of the judgment held as under : "18. In Suraj Mal Vs. State (Delhi Admn.) (1979 (4) SCC 725); (AIR 1979 SC 1408), this Court took the view that (at SCC p. 727, para2) mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe.
20. A threeJudge Bench in M.Narsinga Rao Vs. State of A.P. (2001 (1) SCC 691 ; SCC (Crl.) 258); (AIR 2001 SC 318 ; 2000 AIR SCW 4427), while dealing RC NO. 21(A)/11 CBI vs. Mahavir Prasad 49 of 97 50 with the contention that it is not enough that some currency notes were handed over to the public servant to make it acceptance of gratification and prosecution has a further duty to prove that what was paid amounted to gratification, observed : (SCC p. 700, para24) :
"24. .... we think it is not necessary to deal with the matter in detail because in a recent decision rendered by us the said aspect has been dealt with at length. (Vide Madhukar Bhaskarrao Joshi Vs. State of Maharashtra (2000 (8) SCC 571); (AIR 2001 SC 147 : 2000 AIR SCW 4018). The following statement made by us in the said decision would be the answer to the aforesaid contention raised by the learned counsel : (Madhukar case, SCC p. 577, para12).
'12. The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted "as motive or reward" for doing or forbearing to do any official act. So the word "gratification" need not be stretched to mean reward because reward is the outcome of the presumption which the RC NO. 21(A)/11 CBI vs. Mahavir Prasad 50 of 97 51 court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like "gratification or any valuable thing". If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word "gratification" must be treated in the context to mean any payment for giving satisfaction to the public servant who received it."
13. Infact, the above principle is no way derivative but is a reiteration of the principle enunciated by this Court in Suraj Mal case (AIR 1979 SC 1408) (supra), where the Court had held that mere recovery by itself cannot prove the charge of prosecution against the accused in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money. Reference can also be made to the judgment of this Court in Sita Ram Vs. State of Rajasthan (1975 (2) SCC 227) ; (AIR 1975 SC 1432), where similar view was taken.
14. The case of C.M. Girish Babu (AIR 2009 SC 2022 ; 2009 AIR SCW 1693 ) (supra) was registered under the Prevention of RC NO. 21(A)/11 CBI vs. Mahavir Prasad 51 of 97 52 Corruption Act, 1988, Section 7 of which is in pari materia with Section 5 of the Prevention of Corruption Act, 1947. Section 20 of the 1988 Act raises a rebuttable presumption where the public servant accepts gratification other than legal remuneration, which presumption is absent in the 1947 Act. Despite this, the Court followed the principle that mere recovery of tainted money divorced from the circumstances under which it is paid would not be sufficient to convict the accused despite presumption and, in fact, acquitted the accused in that case.
79. The prosecution has to prove the following main ingredients.
Initial demand, demand of bribe a the time of trap, acceptance of bribe at the time of trap and thereafter recovery of bribe money from the possession of the accused. A. Regarding first part pertaining to initial demand of bribe allegedly by the accused on 06.10.2011
80. PW10 Surender Malik has deposed that FIR No. 115/10 was registered against him at PS Patel Nagar and he was called by Insp. Mahavir Prasad on 06.10.2011 for furnishing bail bond in the court in the above FIR. On that day accused Mahavir Prasad told he should do something as he does not RC NO. 21(A)/11 CBI vs. Mahavir Prasad 52 of 97 53 meet him regarding his case to which he replied that he and his brother has been falsely implicated in the said FIR and the complainant has also written in his complaint that prior to the registration of above FIR he did not knew them. Accused also asked about the money which they could give for facilitating the anticipatory bail of his brother. Accused demanded a sum of Rs. 40,000/ for the said purpose and assured them that he will not arrest his younger brother till the date fixed before the court. In this regard, there is no corroborative piece of evidence relied upon by the prosecution to prove that the said initial demand was indeed made on 06.10.2011 by the accused for Rs. 40,000/ from PW10 i.e the complainant. The testimony in this regard is of only PW10. PW15 who was the investigating officer who filed the charge sheet has stated in his cross examination that he did not examine Sh. Vikrant who stood as a surety of the complainant who had been granted conditional bail with regard to the allegations of initial demand as alleged by the complainant.
81. To prove this initial demand on 06.10.2011, the said Vikrant was the most vital witness on behalf of prosecution who could have proved that the said demand was indeed RC NO. 21(A)/11 CBI vs. Mahavir Prasad 53 of 97 54 made by the accused at the time of producing bail bond to him during the investigation of FIR No. 115/10 of which he was the investigating officer. For the reasons best known to the prosecution the said witness was not produced during the trial, rather in defence accused has produced DW12 HC Raj Pal Singh who was working as record clerk at PS Patel Nagar on 06.10.2011.
82. He stated that on that day accused came in the record room alongwith two persons, one was the accused namely Sureder Malik and the name of other person he did not knew. Accused Mahavir Prasad demanded bail bond form, dossier form, conviction slip form and one CRO form from him. Thereafter, he filled up all the forms in the room and interrogated Surender Malik in between. He also directed PW10 Surender Malik to reach concerned court on 07.10.2011 for giving specimen handwriting and signatures. Surender Malik also gave an undertaking to Insp. Mahavir Prasad in writing that he will comply the same. Thereafter Ct. Shree Pal was called and accused Satender Malik was sent alongwith him for preparation of dossier and in this regard Insp. Mahavir RC NO. 21(A)/11 CBI vs. Mahavir Prasad 54 of 97 55 Prasad accused made an entry in the DD register No. A at S.No. 24 in his own handwriting at about 12 P.M in respect of proceedings done by him. Copy of the said DD entry is Ex DW12/A.
83. The said witness in whose presence the entire proceedings of accepting the bail bond as per anticipatory bail granted to PW10 had been done has not spoken a single word about the demand of any bribe by the accused on 06.10.2011, in order to corroborate the version of PW10, it was incumbent upon prosecution to produce the said independent witness Vikrant who stood as a surety for PW10, who also went to PS Patel Nagar alongwith PW10 on 06.10.2011 for furnishing bail bonds. Since DW12 has not stated a single word about the alleged demand of bribe by the accused, further the other witness Vikrant has not been produced. Though the testimony of sole witness if credible is sufficient to prove any fact no corroboration of the testimony of sole witness is required. The corroboration is only looked upon to rule out any testimonial error in the testimony of sole witness which may arise due to bias, objectivity and other issues relating to his credibility at RC NO. 21(A)/11 CBI vs. Mahavir Prasad 55 of 97 56 large.
84. In this case it would be relevant at the outset to evaluate the credibility of this witness on the touch stone of bias objectivity and his standing in the society as such. In his cross examination he has admitted that total 33 cases U/s 138 N.I.Act were pending against him. He also admitted that besides that one criminal case was registered against him at Sonepat Haryana regarding fabrication of some documents regarding bank loan etc., He has also admitted that he was declared Proclaimed Offender in a case No. 441/02 at Sonepat Haryana U/s 138 N.I.Act. He has also admitted that he was knowing one Satender also known as Babar who was General Secretary of Village Pailanji, near PS Sarojini Nagar and he also heard the name of Suresh Kumar Bhatia. He had the knowledge that Suresh Kumar Bhatia had lodged a complaint against Satender and himself at PS Sarojini Nagar, but he has stated that he had no knowledge that the said complaint was initially investigated by the accused. He had no knowledge that the FIR was also got registered by the accused, but admitted as correct that the the said complaint RC NO. 21(A)/11 CBI vs. Mahavir Prasad 56 of 97 57 was compromised with Suresh Kumar Bhatia i.e complainant, he also admitted that a case under the Customs Act was also registered against him at Delhi in which he was arrested.
85. Accused has examined one DW in this regard namely DW7 HC Manoj Malik MHC(R) from PS Sarojini Nagar who has stated that he had brought the relevant record with regard to FIR no. 514/09 U/s 420 IPC dated 31.12.2009 registered at PS Sarojini Nagar, copy of which is ExDW7/A. He stated that the investigation of this case was marked to SI Mahavir Prasad(accused). This case was later on compromised and quashed by Hon'ble High Court. The copy of the proceedings is ExDW7/B. From the perusal of said ExDW7/A, it is apparent that PW10 was also one of the accused in the said FIR which he has also admitted in his cross examination. The said matter was compromised with the complainant, therefore it appears that PW10 had some sort of rancour against the accused in this case, as he was the IO in previous FIR No. 514/09. Since he was the investigating officer in the said case, the credibility of PW10 as a whole on the touch stone of bias, objectivity and his standing in the society at large takes a RC NO. 21(A)/11 CBI vs. Mahavir Prasad 57 of 97 58 heavy dent, as he has admitted that almost 33 cases U/s 138 N.I.Act were pending against him, besides that one case was registered against him at Sonepat Haryana. Regarding fabrication of some documents regarding bank loan etc., he was also declared Proclaimed Offender in the case registered at Sonepat Haryana. He was also arrested under Custom Act in Delhi.
86. Therefore testimony of such a witness who himself is a history sheeter has to be taken with a pinch of salt. The testimony of said witness when compared with the testimony of any other honest witness who has impeccable credentials has to be evaluated differently, as it would not be proper to give same probative force to the testimony of history sheeter, as may be given to a person of impeccable honest credentials. The credibility of this witness takes a further hit as he stated that he had handed over FDR of Rs. 10,20,000/ to the accused at PS Patel Nagar. He denied suggestion that the said FDR was handed over to the accused at Jhandewalan Temple on 03.10.2011, where accused was on duty. He was confronted with the seizure memo in this regard which is Ex RC NO. 21(A)/11 CBI vs. Mahavir Prasad 58 of 97 59 DW10/DA, by virtue of which the said FIR was seized by the accused which is witnessed by Ct. Satish of PS Patel Nagar. The said Ct. Satish has also been examined as a witness by the accused as DW9. He has stated that on 03.10.2011 he was posted at PS Patel Nagar, however he was deputed for the arrangement duty at Jhandewalan temple from 29.09.2011 to 05.10.2011 alongwith accused Mahavir Prasad. He stated that the seizure memo ExPW10/DA was prepared at Jhandewala Temple area where one Surender Malik came and deposited FDRs which was taken into possession and he signed the said memo as a witness and none of them visited PS Patel Nagar in duty hours. Nothing has come out in his cross examination which could show that he was not a trustworthy witness. Accused has also examined DW8 to corroborate the stand that he was posted at Jhandewalan temple on 03.10.2011. In this regard he has proved DD entry at serial No. 7 and 13 of dated 03.10.2011 which he made at PS Paharganj which are ExDW8/A. From the said DD entries, it is apparent that on the said day accused was posted at Jhandewalan in arrangement duty. Therefore this part of testimony of PW10 that he handed over FDR in PS Patel RC NO. 21(A)/11 CBI vs. Mahavir Prasad 59 of 97 60 Nagar appears to be incorrect.
87. Further denting the credibility of PW10, regarding the incident of 06.10.2011 when PW10 went to submit bail bond at PS Patel Nagar as demanded by the accused and thereafter proceeded to PS Kamla Market for preparation of dossier, he was asked certain questions in answer to which he stated that he does not know whether accused had directed him at the time of submitting his bail bond that he has to produce his accountant Sudhir Kumar before him when he was confronted with ExDW10/B(which he admitted as correct), which was the undertaking given by him to the accused in this case in which he had undertaken that he will locate the address of Sudhir Kumar and give it to him tomorrow i.e 07.10.2011.
88. Therefore it appears that accused is also not speaking the truth with regard to incident dated 06.10.2011 regarding giving of undertaking by him on said date. Further PW10 had moved an application before this court during the trial on 20.03.2014 which application was moved through his counsel Sh. Amit Gupta for exemption on the ground that he would not appear in the court on the said date, as he had to appear before the RC NO. 21(A)/11 CBI vs. Mahavir Prasad 60 of 97 61 court of Sh. Gorakh Nath Pandey at Patiala House Courts, Delhi, whereas accused has examined one witness DW13A Jitender Kumar, Jr. Judicial Assistant from Patiala House Courts, who has stated that as per record Sh. Gorakh Nath Pandey was not posted at Patiala House Court on 20.03.2014, he had been relieved on 15.01.2014 from the post of Sr. Civil JudgecumRent Controller, which also shows that Sh. Gorakh Nath Pandey never worked as MM Patila House Courts, rather he was working as Sr. Civil Judgecum Rent Controller and he was not posted thereon on 20.03.2014, yet the accused had moved false application for personal exemption stating that he had to appear before such court.
89. Therefore it appears PW10 has the habit of telling a lie and he has also been booked for fabrication of documents regarding bank loan etc., he has also been arrested in a custom case, was also declared proclaimed offender, was also facing trial in almost 3536 cases, therefore what kind of credibility can be attributed to such a witness, whose shelf is totally filled with criminal cases. He was also biased towards the accused due to the fact that accused had booked him RC NO. 21(A)/11 CBI vs. Mahavir Prasad 61 of 97 62 earlier in the FIR at PS Sarojini Nagar bearing FIR No. 514/09, therefore he had motive to seek revenge from the accused. Therefore probative value of testimony of said witness is highly diminished by these factors.
90. Since the credibility of said witness is having very low probative force on the scale of probabilities, therefore his testimony with regard to initial demand of bribe on 06.10.2011 is neither corroborative by the independent witness Vikrant who stood as a surety, nor by any other witness. In view of the above discussion prosecution version with regard to initial demand is not reliable, same therefore does not stand proved. B. Regarding the alleged demand of bribe by the accused again on 08.10.2011 between 01:50 P.M to 02:20 P.M during the verification proceedings
91. In this regard testimony of PW11 Insp. Pramod Kumar who was verification officer, as also that of independent witness Harish Kumar PW12 and that of complainant PW10 are relevant.
92. PW11 has stated regarding marking of the said complaint to him by ASP Ravi Gambhir on 08.10.2011 at 1300 hour. He RC NO. 21(A)/11 CBI vs. Mahavir Prasad 62 of 97 63 has proved the said complaint ExPW10/A, as he stated that ASP Ravi Gambhir made an endorsement on it and asked him to verify the same. Thereafter he had obtained one DVR from the caretaker and recorded the introductory voice of witness in it and thereafter he alongwith witness Harish Kumar and complainant went to PS Patel Nagar and they reached there at 01:50 P.M, but complainant PW10 stated that accused does not talk in front of any stranger. The complainant was given the DVR by keeping it on recording mode and he stayed back outside the PS. After about 40 minutes he came out from the PS with the recording. The recorder was taken from him, thereafter they heard the conversation on loudspeaker mode, wherein the conversation of complainant was confirmed. The said recording was transferred from DVR into CD with the help of his official laptop. CD was marked Q1 and sealed in the presence of independent witnesses. The said verification memo is ExPW10/DC. Thereafter he alongwith additional SP Sh. Ravi Gambhir reported the outcome of the verification to SSP Sh. Ganesh Verma who ordered registration of FIR U/s 7 of the PC Act.
93. With regard to this ingredient also as discussed above RC NO. 21(A)/11 CBI vs. Mahavir Prasad 63 of 97 64 since complainant PW10 only went alone inside the PS at the time of verification of proceedings at 1350 hours on 08.10.2011 and there was no shadow witness accompanying him during the said alleged conversation and demanding of bribe by the accused. The credibility of PW10 has already been discussed in detail during the discussion with regard to ingredient no. 1, since credibility of such PW10 is highly doubtful in nature, not much countenance can be given to such a witness due to the reasons already discussed above. Regarding the conversation recorded by PW11 Insp. Pramod Kumar, counsel for accused has relied upon the judgment of Hon'ble Supreme Court Anwar P.V. SUPRA. The relevant extract is reproduced as under:
"New communication system and
digital technology have made drastic
changes in the way we live. A revolution is occuring in the way people transact business." In fact, there is a revolution in the way the evidence is produced before the court. Properly guided, it makes the systems function faster and more effective. The guidance relevant to the issue before us is reflected in the statutory provisions extracted above.
RC NO. 21(A)/11
CBI vs. Mahavir Prasad 64 of 97
65
Any documentary evidence by way of
electronic record under the Evidence Act, in view of Section 59 and 65A, can be proved 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, notwithinstanding 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 under Section 65B(2) of the Evidence Act.
(i) The electronic record containing the RC NO. 21(A)/11 CBI vs. Mahavir Prasad 65 of 97 66 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 lawful control over the use of that computer;
(ii) The information of the kind contained in electronic record or 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 reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.
Under Setion 65(B)(4) of the 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;
RC NO. 21(A)/11 CBI vs. Mahavir Prasad 66 of 97 67
(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 under Section 65B(2) of the 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.
It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact disc(CD), Video Compact Disc(VCD), Pen drive, etc., to which a statement is sought to be given in evidence, when the same is produced in defence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to RC NO. 21(A)/11 CBI vs. Mahavir Prasad 67 of 97 68 electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, altercation, transposition, excision, etc., without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.
Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation, resort can be made to Section 45A -opinion of examiner of electronic evidence.
The evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65B of the Evidence Act are not complied with, as the law now stands in India.
It is relevant to note that Section 69 of the Police and Criminal Evidence Act, 1984(PACE) dealing with evidence on computer records in the United Kingdom was repealed by Section 60 of the Youth Justice and Criminal Evidence Act, 1999. Computer evidence hence must follow the common law rule, where a presumption RC NO. 21(A)/11 CBI vs. Mahavir Prasad 68 of 97 69 exists that the computer producing the evidential output was recording properly at the material time. The presumption can be rebutted if evidence to the contrary is adduced. In the United States of America, under Federal rule of Evidence, realibility of records normally go to the weight of evidence and not to admissibility.
Proof of electronic record is a special provision introduced by the IT Act amending various provisions under the Evidence Act. The very caption of Section 65A of the Evidence Act, read with Sections 59 and 65B is sufficient to hold that the special provisions on evidence relating to electronic record shall be governed by the procedure prescribed under Section 65B of the Evidence Act. That is a complete code in itself. Being a special law, the general law under Sections 63 and 65 has to yield.
In State (NCT of Delhi) v Navjot Sandhu alias Afsan Guru[1], a twojudge Bench of this court had an occasion to consider an issue on production of electronic record as evidence. Whie considering the printouts of the computerized records of the calls pertaining to the cellphones, it was held at Paragraph150 as follows:
RC NO. 21(A)/11 CBI vs. Mahavir Prasad 69 of 97 70 "150. According to Section 63, secondary evidence means and includes, among other things, "copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies". Section 65 enables secondary evidence of the contents of a document to be adduced if the original is of such a nature as not be easily movable. It is not in dispute that the information contained in the call records is stored in huge servers which cannot be easily moved and produced in the court. That is what the High Court has also observed at para 276.
Hence, printouts taken from the computers/servers by mechanical process and certified by a responsible official of the serviceproviding company can be lead in evidence though a witness whio can identify the signatures of the certifying officer or otherwise speak of the facts based on his personal knowledge.
Irrespective of the compliance with the requirements of Section 65B, which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely, Sections 63 adn 65. It may be that RC NO. 21(A)/11 CBI vs. Mahavir Prasad 70 of 97 71 the certificate containing the details in sub section (4) of Section 65B is not filed in the instant case, but that does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely, Sections 63 and 65." It may be seen that it was a case where a responsible official had duly certified the document at the time of production itself. The signatures in the certificate were also identified. That is apparently in compliance with the procedure prescribed under Section 65B of the Evidence Act. However, it was held that irrespective of the compliance with the requirements of Section 65B, which is a special provision dealing with admissibility of the electronic record, there is no bar in evidence relating to electronic record, as noted herein before, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary RC NO. 21(A)/11 CBI vs. Mahavir Prasad 71 of 97 72 evidence by way of electronic record; the same is wholly governed by Sections 59 and 65A dealing with the admissibility of electronic record; the same is wholly governed by Sections 65A and 65B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this court in Navjot Sandhu case(supra), does not law down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is admissible.
The appellant admittedly has not produced any certificate in terms of Section 65B in respect of the CDs, Exhibits P4, P8, P9, P10, P12, P13, P15, P20 and P22. Therefore, the same cannot be admitted in evidence. Thus, the whole case set up regarding the corrupt practice using songs, announcements and speeches fall to the ground.
RC NO. 21(A)/11
CBI vs. Mahavir Prasad 72 of 97
73
The situation would have been
different had the appellant adduced
primary evidence, by making available in evidence, the CDs used for announcement and songs. Had those CDs used for objectionable songs or announcements been duly got seized through the police or Election Commission and had the same been used as primary evidence, the High Court could have played the same in the court to see whether the allegations were true. That is not the situation in this case. The speeches, songs and announcements were recorded using other instruments and by feeding them into a computer, CDs were made therefrom which were produced in court, without due certification. Those CDs cannot be admitted in evidence since the mandatory requirements of Section 65B of the Evidence Act are not satisfied. It is clarified that notwithinstanding what we have stated herein in the preceding paragraphs on the secondary evidence on electronic record with reference to Section 59, 65A and 65B of the Evidence Act, if an electronic record as such is used as primary evidence under Section 62 of Evidence Act, the same is admissible in evidence, without compliance of the conditions in Section 65B of the Evidence RC NO. 21(A)/11 CBI vs. Mahavir Prasad 73 of 97 74 Act.
94. PW15 IO of this case Insp. Pankaj Vats in his cross examination was asked whether he knew about the making of DVR allegedly used in this case to which he stated that DVRs are used generally of same make in the CBI, therefore there was no need of checking the make in this case. He was also asked whether accused sought the copy of the mirror image of the hard disc and the properties of the DVR by moving an application U/s 207 Cr.PC alongwith other articles to which he replied that he is unable to ascertain as to which DVR was used in the present case to which he stated that it must be on the record, if that is so.
95. In the present case prosecution has failed to produce the original DVR in which recording containing the alleged conversation between the accused and PW10 on 08.10.2011 between 1350 hours and 1420 hours was recorded. Recording in this case was converted into CD by PW11 Insp. Pramod Kumar through his official laptop from the original DVR, but it is not clear where and which was the original DVR, no number or make of the same has been specified. Since PW11 had taken the original data from the DVR and converted the same RC NO. 21(A)/11 CBI vs. Mahavir Prasad 74 of 97 75 into CD through official laptop it was incumbent upon him to give a certificate U/s 65B so that the secondary evidence in the shape of CD prepared by him of the alleged conversation could be admitted in the evidence. In the present case it was incumbent upon PW11 to ensure that all the ports of the DVR were seized, the said DVR should have also been seized and it should have been ensured by him that no input device could be inserted into the said DVR and no data could be taken out of the same and then thereafter he should have used the block writer which is the instrument which is used to transfer the data from hard disc i.e DVR in this case into some laptop without damaging the hard disc of the DVR so as to know what was the hash value of the data which was stored in the said DVR after hash value of the data would have been stored by PW11, the said DVR should have been seized and hash value should have been written on the same, thereafter the said data from the block writer should have been transferred to some other hard disc, from where it should have been transferred into CD, in which it should have been mentioned that it was having the same hash value as all the original data stored in the DVR and PW11 should have given a certificate to this RC NO. 21(A)/11 CBI vs. Mahavir Prasad 75 of 97 76 effect that hash value of the CD written by him from the DVR used by him, was same as was the data/voice recording in the DVR, as no certificate was given by the IO, therefore the entire electronic evidence relied upon by the prosecution in the shape of voice recording i.e Q1 with regard to verification proceedings between 1350 hours and 1420 hours on 08.10.2011 are not admissible. Therefore prosecution has failed to prove that there was any demand of bribe by the accused on 08.10.2011 between 1350 hours and 1420 hours. (C) Regarding third ingredient i.e acceptance of bribe by the accused on 08.10.2011 at about 04:25 P.M.
96. Regarding this ingredient prosecution has examined many witnesses PW7 Rishi Raj Sharma, PW10 complainant Surender Malik, PW11 Insp. Pramod Kumar verification officer, PW Harish Kumar who was present through out, as he was also present during the verification proceedings as also at the time of trap. PW14 TLO Insp. Vivek Prakash has deposed that 08.10.2011 SSP CBI called him in his office chamber and handed over to him a copy of the FIR, wherein it was alleged that Mahavir Prasad, Insp. PS Patel Nagar was demanding RC NO. 21(A)/11 CBI vs. Mahavir Prasad 76 of 97 77 bribe for Rs. 40,0000/ from the complainant Surender Malik. At that time, the complainant was also available. On receiving the copy of FIR, he in consultation with SSP Ganesh Verma constituted a team comprising of himself, Insp. Pramod Kumar, Insp. Nikhil Malhotra, SI Sandeep Gautam and other subordinate staff, as well as independent witness Harish Kumar and one more independent witness. Thereafter pre trap proceedings were done in the CBI office and during the said proceedings the complainant arranged an amount of Rs. 39,500/ out of Rs. 40,000/, thereafter demonstration was given to all present in which phenolphthalein powder was put on the currency notes, thereafter solution of sodium carbonate in water was prepared and Sh. Harish Kumar was asked to dip his fingers in the said solution, the solution on so doing turned into pink colour.
97. The chemical reaction of phenolphthalein powder with sodium carbonate solution was explained to all, thereafter personal search of the complainant was conducted and it was ensured that he was not carrying any incriminating article with him. Thereafter PW12 Harish Kumar was asked to put the currency notes tainted with phenolphthalein powder in the RC NO. 21(A)/11 CBI vs. Mahavir Prasad 77 of 97 78 right side pant pocket of the complainant with the directions to deliver the said bribe amount to the accused on his specific demand and direction The solution of sodium carbonate was thrown away and all present washed their hands with soap and water. Thereafter a DVR was arranged and its functioning was explained to all present, thereafter complainant was informed that it was for the purpose of recording likely conversation with the accused. A pre trap memo was prepared by PW14 on his official laptop, thereafter all of them signed on the same, thereafter all the CBI team members alongwith the independent witnesses proceeded to PS Patel Nagar and reached there at around 04:20 P.M, the DVR was switched on and specimen voice of the independent witnesses was recorded and the same was put into the left side shirt pocket of the complainant.
98. Thereafter complainant alongwith the independent witness Harish Kumar left complainant at the gate of PS Patel Nagar and after about 10 minutes a phone call was received on the official mobile of SI Sandeep Gautam bearing no. 9650394880 which was pre decided signal, that after handing over bribe money complainant will give the said signal, thereafter RC NO. 21(A)/11 CBI vs. Mahavir Prasad 78 of 97 79 immediately CBI alongwith independent witness rushed towards the gate of PS Patel Nagar and complainant was seen coming out of the PS, he informed accused Mahavir Prasad had accepted the bribe of Rs. 39,500/ from him near staircase of PS Patel Nagar. The DVR was taken back from the complainant and was put on switch off mode, thereafter he alongwith Insp. Pramod Kumar and other independent witness entered into the PS and searched for the accused Mahavir Prasad. Despite their best efforts, they could not trace him. On checking, it was found that he had proceeded somewhere after making DD entry in Roznamcha of PS Patel Nagar and thereafter the matter was explained to ASP and Sh. Ravi Gambhir on phone, he told that he was on the way to his house, but will reach there shortly. After taking house address of the accused Mahavir Prasad, authorization U/s 165 Cr.PC was handed over to the constable to handover the same to SSP Sh. Ganesh Verma, which was forwarded for the purpose of conducting search at the residential premises of the accused and thereafter SH. Ravi Gambhir reached PS Patel Nagar and matter was discussed with him, thereafter he made a call to accused Mahavir Prasad, the phone was picked by RC NO. 21(A)/11 CBI vs. Mahavir Prasad 79 of 97 80 someone, who said "wrong number".
99. PW14 also contacted to the SHO PS Patel Nagar who told him that he was busy in bandobast duty. Thereafter, in consultation with Sh. Ravi Gambhir, it was decided to complete the post trap proceedings at CBI office, as there was lot of disturbance and hue and cry in the PS Patel Nagar. A notice U/s 160 Cr.PC was served at PS Patel Nagar with the directions to deliver the same to the accused Mahavir Prasad. Thereafter CBI team alongwith the complainant and independent witnesses, reached CBI office and completed the post trap proceedings. The conversation so recorded was transferred into a blank CD through his official laptop. The CD was seized and the seal was taken from the independent witness PW12 Harish Kumar. The post trap memo is Ex PW7/B. The said CD was seized as Q2. Since the accused was not traceable PW14 approached the competent court and obtained NBWs against the accused Mahavir Prasad and same was executed on 14.10.2011. He was produced before the court where police remand custody was granted to him. During police custody remand, specimen voice of accused Mahavir Prasad was taken in the DVR which he gave RC NO. 21(A)/11 CBI vs. Mahavir Prasad 80 of 97 81 voluntarily.
100. The other witnesses examined by prosecution in this regard PW10, PW11, PW7 and PW12 Harish Kumar have corroborated the version of PW14. Though prosecution has examined PW3 forensic expert who compared the alleged specimen voice sample of the accused Mahavir Prasad with the recording of alleged conversation which took place on 08.10.2011 in the afternoon and later on at the time of actual trap at around 04:30 P.M, which were marked Q1 and Q2, who had opined that the voice(s) in mark Q1 and Q2 were the probable voices of the same person i.e accused Mahavir Prasad, his specimen voice is mark S1, but since no certificate U/s 65B has been produced by either PW11 Insp. Pramod Kumar or PW14 TLO Insp. Vivek Prakash who had prepared the CD allegedly from the said DVR. The said evidence is not admissible being barred by the judgment of Hon'ble Supreme Court Anwar P.V SUPRA in view of the discussion already made in previous ingredient no. B.
101. Even the identify of the original DVR is not known to the investigating office in which the said alleged recording was RC NO. 21(A)/11 CBI vs. Mahavir Prasad 81 of 97 82 done, neither number, nor properties of the said DVR have been produced on the record. PW11 and PW14 who had prepared copy from the memory of the DVR into their laptop, thereafter taking the output of the same in the shape of CD have not given any certificate U/s 65B of Evidence Act, therefore the said computer output being relied upon by the prosecution in respect of CDs Mark Q1 and Q2 cannot be relied upon by way of secondary evidence/document(s) in the absence of certificate U/s 65B of the Indian Evidence Act. Therefore said corroborative evidence relied upon by the prosecution in support of its case is not at all admissible in evidence. Therefore the next step to discuss the probative force of the said evidence need not be taken.
102. Regarding the testimonial deposition of PW10 that he had handed over the bribe money to the accused near staircase of PS Patel Nagar between 04:25 P.M and 04:35 P.M, same is also not credible as already discussed, as testimonial deposition of PW10 as a whole is touching very low on probative scales, where the credibility of any person can be measured or assessed. The credibility of the said witness is highly doubtful in nature due to reasons of bias, objectivity and RC NO. 21(A)/11 CBI vs. Mahavir Prasad 82 of 97 83 previous enmity with the accused, as he had axe to grind against the accused, due to various reasons, as already discussed. PW10 has been found wanting on the touch stone of credibility, as he has spoken various lies with regard to the investigation done by the accused and the documents handed over by him to the accused. Since no other witness had been produced by the CBI who had witnessed the handing over bribe money to the accused, further the testimony of PW10 being not reliable.
103. Therefore prosecution has failed to prove that the complainant PW10 had handed over Rs. 39,500/ to the accused on his demand between 04:25 P.M and 04:35 P.M on 08.10.2011. Further it has been admitted by PW14 in his cross examination that he had not conducted any personal search of the complainant to ensure whether bribe amount had been delivered to the accused Mahavir Prasad or the complainant was still in possession of the currency notes after the complainant came out of the PS Patel Nagar. This was very important piece of evidence, as prosecution could have established that they had taken said search of the complainant either through TLO or through independent witness to RC NO. 21(A)/11 CBI vs. Mahavir Prasad 83 of 97 84 establish that complainant indeed had handed over the bribe money to the accused, as per his own version, the credibility of PW10 is highly doubtful in nature due to the reasons already discussed above. Therefore it was incumbent upon the prosecution to prove this fact that the bribe money did not remain with the complainant, when he came out of PS Patel Nagar and on taking his search, it was not found in his possession. Therefore it is quite probable that the said bribe money was never been handed over by PW10 to the accused as claimed by him.
104. Further though prosecution witnesses PW11 and PW14 have claimed that the complainant entered into PS Patel Nagar at around 04:25 P.M and after five minutes a call was received on the mobile phone of SI Sandeep Gautam which was a pre decided signal of the complainant. Thereafter all of them rushed inside the PS, where complainant met them and told them that accused had accepted the bribe money near staircase and after accepting the bribe he had gone upstairs, they went inside, but could not locate the accused, as they could not found the accused and they later on found that he had left after making DD entry No. 65B ExPW5/A that he was RC NO. 21(A)/11 CBI vs. Mahavir Prasad 84 of 97 85 on "patrolling duty" in the area of PS Patel Nagar.
105. However, the version of the prosecution witness regarding the time when they entered into PS is contradicted by very own evidence of the prosecution. For example, PW5 Ct. Kavita who was DD writer posted at PS Patel Nagar from 09:00 A.M to 05:00 P.M on that day, who had recorded the DD entry No. 65B at the dictation of accused has stated that her duty hours were from 09:00 A.M to 05:00 P.M and she worked till 05:10 P.M on 08.10.2011. She made the last entry No. 67B and the position of the duty officer's office was exactly at the main entry of the PS Patel Nagar and while going inside or coming out of the PS, one has to pass through the office of duty officer, but she stated that till 05:10 P.M no raid was taken by the CBI officials, nor any CBI officer entered the premises of PS Patel Nagar. Same is the testimony of another prosecution witness PW9 HC Raj Kapoor who was working as duty officer at PS Patel Nagar from 05:00 P.M till 01:00 A.M and he stated that during his duty hours at about 06:30 P.M to 07:00 P.M some CBI officials came to the PS as they were looking for Inps. Mahavir Prasad. This version of the prosecution witnesses that they entered into PS at around RC NO. 21(A)/11 CBI vs. Mahavir Prasad 85 of 97 86 04:25 P.M is contradicted by PW5/PW9. Therefore it is highly doubtful that the CBI team entered into the PS Patel Nagar at around 04:35 P.M. Therefore this version of the prosecution appears to be highly doubtful.
106. Further the version of the prosecution with regard to timing of raid even otherwise appears to be incorrect as verification memo ExPW10/C is stated to have commenced at around 1:00 P.M and the verification proceedings were concluded at 1510 hours on 08.10.2011, thereafter endorsement was made by the concerned SSP for registration of FIR. Sufficient time would have been consumed during registration of FIR, as it is running into 23 pages. The time of registration of FIR ExPW16/B is stated to be at 03:15 P.M. It is hard to imagine that within 5 minutes entire FIR could be typed and handed over to the TLO. After being signed by SSP Sh. Ganesh Verma and the complainant, thereafter proceedings regarding handing over memo and pre trap memo ExPW7/A stated to have commenced at 1530 hours running into 5 pages and stated to have been completed by 1550 hours within 30 minutes, it is hard to imagine that within such a short span of 30 minutes the TLO wrote all the number of RC NO. 21(A)/11 CBI vs. Mahavir Prasad 86 of 97 87 currency notes by typing it on his computer and in short time he also obtained trap kit from CBI Malkhana, had also obtained phenolphthalein powder and also gave demonstration of properties of phenolphthalein powder solution, search of the complainant and other team members were taken, DVR and company seal CD was also arranged, laptop was also arranged alongwith the stationary.
107. It appears that such a lengthy procedure cannot be completed within the period of half an hour. In this regard accused has examined DW4 Ram Hari Singh, Sub Divisional Engineer & Alternate Nodal Officer, MTNL Mobile Services. He had brought the call details of the mobile number 9968255478 belonging to PW12 Harish Kumar independent witness for the period 20.09.2011 to 15.10.2011 which is ExDW4/C, the certificate U/s 65B is ExDW4/D and he has also proved the Base Trans & Trans & Receive Station(BTS) Site chart(running into 16 pages), which is ExPW4/E. He after looking into the said CDR of the said mobile phone stated that the location of the said mobile phone on 08.10.2011 at 03:19 P.M and 03:22 P.M was at Old Rajinder Nagar area. Similarly DW5 Chander Shekhar, Nodal Officer from Bharti Airtel has RC NO. 21(A)/11 CBI vs. Mahavir Prasad 87 of 97 88 deposed with regard to mobile no. 9650394844 belonging to PW11 Insp. Pramod Kumar who has proved the call details of the CDR of the said mobile from 20.09.2011 to 15.10.2011 Ex DW5/C and certificate U/s 65B is ExDW5/D. He after looking int the CDR and Cell ID Chart regarding location of the said number on 08.10.2011 stated that location of the aforesaid mobile phone at 15:19 hours and 15:42 hours on 08.10.2011 was at New Rajender Nagar area. In these circumstances, it is hard to imagine , when the mobile location of PW12 and that of PW11 verification officer, as late as 03:22 P.M was at New Rajender Nagar area, then how the verification proceedings could be completed at 13:10 hours, while they were present in the office of CBI.
108. Therefore it appears that the said verification memo and the pre trap memo are antetimed. This also shows that no raid was conducted by CBI officials at PS Patel Nagar at around 04:35 P.M or thereafter as it was not humanly possible for them to be present at PS Patel Nagar, in such a short span of time. Therefore this version of defence that no raid was conducted at PS Patel Nagar on 08.10.2011, till around 6:30 P.M appears to be probable.
RC NO. 21(A)/11
CBI vs. Mahavir Prasad 88 of 97
89
109. But at the same time the conduct of the accused is also not above board as he has failed to give any plausible explanation, as to for what purpose he had gone by making DD entry no. 61B in the area of PS Patel Nagar and when later on CBI officials were searching for him in the PS Patel Nagar, as to why he evaded arrest. Though these circumstances have not been properly explained by the accused. It is his defence that he had gone to the area of PS Patel Nagar for patrolling duty, but it has not been explained for what specific purpose he had made only one line DD entry that he was going for patrolling duty in the area of PS Patel Nagar and regarding what purpose, further he could not be later on found, when CBI team went and inquired about the whereabouts of accused from PW9 HC Raj Kapoor Duty officer as well as from the SHO PW8 Pawan Singh Rana who was posted as SHO at the relevant time at PS Patel Nagar, who has stated that in the evening of 08.10.2011, while he was on bandobast duty at Hauz Khazi Chowk, he received a call in the evening by a person who introduced himself ASP, CBI who informed him that CBI had raided to catch Inps. Mahair Prasad and in the night on the same day i.e 08.10.2011 he received a notice Ex RC NO. 21(A)/11 CBI vs. Mahavir Prasad 89 of 97 90 PW2/A from ACP Patel Nagar to get it served upon Insp. Mahavir Prasad, which was got served ultimately, thereafter he submitted the relevant report in the office of ACP.
110. These circumstances show that the accused who was the Additional SHO of PS Patel Nagar, had got the information that CBI was looking for him. It appears that accused thereafter came back to the PS and made DD entry No. 82B at around 11:00 P.M. Though PW9 HC Raj Kapoor has denied that the said DD entry No. 82B was made in the handwriting of the accused. From the tone and tenor of the said DD entry Ex DW9/A, it is apparent that the said DD entry could have only been made by the accused himself as he has given detailed explanation with regard to the investigations being carried out by him regarding the FIR No. 115/10 and regarding the proceedings taken by him in the said case and regarding the fact that he was being falsely implicated, thereafter vide DD No. 9A he informed the duty officer at PS Patel Nagar that he was being treated at Safdarjung hospital. The said DD entry was recorded at 03:40 P.M on 09.10.2011.
111. It appears that accused had something to hide that is why he was running away from the CBI officials instead of RC NO. 21(A)/11 CBI vs. Mahavir Prasad 90 of 97 91 confronting them, but at the same time the said incriminating fact in itself does not prove the culpability of the accused, as defence of the accused is that he was running away from the CBI team as he was under an apprehension that he may be falsely implicated in some case by PW10 the complainant is also probable, though not completely believable in view of the above discussion.
112. Further there are many lacunas in the prosecution case, which even otherwise make the prosecution case highly doubtful as admittedly the DVRs were taken from the custody of caretaker twice, once during verification proceedings in the afternoon on 08.10.2011 and thereafter again at the time of pre trap proceedings on 08.10.2011 in the late afternoon, but no DD entry has been produced on the record regarding issuance of DVR, its make and number of the same or any malkhana register. Prosecution has also not produced any entry pertaining to issuance of phenolphthalein powder as also sodium carbonate powder as well as entry regarding return of the remaining phenolphthalein powder after pre trap proceedings with Malkhana Caretaker. Further there is no DD entry placed on the record regarding leaving of the verification RC NO. 21(A)/11 CBI vs. Mahavir Prasad 91 of 97 92 officer PW11 alongwith the complainant and independent witness Harish Kumar during the verification proceedings from the CBI office and thereafter their return from PS Patel Nagar. Similarly there is no DD entry showing the departure of raiding party for raid at the time of actual trap proceedings and return of the raiding party to the CBI office for conducting post trap proceedings. As discussed previously, even the material witnesses of the prosecution i.e friend of PW10 Satender @ Babar and driver of the accused Bacchan Singh who had accompanied PW10 to the office of CBI have not been examined by the prosecution for the reasons best known to them. This also cast serious doubt on the story of the prosecution.
113. Further the prosecution has relied upon sanction accorded to prosecute the accused. In this regard they have examined PW6 Sh. Taj Hassan, Special CP, Traffic who stated that he at the relevant time when he accorded sanction for the prosecution of the accused Mahavir Prasad, as he was posted as Joint Commissioner, Central Range.
114. In his cross examination he stated that photocopy of the draft sanction order is ExPW6/DA, besides synopsis of the RC NO. 21(A)/11 CBI vs. Mahavir Prasad 92 of 97 93 case, the file was not containing any statement U/s 161 Cr.PC, copy of the RC, report of any CFSL expert or any other document. He also stated that he considered himself to be a competent authority relating to the rank of Inspector as it is prescribed in Delhi Police Act. He stated that it was correct that accused was promoted to the rank of Inspector by the order of Commissioner of Police, Delhi dated 27.01.2010, copy of which is ExPW6/DA. Ld. Counsel for the accused has relied upon the following judgments on the point of sanction which are as under:
1. 1996(2) 39 MP titled as Ashok Rangshahi Vs. State of M.P
2. 1994(3) CC Cases 38(Delhi HC) titled as Omkar Chand Parashar Vs. The State
3. 2006(4)RCR(Criminal) 53 SC titled as State Inspector of Police Vs. Surya Sankaram Kari
4. Indian Law Reports(1974) II 400(Delhi DB) titled as Devinder Singh
115. From the perusal of sanction order and draft sanction letter ExPW6/DA it appears that final sanction order is the verbatim copy of draft sanction order. Therefore it appears RC NO. 21(A)/11 CBI vs. Mahavir Prasad 93 of 97 94 there is total non application of mind in according sanction, as it is not clear how without considering the statement of witnesses U/s 161 Cr.PC, copy of FSL report of CFSL expert or any other document the Joint Commissioner of Police could accord the sanction to prosecute the accused, as he had no material to reach the said conclusion, even otherwise it appears that accused was appointed by the Commissioner of Police Delhi to the post of Inspector, therefore he could have only been removed by the order of Commissioner of Police. Therefore sanction to prosecute could have only been granted by the Commissioner of Police. Therefore sanction suffers from non application of mind as well as competency of the sanctioning authority to accord sanction and in this regard judgments relied upon by the accused are applicable to the facts and circumstances of the present case.
116. All these facts cumulatively crumble the credibility of the prosecution story, it severally dents the probative force of prosecution evidence as a whole.
117. In view of the above discussion given, the entire mass of prosecution and defence evidence discussed on the record, how likely is this evidence given that accused demanded and RC NO. 21(A)/11 CBI vs. Mahavir Prasad 94 of 97 95 accepted the bribe money which was not recovered from him which can be termed as likelihoodI(propositionI) or how likely is this evidence given that accused never demanded, accepted bribe money which was not recovered from him, which can be termed as likelihoodII(propositionII) The probative force of this likelihood method depends upon the relative sizes of the two likelihoods i.e likelihoodI and likelihoodII.
118. How much stronger is this evidence depends how much propositionI is greater than propositionII or vice versa. If likelihood propositionII is much greater than likelihood propositionI given the mass of entire evidence lead on the record by the prosecution or defence then the accused is likely to be acquitted & vice versa, the accused is liable to be convicted if both are equals then it can be said that both of them have equal probative value.
119. In view of the above discussion, it is apparent that the probative force of propositionII i.e likelihoodII is much greater than the likelihoodI or propositionI, that is to say that the probative force of the evidence lead on the record in RC NO. 21(A)/11 CBI vs. Mahavir Prasad 95 of 97 96 favour the propositionII is much much greater than propositionI i.e likelihoodI which favours innocence of the accused.
120. On the scale of 1 to 10, where happening of any event is measured the probative force of the entire mass of the evidence lead on record taken as a whole is touching the point of almost uncertainty. It can be given at the most 2 points on such scale of '10' i.e 20% probability '1' being the certainty or 100%. On such kind of evidence, it can be said that it is highly unlikely that the accused was guilty of the offence for which he has been charged. The prosecution has to prove its case beyond reasonable doubt and on said scales it should be touching the point of certainty if not one, it should be somewhere around 8 or 9 that is to say 80% and 90% which is not the case in hand. In these circumstances, accused is liable to be acquitted of the charges U/s 7 & 13(1)(d) r/w 13(2) of PC Act 1988 of PC Act and also Section 201 IPC. Accused has already furnished bail bond U/s 437A Cr.P.C at the stage of final arguments which will remain in force for a period of 6 months from today as stipulated in the said section.
RC NO. 21(A)/11 CBI vs. Mahavir Prasad 96 of 97 97 121. File be consigned to Record Room. ANNOUNCED IN THE OPEN (Sanjeev Aggarwal) COURT ON 28.08.2015 Special Judge, CBI03 (PC Act) Delhi/28.08.2015 RC NO. 21(A)/11 CBI vs. Mahavir Prasad 97 of 97