Delhi District Court
Of Case Titled As State vs Mahesh & Others Bearing Fir No. on 21 September, 2013
1
IN THE COURT OF SH. N. K. SHARMA, SPECIAL JUDGE
(PC ACT)-02 DELHI.
RC No. 15 (A)/03
CBI/ACB/NEW DELHI
CC No. 22/04
ID No.02401R5465202004
CBI
VS
1. VIPIN KUMAR YADAV,
S/O SH. D.S. YADAV,
R/O D-202, PLOT NO.23,
SABKA GHAR, CGHS,
SECTOR-6, DWARKA,
NEW DELHI.
2. MANOHAR LAL SHARMA,
S/O SH. VANSDEEP SHARMA,
R/O G-27, ARYA SAMAJ ROAD,
UTTAM NAGAR,
DELHI.
PERMANENT ADDRESS:
WZ-71, POSANGI PUR,
JANAKPURI, NEW DELHI.
3. ASHOK KUMAR DAHIYA
S/O LATE SH. OM PRAKASH
R/O VILLAGE AND POST OFFICE ROHNA,
DISTRICT SONEPAT, HARYANA.
1 of 110
2
Date of Institution :28.05.2004.
Date of Arguments :12.09.2013.
Date of Judgment :21.09.2013.
JUDGMENT
1. This judgment will dispose off the CBI criminal case referred to herein above filed by the CBI on 28.05.2004.
2. Briefly stated, relevant facts for the disposal of the case are that this case was registered on the written complaint dated 22.02.2003 of Sh. Abdul Wazid, wherein it was alleged that on 21.02.2003 at about 7.30 AM two persons claiming to be police officials of PS Uttam Nagar, came to his residence and took the search of his Maruti Esteem Car bearing registration no. DL-6C-5891. Though nothing incriminating was recovered, the policemen, however, claimed to have taken out a small packet beneath the bumper of the car and told complainant Sh. Abdul Wazid that the packet contained Narcotics Drug 'Smack'. They threatened to arrest complainant Sh. Abdul Wazid under NDPS Act unless 2 of 110 3 he procure a bribe of Rs. 5,00,000/- from one Sh. Sharafat Sheikh whose guest house in Nizamuddin was being run by complainant Abdul Wazid. Complainant Abdul Wazid spoke to Sh. Sharafat Sheikh who was in Mumbai and briefed him about the matter. Sh. Sharafat Sheikh in turn spoke to one of the policemen and struck a deal for payment of bribe of about Rs. 2,00,000/- for not implicating complainant Abdul Wazid. Meanwhile, a third policeman also came to his residence. The police official who was striking the deal was earlier talking to a third person and taking instructions from him. Complainant Abdul Wazid could arrange to deliver a payment of Rs. 14,000/- which was available at his residence at that time to the third policeman who had come later and left after sometime. The two policemen then took complainant Abdul Wazid out of his house in his own car and drove around Janakpuri / Uttam Nagar area. They were spotted and enquired by one officer of Police Post Uttam Nagar East. After sometime, a message was received from Sh. Sharafat 3 of 110 4 Sheikh that his driver Sh. Gaffar is arriving with more money. Sh. Gaffar reached at the place told by the policeman and handed Rs. 45,000/- to the policemen. The two policemen instructed to arrange remaining amount by 22.02.2003 and they could give a call on said day.
3. Complainant Abdul Wazid lodged a written complaint dated 22.02.2003 with the SP/CBI/ACB/ New Delhi as he did not want to pay the bribe and a regular case vide RC-DAI-2003-A-0015 was registered U/s 7 of the Prevention of Corruption Act, 1988 against three unknown officials of PS Uttam Nagar on 22.02.2003 and the case was entrusted to Inspector Alok Kumar, CBI / ACB, New Delhi for investigation.
4. A trap team was constituted on the same day i.e. 22.02.2003 under the leadership of TLO/Inspector Alok Kumar. The presence of independent witnesses have been secured. The trap team alongwith complainant Abdul Wazid, Sh. Sharafat Sheikh and two independent witnesses started waiting for the possible telephone call from the accused 4 of 110 5 persons.
5. At about 12 PM a telephone call came on the mobile no. 9810822253 of Sh. Sharafat Sheikh. Two calls were made and there was a detailed conversation between Sh. Sharafat Sheikh and the policeman on the other side. The said conversation was recorded in the presence of independent witnesses on a digital tape recorder. The telephonic conversation very clearly established that the complainant Abdul Wazid @ Master Ji was allegedly caught with smack by the two policemen and was released subsequently on the assurance of Sh. Sharafat Sheikh for agreeing to pay bribe of Rs. 2,00,000/- out of which payment of about Rs. 1.5 lacs was outstanding.
6. During conversation Sh. Sharafat Sheikh informed the accused persons that he could arrange only Rs. 40,000/- after which the policeman directed him to send the amount with Master Ji @ complainant Abdul Wazid to his residence from where the amount would be collected. He also directed 5 of 110 6 him to arrange the remaining amount possibly by the next day.
7. Accordingly, trap team after completing Pre-Trap formalities went to the residence of complainant Abdul Wazid. The Trap team took suitable positions near the house of complainant Abdul Wazid and started waiting for a telephonic signal from him. At about 3.00 PM the complainant, Sh. Abdul Wazid came outside his residence and informed the trap party that he had received a call from the same policeman who wanted him to hand over the money to a flower seller who sits opposite Chajju Ram Hospital. When complainant Abdul Wazid insisted for handing over money in person, another telephone call came at about 3 PM in which the policeman asked him to arrange the full remaining amount and then he would be informed in a day or two about further course of action. Sh. Sharafat Sheikh had also received few telephone calls from the same policeman regarding the transaction of bribe during the same time.
6 of 110 7 Shadow witness corroborated the above version of complainant Abdul Wazid. A memo was prepared on the spot of proceedings and the trap team came back.
8. During investigation a transcript of the recorded conversation held between Sh. Sharafat and the suspect was got prepared which clearly established that complainant Abdul Wazid was allegedly favoured by the policemen in view of part receipt of money on 21.02.2003 out of Rs. 2,00,000/- bribe was settled and rest of the amount i.e. about Rs. 1.5 lacs were yet to be delivered and the same were demanded on 22.02.2003.
9. During investigation attempts were made to establish the identity of the policemen involved in the matter. On 28.02.2003, information was received that one of the suspected policeman is constable Manohar Lal posted at PS Uttam Nagar having mobile phone no. 9818045478. Same day in the presence of independent witnesses, a telephone call was made by Sh. Sharafat Sheikh from his mobile phone 7 of 110 8 to aforesaid mobile no.9818045478. Sh. Sharafat Sheikh asked for Manohar Lal and gave his identity, but the person on the other side said it was a wrong number and switched off the mobile phone. Sh. Sharafat Sheikh, however, identified his voice and that of the policeman who had talked to him on 21.02.2013 and 22.02.2013. Call details of the aforesaid mobile number revealed that on 21.02.2013, during the relevant times calls were being made between the aforesaid mobile no. and another mobile no. 9810086792 belonging to accused Vipin Kumar Yadav who was posted as Sub Inspector in PS Uttam Nagar. Mobile no. 9818045478 was registered in the name of Sh. Anil Kumar R/o W-Z 110A, Tihar Village, New Delhi. Later during investigation Sh. Anil Kumar was examined who stated that he had never applied for a Sim Card in his own name and the above mobile no. was not with him. He also stated that once his driving license was taken by a police constable during one of the traffic checks which he never claimed back as it has expired. The 8 of 110 9 call details of above mobile number also revealed that a telephone call was made to land line number 25541161 registered in the name of Manohar Lal himself with residential address as W-Z 71, Vill. Posangi Pur, New Delhi. The accused person had used the mobile phone of the son of Sh. Abdul Wajid i.e. Sh. Shahzad's mobile no. 9891114508 for making conversation on 21.02.2003 to Sh. Sharafat Sheikh who was at Bombay on Tel. No. (022) 28864327 for four times between 8.30 AM to 09.15 AM. The telephone call on 22.02.2003 received in CBI office and during the attempted trap were all made from STD/PCO booth mostly located in the vicinity of PS Uttam Nagar. The record from Airtel Company revealed that both the telephone nos. of Sh. Gaffar i.e. 9810195190 and Sh. Manohar Lal were positioned near the same Airtel Tower on 21.02.2003 when the money was handed over by Sh. Gaffar to Sh. Manohar Lal.
10. Investigation further revealed that at the address WZ-71, Village Posangipur, New Delhi, parents of Manohar 9 of 110 10 Lal were staying and he himself alongwith his family was staying in a rented accommodation at G-27, Arya Samaj Road, Delhi. After establishing the identity of Constable Manohar Lal, searches were conducted at his parental house as well as the rented accommodation on 02.04.2003. The searches at the parental house led to the recovery of a telephone diary possessed by his father which contained an entry about the mobile phone no. 9818045478 possessed by Constable Manohar Lal. Constable Manohar Lal was arrested by covering his face from his rented accommodation. He admitted having used above mobile phone no. and also his involvement in the crime. He stated that the other person with him who went to the residence of Masterji was Constable Ashok Kumar posted in the same police station and the officer who was giving instructions was Sub Inspector Vipin Kumar posted in the same police station. The name of Constable Ashok Kumar had earlier been provided by a source which was confirmed after the arrest of Sh. Manohar 10 of 110 11 Lal. On the same day i.e. 02.04.2003 searches were also conducted at the residence of Sub Inspector Vipin Kumar. He later appeared in CBI office and was arrested. From his personal search his mobile telephone no. 9810086792 was recovered from which he was giving instructions to Constable Manohar Lal on the mobile phone possessed by him. Both the accused were granted two days PC. During their custody in CBI, their faces were kept muffled so that they could be subjected to a Test Identification Parade (TIP). When they were produced in the court for seeking police custody remand, they refused to keep their faces muffled in the court and uncovered themselves a fact recorded in their order for police remand. During Judicial Custody, application was made for the TIP but the two accused persons refused to undergo TIP on the pretext that they had been shown to many persons during their custody in CBI.
11. The investigation revealed that Constable Ashok Kumar was on an official tour to Badayun, UP on 02.04.2003 11 of 110 12 and was scheduled to come back on 03.04.2003. Constable Ashok Kumar however became absent and appeared on 07.04.2003 before CBI. He was also arrested and his face was also kept muffled. He, however, later refused to undergo TIP on the same pretext.
12. During investigation the specimen voices of all the three accused were taken and sent to CFSL for comparison with the conversation recorded in CBI office on 22.02.2003 and 28.02.2003. CFSL expert vide his report no. 2003/P-0229 dated 31.07.2003 confirmed that the voice recorded on 22.02.2003 belonged to Constable Manohar Lal. Expert could not give any opinion on the conversation dated 28.02.2003 for want of sufficient material.
13. During investigation the call details of all the mobile phones in possession of Sh. Abdul Wajid, Sh. Mohd. Shazad (son of Abdul Wajid), Sh. Sharafat Sheikh, Sh. Gaffar (driver of Sh. Sharafat Sheikh), Constable Manohar Lal and SI Vipin Kumar were obtained and scrutinized which corroborated the 12 of 110 13 FIR as well as the developments of 22.02.2003 and the version of witnesses to the incident.
14. Investigation revealed that the relevant mobile numbers used by various persons are as under:-
Sl. MOBILE OWNERS
NO. NUMBERS
1. 9810086792 VIPIN KUMAR YADAV, SI.
2. 9818045478 MANOHAR LAL, CONSTABLE.
3. 9891314422 ABDUL WAZID,
COMPLAINANT.
4. 9891114508 SHAHZAD, SON OF ABDUL
WAZID.
5. 9810822253 SHARAFAT SHEIKH
6. 9810707656 SHARAFAT SHEIKH
7. 9810195190 GAFFAR, DRIVER OF
SHARAFAT SHEIKH
15. Investigation revealed that mobile call details
provide date, time duration, outgoing/incoming call details alongwith tower/cell position from which transmission take 13 of 110 14 place. The first three digits depicts tower/cell position while 4th digit tells about the sector i.e. 1,2 or 3 only.
16. Investigation revealed that between 8.30 AM to 9.15 AM on 21.02.2003 four calls made from cell no. 9891114508 (Shahzad s/o Abdul Wazid) to tel no. 022-28864327 i.e. at Bombay to Sh. Sharafat at 8.42 AM (23 seconds) 8.47 AM (214 seconds) and 9.05 AM (119 seconds) from Uttam Nagar only i.e. at the relevant period of time when deal was struck for illegal gratification by the accused.
17. Investigation revealed that Sh. Abdul Wazid (Mob. No. 9891314422 ) was in Janak Puri and Uttam Nagar area between 10.00 AM to 11.48AM on 21.02.2003 and at 11.48 AM received call from Gaffar (Mob No. 9810195190) lasting for 23 seconds in order to know exact place as he was already reaching Janak Puri red light as per directions (who left Nizamuddin at 11.00 AM and in the way received calls from residence of complainant) and at 11.45 AM contacted Abdul Wazid on his mobile enquiry about specific place to 14 of 110 15 reach in Janakpuri. After making paymen of Rs. 45,000/- to the two accused Sh. Gaffar received two calls from Sharafat (Mob. No. 9810822253) at 12.10.20 and 12.13.48 for 18 and 23 seconds, respectively. Meanwhile Sh. Manohar Lal on his cell no. 9818045478 received calls from SI Vipin Yadav at 11:54:55 and 12:06:01 for 38 seconds and 101 seconds, respectively. While Sh. Gaffar was confirming about payment made to accused, the accused Manohar Lal was confirming to accused Vipin about payment being received. These calls were received by both Gaffar and Manohar from same sector of same Tower No.701 located at Chanakaya Place near Jeevan Park, Uttam Nagar, thereby confirming chain of events that took place. During the later hours of the day, the complainant remained in Trans Yamuna area confirmed as per cell records also.
18. Investigation revealed that mobile no. 9819045478 held by accused Manohar Lal remained in Uttam Nagar/ Janak Puri area since 5.30AM till 12:45 PM on 21.02.2003 at 15 of 110 16 different points. Accused Manohar Lal made call at 08:20:01 and 08:44:11 and later at 12:04:23 to SI Vipin on cell no. 9810086792 and also received calls from SI Vipin at 08:52:52 and 11:53:18 who was present in Uttam Nagar area till 09:46 AM and later at Tis Hazari Court area. The continuous contact between the two during the relevant time and happenings as per the evidence on record confirm the active involvement of accused Vipin in the matter. Record of the incoming/outgoing call made to PS Uttam Nagar to accused Vipin's mobile, documents in the house of parents of accused Manohar Lal, record of police station, calls made at his residence MTNL phone besides other facts confirmed the possession of Mobile No. 9818045478 by accused Manohar during relevant period of time.
19. Investigation revealed that on 22.02.2003 Sh. Sharafat received three relevant calls at time 12:02:15 (40 seconds) 12:03:10 (452 seconds) and 12:06:06 (279 seconds) on his mobile no. 9810822253 from PCO at Uttam 16 of 110 17 Nagar (No. 25356168) out of which two later calls were got recorded in front of independent witnesses. Further there is a call made to mobile no. 9818045478 of accused Manohar on 28.02.2003 at 16:39:59 from his mobile No. 9810707656 for 9 seconds only.
20. During investigation, statement of Sh. Surender Singh Sehrawat, SHO, PS Uttam Nagar was recorded who stated that on 26.02.2003, he received a telephone from DCP, West who inquired about registration of a FIR by CBI against the three unknown police officials of PS Uttam Nagar, since there was a reference of Uttam Nagar Chowki in the FIR, he spoke to Sh. Tejpal, SI posted at Uttam Nagar outpost who stated that about 4-5 days ago he had spotted Constable Manohar Lal (identified later by him) seated in a Maruti Esteem Car with a private person. Upon inquiring the reason for his presence near the chowki, Constable Manohar Lal stated that they were waiting for a friend. SI Tejpal also corroborated the above version of the SHO. SHO further 17 of 110 18 stated that when he confronted Constable Manohar Lal about this, he told him that on 21.02.2003, on receipt of a source information regarding theft of a car, he alongwith SI Vipin Kumar and Constable Ashok Kumar had stopped the car of Masterji on 21.02.2003 at about 7.30 AM and let him off after doing necessary verification. Constable Ashok Kumar and SI Vipin Kumar also narrated the same version to the SHO. SHO further stated that he had not been informed about any such information prior to this. The investigation revealed that there was no mention of this fact in the general diary maintained at the police station.
21. Investigation revealed that :-
(i) Neither Constable Manohar Lal nor Constable Ashok Kumar was detailed to search the car for Narcotic drugs.
(ii) Both the said constables were "not on duty" when they had searched the car of Abdul Wazid.
(iii) Both the said constables had not informed the SHO 18 of 110 19 of the concerned PS of having discovered narcotics drugs or otherwise.
(iv) The SHO of the PS Uttam Nagar had not detailed the two policeman to search for and locate drugs.
(v) The telephone call details pertaining to Constable Manohar Lal, driver Gaffar and SI Vipin Kumar match as per the version of the witnesses given in their statements during investigation.
(vi) The specimen voice of Constable Manohar Lal sent to CFSL for comparison with questioned voice and CFSL opined in positive.
(vii) Since all three accused refused to undergo TIP by judicial authority, identification proceedings were held at CBI on 10.02.2004 when complainant and his son identified all the three accused and on 19.02.2004 Sh. Gaffar identified Constable Manohar Lal and Constable Ashok Kumar.
19 of 110 20 SI VIPIN KUMAR
(i) He is identified by Sh. Abdul Wazid and his son Shazad as third official who came to house at about 9 am on 21.02.2003 and remained there for 15 to 20 minutes and collected Rs.14,000/- and spoke to Sharafat once over phone.
(ii) He was contacted by Manohar on cell phone at 08.20 AM and 8.24 AM and then he contacted Manohar at 8.52 AM and later at 11.53 AM and Manohar contacted him at 12.04 PM i.e. during relevant time of negotiations for demand and acceptance of illegal gratification.
(iii) He admitted before SHO PS Uttam Nagar of having intercepted "Masterji" alongwith his two constables Manohar and Ashok in morning hours at relevant time on 21.02.2003.
(iv) He never made any entry in the Daily Diary of any information or even told SHO about the incident of 21.02.2003 nor was assigned any duty by SHO in this 20 of 110 21 regard.
(v) He denied undergoing TIP without any valid reasons.
(vi) He was named in the disclosure made by constable Manohar on 02.04.2003 in front of independent witnesses. CONSTABLE MANOHAR LAL
(i) He is identified by Sh. Abdul Wazid and his son Sh. Shazad as the one who came to house along with another police officials and negotiated the deal of bribe with Sharafat and Abdul Wazid and was taking instructions on phone from the third policeman (SI Vipin Kumar). This man later took away Sh. Abdul Wazid in his car for receiving part of remaining payment of illegal gratification.
(ii) He is identified by Sh. Gaffar (Driver of Sharafat) as the one who received Gaffar and took him to car of Abdul Wazid and received illegal gratification of Rs.45,000/- and who confirmed it to someone (SI Vipin Kumar) on mobile phone.
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(iii) He is also identified by SI Tejpal (I/c Uttam Nagar Police Chowki) as the one seen on 21.02.2003 seated in a Maruti Esteem Car with another person and to whom he enquired about his presence near the chowki.
(iv) He is the one who made calls to Sharafat for illegal gratification on 21.02.2003 and further demand on 22.02.2003 and his recorded voice is confirmed by CFSL Expert.
(v) He admitted before the SHO PS Uttam Nagar of having intercepted "Masterji" (the complainant) alongwith constable Ashok Kumar and SI Vipin in morning hours at relevant time on 21.02.2003.
(vi) He was not on duty and was not detailed by anyone to conduct verification nor any entry made in the Daily Diary in this regard or informed anyone in the police station.
(vii) He denied undergoing TIP without any valid reason.
(viii) He remained in touch with SI Vipin on his mobile 22 of 110 23 during the relevant time till the payment of illegal gratification.
(ix) He closed his mobile No. 9818045478 soon after it was detected and a call made by Sh. Sharafat through mobile from CBI office on 28.02.2003.
(x) He himself disclosed on 02.04.2003 about the incident vide disclosure memo in front of independent witnesses.
CONSTABLE ASHOK KUMAR
(i) He is identified by Sh. Abdul Wazid and his son Shazad as one who came alongwith Manohar to their house and took away Abdul Wazid in his own car.
(ii) He is identified by Sh. Gaffar (driver of Sharafat) as one who was seated inside the car with Sh. Abdul Wazid when he went to deliver Rs.45,000/- for seeking release of Sh. Wazid.
(iii) He denied undergoing TIP without any valid reasons.
23 of 110 24
(iv) He was not on duty and was not detailed by any one to conduct verification nor any entry made in the Daily Diary of PS in this regard or informed anyone in the police station.
(v) He admitted before SHO PS Uttam Nagar of having intercepted "Masterji" alongwith Constable Manohar Lal and SI Vipin Kumar in morning hours at relevant time on 21.02.2003.
(vi) His unauthorized absence from PS for about 4 days from duty after his crime was detected indicated his guilt.
(vii) He was named in disclosure made on 02.04.2003 by Constable Manohar in presence of independent witnesses.
22. Though the attempted trap on 22.02.2003 to catch the accused live did not materialize as accused were insisting for keeping money at flower shop near Hospital to which the complainant did not agree as per instructions. May be at this stage, the accused persons became suspicious and 24 of 110 25 thereafter decided to call off the matter. Investigation has, however, very clearly established that the three persons had gone to the residence of Sh. Abdul Wazid and threatened to implicate him in a case of NDPS Act on the basis of alleged recovery of smack beneath the bumper of his Maruti Esteem Car. The telephone conversation recorded on 22.02.2003 in CBI office between Sh. Sharafat Sheikh and Sh. Manohar Lal in the presence of independent witnesses establish the demand as well as acceptance of illegal gratification on 21.02.2003. The transcript of conversation has clearly brought out the fact that the policeman had allegedly caught Sh. Wazid with smack and left him only after receiving part payment of bribe. The telephone call details of the mobile phone on which constable Manohar Lal was taking instructions from SI Vipin Kumar has corroborated the chain of events. Further, the facts has been corroborated by the call details available on the mobile phones of the witnesses.
23. It is relevant to mention that whenever an 25 of 110 26 information is received pertaining to possession of narcotics drugs actionable under the NDPS Act, it is only the SHO who is empowered to take action. Moreover he has to record the gist of the information in the daily diary and send a copy to his superior officers before proceeding to the spot alongwith independent witnesses. In this case it is evident that the SHO of the PS was totally in dark. Neither the alleged source information pertaining to theft of a vehicle as claimed by the accused nor pertaining to possession of narcotics drug smack by the complainant were told to the SHO and recorded in the general diary of PS Uttam Nagar dated 21.02.2003.
24. According to the prosecution, the above facts disclosed commission of offences punishable under Section 120-B of IPC, Section 7, 13 (2) read with Section 13(1) (d) of the Prevention of Corruption Act, 1988 on the part of all the accused persons. The sanction for prosecution U/s 19 of the PC Act, 1988 against all the three accused persons were obtained from the Competent Authority and pursuant thereto, 26 of 110 27 the charge sheet was filed in the Court on 28.05.2004.
25. On 27.04.2005, Charges were framed against all the three accused persons under Section 120-B of IPC read with Section 13(2) read with Section 13(1) (d) of the PC Act. Separate Charges for the substantive offences punishable under Section 7 of the PC Act / 120B of IPC and under Section 13(2) read with Section 13(1) (d) of the PC Act / 120B IPC were also framed against accused Manohar Lal and accused Ashok Kumar Dahiya.
26. In support of its case the CBI examined the following 33 witnesses in all :-
27. PW-1:- Sh. Deepak Kumar Tanwar, SSO-II (Physics),CFSL, CBI, who proved the CFSL report Ex. PW-1/A.
28. PW-2:-Sh. V.K. Sharma, Independent witness, who identified his signatures on the Arrest cum Personal Search Memo of the accused Ashok Kumar Dahiya Ex. PW-2/A. He was declared hostile by the prosecution as he resiled from his 27 of 110 28 previous statement recorded under Section 161 Cr. P. C.
29. PW-3:-Sh. Bansi Dhar, Independent witness, who identified his signatures on the Arrest cum Personal Search Memo of the accused Ashok Kumar Dahiya Ex. PW-2/A. He was declared hostile by the prosecution as he resiled from his previous statement recorded under Section 161 Cr. P. C.
30. PW-4:-Sh. Vinod Kumar, Independent Witness has identified his signatures on the Specimen Voice Recording Memo Ex. PW-4/A. He also identified his signature on the cassette Ex. P-1, cloth wrapper Ex. P-2, audio cassette Ex. P-3, cloth wrapper Ex. P-4, cassette Ex. P-5 and cloth wrapper Ex. P-6.
31. PW-5:-Sh. Bhanwar Singh, Independent Witness has identified his signatures on the Specimen Voice Recording Memo Ex. PW-4/A. He also identified his signature on the cassette Ex. P-1, cloth wrapper Ex. P-2, audio cassette Ex. P-3 and cloth wrapper Ex. P-4.
32. PW-6:-Inspector Surender Singh Sehrawat has 28 of 110 29 deposed that during the year 2003 he was posted in PS Uttam Nagar as SHO. He identified his endorsement and initials at point X on the letter Ex. PW-6/A. He has also identified his signatures on the letter dated 05.05.2003, Ex. PW-6/B.
33. PW-7:-Sh. Abdul Wazid is the Complainant in the present case. He has identified his signatures on complaint Ex. PW-7/A, Handing Over Memo Ex. PW-8/A, Annexure Ex. PW-8/B to Handing Over Memo Ex. PW-8/A, Telephone Conversation Memo Ex. PW-8/C, Rough Transcription Telephonic Conversation Memo Ex. PW-8/D and Rough Transcription Ex. PW-8/E.
34. PW-8:-Sh. Ram Kumar, Independent Witness has identified his signatures on Handing Over Memo Ex. PW-8/A, Annexure Ex. PW-8/B to Handing Over Memo Ex. PW-8/A, Telephone Conversation Memo Ex. PW-8/C, Rough Transcription Telephonic Conversation Memo Ex. PW-8/D, Rough Transcription Ex. PW-8/E. 29 of 110 30
35. PW-9:-Sh. Chotey Lal, Independent Witness identified his signatures on the Handing Over Memo Ex. PW-8/A, Annexure Ex. PW-8/B to Handing Over Memo Ex. PW-8/A, Telephone Conversation Memo Ex. PW-8/C, Rough Transcription Telephonic Conversation Memo Ex. PW-8/D, Rough Transcription Ex. PW-8/E.
36. PW-10:-Sh. R.K. Singh, Nodal Officer, Bharti Cellular Ltd., Okhla Phase-1, New Delhi identified his signatures on the letter dated 20.05.2003 Ex. PW-10/A, addressed to Sh. Alok Kumar, Inspector of Police, CBI. He has also identified the signatures of Sh. Bakshi on the annexures Ex. PW-10/B of Ex. PW-10/A. Annexures Ex. PW-10/B are related to the Location Area Coverage (SITE ID Chart) which describes the location of the tower and the subscriber / user as well as the serial no. of tower. He has also identified the signatures of Captain Rakesh Bakshi on the Customer application Ex. PW-10/C of Mobile No. 9810086792 in the name of accused Vipin Kumar Yadav. He 30 of 110 31 has also identified his ID Proof i.e. Ration Card Ex. PW-10/D in support of his identity filed with the application Ex. PWE-10/C. He has also identified the signatures of Sh. Bakshi on the application Ex. PW-10/E regarding mobile no. 9818045478 in the name of Sh. Anil Kumar as well as on the identity proof of Sh. Anil Kumar i.e. Driving License Ex. PW-10/F. He has also identified the signatures of Sh. Bakshi on the call details of mobile no. 9818045478 w.e.f. 21.02.2003 to 28.02.2003 Ex. PW-10/G, on the call details of mobile no. 9810086792 w.e.f. 21.02.2003 to 02.04.2003 Ex. PW-10/H, on the call details of mobile no. 9810822253 w.e.f. 20.02.2002 to 23.02.2003 Ex. PW-10/J, on the call details of mobile no. 9810707656 w.e.f. 28.02.2003 to 22.03.2003 Ex. PW-10/K and on the call details of mobile no. 9810195190 w.e.f. 21.02.2003 to 21.02.2003 Ex. PW-10/L.
37. PW-11:-Ms. Seema Nair, Assistant Manager, Legal, Idea Cellular Ltd identified the signatures of his colleague Sh. Umesh Kalra on the letter dated 14.03.2003 alongwith 31 of 110 32 annexures Ex. PW-11/A regarding the complete data of outgoing and incoming calls of mobile no. 9891314422 for the period from 15.02.2003 to 07.03.2003. She has also identified the signatures of Sh. Umesh Kalra on the letter dated 10.05.2003 Ex. PW-11/B vide which site addresses of 4 locations were sent to CBI. She has also identified the signatures of Sh. Umesh Kalra on the letter dated 20.06.2003 Ex. PW-11/C vide which call details record pertaining to mobile no. 9891114508 for the date 21.02.2003 was sent to CBI.
38. PW-12:-Sh. Anil Kumar Chotani, identified the photocopy of his driving license Ex. PW-10/F. He has deposed that his driving license was taken by a traffic constable at Lajwanti Chowk, red light, Janak Puri, Delhi and the same was not returned back to him. He further deposed that he never had any mobile no. 9818045478.
39. PW-13:-SI Tej Pal has deposed that from May, 2002 to 2004, he remained posted at PP East Uttam Nagar, Delhi.
32 of 110 33 He has identified the accused Manohar Lal in the court as the constable of PS Uttam Nagar.
40. PW-14:-Inspector Mujeeb-Ur-Rehman, posted at ICD, Tuglaqabad identified his signatures on the Telephonic Call Recorded Memo Ex. PW-14/A.
41. PW-15:-Sh. Munshi Ram, Independent witness identified his signatures on the Search cum Seizure Memo Ex. PW-15/A.
42. PW-16:-Sh. B. S. Arora, Independent witness has also identified his signatures on the Search cum Seizure Memo Ex. PW-15/A.
43. PW-17:-Sh. Anil Kumar Bhardwaj, Independent witness identified his signatures on the Disclosure Memo Ex. PW-17/A, on Search cum Seizure Memo Ex. PW-17/B and on the Arrest cum Personal Search Memo Ex. PW-17/C. He also identified accused Manohar Lal in the court as the person who was arrested on 02.04.2003.
44. PW-18:-Sh. Dharamvir Panwar, Independent 33 of 110 34 witness identified his signatures on the Disclosure Memo Ex. PW-17/A, on Search cum Seizure Memo Ex. PW-17/B and on the Arrest cum Personal Search Memo Ex. PW-17/C. He also identified accused Manohar Lal in the court as the person who was arrested on 02.04.2003.
45. PW-19:-Sh. Anil Kumar Goel, Independent witness identified his signatures on the Arrest cum Personal Search Memo Ex. PW-19/A.
46. PW-20:-Sh. R.S. Bedi has deposed that he was on deputation to CBI/ACB as Inspector w.e.f. 01.01.99 to August, 2005 and he conducted the house search of House no.W-71, Posangipur, Janak Puri, New Delhi on 02.04.2003. He identified the diary Ex. PW-20/A as the same which was recovered during the aforesaid house search. He identified his signatures on the Search cum Seizure Memo Ex. PW-15/A.
47. PW-21:-Sh. Om Prakash has deposed that he was posted as Inspector in CBI w.e.f. December 1998 to 34 of 110 35 05.12.2010. He further deposed that on 02.04.2003 he alongwith Inspector Alok Kumar and other two Independent witnesses conducted the house search of accused Manohar Lal at his residence at Arya Samaj Mandir Road, Uttam Nagar, Delhi. He identified his signatures on the Disclosure Memo Ex. PW-17/A, on he Search cum Seizure Memo Ex. PW-17/B and on the Arrest cum Personal Search Memo Ex. PW-17/C.
48. PW-22:-Inspector Manoj Kumar, CBI/EOU-I, New Delhi has identified accused Manohar Lal in the court as the person who was arrested on 02.04.2003. He has also identified his signatures on the Disclosure Memo Ex. PW-17/A.
49. PW-23:-Inspector Lalit Kaushik, CBI Academy, Ghaziabad, U.P. has deposed that on 22.02.2003, on the directions of SP, CBI he reported Inspector Alok Kumar to assist him in some official work. He identified his signatures on the Handing Over Memo Ex. PW-8/A and on the Memo 35 of 110 36 Ex. PW-8/C.
50. PW-24:-Inspector A.K. Singh, CBI/ACB, New Delhi has deposed that he was one of the members of the trap team constituted by Inspector Alok Kumar on 22.02.2003. He identified his signatures on the Handing Over Memo Ex. PW-8/A and its annexure Ex. PW-8/B as well as on the Memo Ex. PW-8/C.
51. PW-25:-Dy. SP Mridula Shukla, ACU-IV, CBI, New Delhi has deposed that on 02.04.2003 he was given authorization by Inspector Alok Kumar to carry out the house search of accused Manohar Lal situated at Posangi Pur, Janak Puri, New Delhi. He has identified his handwriting and signatures on the Search Memo Ex. PW-15/A. He also identified the diary Ex. PW-20/A as the same which was recovered during the house search of accused Manohar Lal wherein mobile number of accused Manohar Lal i.e. 9818045478 is mentioned.
52. PW-26:-Inspector Prem Nath deposed that he was 36 of 110 37 associated in the pre trap proceedings on 22.02.2003 in CGO Complex, Delhi. He identified his signatures on the Handing Over Memo Ex. PW-8/A as well as on the Memo Ex. PW-8/C.
53. PW-27:-Sh. Sharafat Sheikh identified his signatures on the Handing Over Memo Ex. PW-8/A, on its annexure Ex. PW-8/B, on the Rough Transcription Memo Ex. PW-8/D, on the Rough Transcription of Telephonic Conversation Ex. PW-8/E, on the Rough Transcription Memo Ex. PW-27/A, on the Telephone Call Recording Memo Ex. PW-14/A.
54. PW-28:-Sh. P.K. Jain, Ld. ASJ, Tis Hazari Court, Delhi, the then Ld. MM, Tis Hazari Court has deposed that during the year 2003 Inspector Alok Kumar produced accused Manohar Lal and accused Vipin Kumar Yadav before him for TIP but on asking they refused to participate in the TIP proceedings, their statement to this effect was recorded separately. He identified his signatures on the statement of both the accused persons. He also identified his note Ex. PW-28/A below their statements.
37 of 110 38
55. PW-29:-Sh. Satish Golcha, DIG, STF (CBI), New Delhi has deposed that he was the competent authority to remove Sub Inspectors and constables. He has identified his signatures on the Sanction Order Ex. PW-29/A.
56. PW-30:-Sh. A.K. Kuhar, Ld. ASJ, Saket Courts, Delhi, the then Ld. Metropolitan Magistrate, Tis Hazari courts identified his signatures on the TIP proceedings against accused no.3 Ashok Kumar Dahiya Ex. PW-30/A.
57. PW-31:-Sh. O.P. Narang, the then Commercial Officer, Janak Puri Exchange, New Delhi has deposed that the telephone no. 25541161 was installed at WZ-71, Possangi Pur, Janak Puri, New Delhi in the name of accused no.2 Manohar Lal Sharma. He identified his signatures on the letter dated 23.06.2003 vide which he gave information to the CBI regarding the status of telephone no. 25541161 that the said telephone number was transferred in the name of Sh. Vanshdeep Sharma from accused Manohar Lal Sharma.
58. PW-32:-Sh. Abdul Gaffar has identified accused 38 of 110 39 Vipin Kumar Yadav in the court as the person to whom he handed over Rs.45,000/-, wrapped in paper. He has identified accused Vipin as accused Ashok Kumar Dahiya. He has also identified accused Ashok Kumar Dahiya as accused Manohar Lal.
59. PW-33:-Inspector Alok Kumar is the Investigating Officer of the present case.
60. After conclusion of the prosecution evidence, statement of all the accused persons u/s 313 Cr. P.C was recorded. The accused persons have denied their involvement in commission of offence and have stated that they have been falsely implicated in this case by the complainant. It has been submitted by the accused no. 1 Vipin Kumar Yadav that on 21.02.2003, when he was on the way to Tis Hazari Court to attend a bail matter in FIR no. 1032/02 under Section 307 of IPC at 9.15 AM vide DD No. 7A, suddenly it strucked to him that Judicial Remand of accused persons in FIR No. 534/02, under Section 39 of 110 40 498A/304B/302 of IPC had to be got extended. He came back to PS Uttam Nagar and after taking the case file of FIR No. 534/02, he went to Tis Hazari Courts. After attending the bail matter, he proceeded to the Children Courts at Kingsway Camp, Delhi and from there he returned back to PS Uttam Nagar at 4.30 PM vide DD No. 34B. He has further submitted that on 22.02.2003, he was on emergency duty from 8.00 AM to 8.00 PM and on that day, he went to Tis Hazari Courts in FIR No.608/02, under Section 420/468/471 of IPC at 01.05 PM vide DD No. 21B, for arresting an accused who was surrendering before the Court. He came back to PS Uttam Nagar at 4.30 PM vide DD NO. 12A. As such throughout the days on 21st and 22nd February, 2003, he remained awfully busy in his office work. He has also deposed that PW-7 Abdul Wazid falsely implicated him in this case at the instance of Shoraib Sheikh (now deceased), the elder brother of PW-27 Sharafat Sheikh.
61. It has been submitted by the accused Manohar Lal 40 of 110 41 that on 22.02.2003, he went alongwith UP Police Officials namely ASI Gandharv and one constable vide DD No. 17B at 12.00 Noon at A-100, Maharani Enclave, Uttam Nagar, Delhi, for execution of warrant under Section 83 Cr. P. C. in case FIR No. 272/01, under Section 2,3 Gangster Act, PS Naraooli, Mathura, UP and came back vide DD No. 25-B at 4.30 PM dated 22.02.2003 alongwith UP Police Officials.
62. It has been submitted by accused no.3 Ashok Kumar Dahiya that he has been falsely implicated in the present case after being handed over to CBI by ASI Satish in the morning of 07.04.2003 and at the instruction of SHO PS Uttam Nagar. He has further submitted that he never visited the house of the complainant nor demanded or received any amount from him at any point of time.
63. In their defence, accused persons has examined the following 8 witnesses:-
64. DW-1:-HC Raj Kumar brought the summoned record i.e. Roznamchas A and B dated 19.02.2003 to 22.02.2003 41 of 110 42 from PS Uttam Nagar wherein entries pertaining to arrival and departure of accused no.1 Vipin Kumar Yadav, accused no.2 Manohar Lal and accused no.3 Ashok Kumar Dahiya from PS Uttam Nagar were recorded.
65. DW-2:-HC Manbir Singh brought the original register of Posting / Transfer of Lower Subordinates posted at West District. As per record, HC Pradeep Kumar no. 693 (W), PIS No. 28841027 was posted at PS Uttam Nagar from 17.03.2001 to 13.09.2003. Thereafter, he was transferred to South District vide PHQ Order dated 16.01.2004 and relieved on 03.02.2004 from PS Vikas Puri. Copy of the relevant page i.e. page no.693 is Ex. DW-2/A.
66. DW-3:-HC Manjit brought the original case diary no. 14 dated 21.02.2003, FIR no. 1032/2002, PS Uttam Nagar, Delhi, U/s 307/325 IPC, copy of which is Ex. DW-3/A. He also brought the case diary no.22 dated 22.02.2003, FIR No. 608/2002, PS Uttam Nagar, Delhi U/s 420/468/471 IPC.
67. DW-4:-Sh. Sunil Dutt, Ahlmad in the court of Ms. 42 of 110 43 Aditi Garg, Ld. MM, Tis Hazari Courts, Delhi brought the summoned record i.e. Judicial file of FIR no. 608/02 PS Uttam Nagar U/s 420/468/471 IPC filed against accused K.K. Nayyar, which is pending for trial in the aforesaid court. He had also brought the application dated 22.02.2003 filed by accused SI Vipin Kumar Yadav for interrogation and arrest of accused K.K. Nayyar, copy of which is Ex. DW-4/A. He had also brought the application dated 22.02.2003 filed by accused SI Vipin Kumar Yadav for judicial custody remand of accused K.K. Nayyar, copy of which is Ex. DW-4/B and the bail order of accused K.K.Nayyar dated 22.02.2003, copy of which is Ex. DW-4/C.
68. DW-5:-Sh. Jagwinder Mann, LDC, Record Room, Rohini Courts brought the summoned record i.e. Judicial file of case titled as State Vs Mahesh & others bearing FIR no. 534/02 PS Uttam Nagar U/s 498A/304B/302/201/34 IPC. He had also brought the application dated 21.02.2003 filed by accused SI Vipin Kumar Yadav for JC remand of accused 43 of 110 44 Mahesh and accused Vinita in aforesaid FIR, filed in the court of Ms. Archana Sinha and MS. Barkha Gupta, the then Ld. MMs Juvenile Court, Delhi. The photocopy of the same is Ex. DW-5/A.
69. DW-6:-SI Satish Kumar has deposed that during the period 2002 to 2005, he was posted as ASI in PS Uttam Nagar, Delhi and on 07.04.2003, he alongwith accused no.3 Ashok Kumar, went to the CBI office on the instruction of SHO PS Uttam Nagar, Inspector Surender Singh Sehrawat, vide DD no. 2B, dated 07.04.03 at around 8:05 AM. The said DD is Ex. DW 1/E. He arrived back after handing over accused Ashok Kr. Dahiya to CBI Official SI Lalit Kaushik and came back at PS Uttam Nagar at around 11:50 AM vide entry in DD no. 17B dated 07.04.2003. Copy of the same is Ex. DW-1/F.
70. DW-7:-SI Rajeev Rana brought the summoned record i.e. Part-I File of Punishment Branch, relating to case RC- DA-I-2002-A-0015 dated 22.02.2003 U/s 7 of PC 44 of 110 45 Act, 1988 against three unknown police officials of PS Uttam Nagar, New Delhi. At Pages 497 to 503, there is letter dated 21.04.2004, signed by Sh. R.S. Yadav, Additional Deputy Commissioner of Police, West District, New Delhi and addressed to SP CBI, New Delhi. The copy of which is Ex. DW-7/A. The said letter is regarding grant of Sanction for Prosecution of SI Vipin Kumar Yadav no. D/698, Ct. Manohar Lal no. 1265/W and Ct. Ashok Kumar no. 1194/W. The letter is also enclosed with the original Sanction Order dated 21.04.2004, running into three pages and each page is signed by Sh. R.S. Yadav, Additional Deputy Commissioner of Police, West District, New Delhi, the copy of which is Ex. DW-7/B. There is one draft Sanction Order at pages from 127 to 133 of the aforesaid summoned file, the copy of which is Ex. DW-7/C. The said draft Sanction Order was forwarded to Sh. Satish Golcha, IPS, the then Deputy Commissioner of Police, West District, New Delhi by the SP, CBI/ACB, New Delhi vide letter dated 22.03.2004, running into two pages, 45 of 110 46 the copy of which is Ex. DW-7/D. He identified the signature of Sh. Satish Golcha, DCP, West District, New Delhi on the Sanction Order dated 24.05.2004, Ex. PW-29/A. He identified the signature of Sh. R.S. Yadav, Additional DCP, West District, New Delhi on the Sanction Order Ex. DW-7/B dated 21.04.2004. He further deposed that Ex. PW-29/A and Ex. DW-7/B are same with respect to words, lines and paras, except the name and designation of the Issuing Authority and date of issue.
71. DW-8:-SI Gandharv has deposed that in the year 2003, he was posted as ASI in PS Narholi, District Mathura, U.P. He further deposed that on 22.02.2003, he alongwith Ct. Ajay Pal , belt no. 515 came to PS Uttam Nagar, New Delhi regarding case titled as State Vs Devender Parmar having FIR no. 272/01 of PS Narholi, U/s 2/3 Gangster Act. He further deposed that he made his arrival and departure for execution of warrant of Devender Parmar (accused in FIR no. 272/01 of PS Narholi) u/s 83 Cr. P. C. at A-100, Maharani 46 of 110 47 Enclave, Uttam Nagar, Delhi alongwith accused Ct. Manohar Lal, belt no. 1265/W of PS Uttam Nagar vide DD no. 17 B dated 22.02.2003 at 12 noon, already exhibited as DW1/C (colly.), bearing his signature at point X. Thereafter, he came back alongwith Ct. Ajay Pal and accused Ct. Manohar Lal at PS Uttam Nagar after execution of the aforesaid warrant on the same day i.e. 22.02.2003 at about 4.30PM, vide DD no. 25B, already exhibited as Ex. DW-1/C (colly.). Accused Manohar Lal remained with him from 12 noon till 4.30 PM on 22.02.2003 and assisted him in execution of the warrant.
72. After the completion of the defence evidence, the case was fixed for final arguments. I have heard final arguments of Sh. J. S. Wadia, Learned PP for CBI and Sh. Sandeep Sharma, Advocate, Ld. Counsel for accused no. 1 Vipin Kumar Yadav, Sh. S. K. Sharma, Advocate, Ld. Counsel for accused no. 2 Manohar Lal and Sh. Rajpal Singh, Advocate, Ld. Counsel for accused no.3 Ashok Kumar Dahiya and perused the record. Ld. Defence counsel for 47 of 110 48 accused no.1 Vipin Kumar Yadav has addressed oral arguments and also filed written submissions running into 22 pages. Similarly, Ld. Defence Counsel for accused no. 2 Manohar Lal has addressed oral arguments and also filed written submissions running into 17 pages. As the detailed written submissions have been filed on behalf of the accused persons, which are on the judicial file, hence on account of brevity, the same are not incorporated in this judgment.
73. Ld. PP for the CBI has argued that the prosecution has proved its case that SI Vipin Kumar Yadav, Constable Manohar Lal Sharma and Constable Ashok Kumar Dahiya being public servant while posted at PS Uttam Nagar entered into a criminal conspiracy and demanded Rs.5 lacs on 21.02.2003 from Abdul Wazid for a motive or reward for not arresting him in the alleged recovery of smack from beneath the bumper of car of the complainant i.e. Abdul Wazid and ultimately the amount was settled at Rs.2 lacs and out of which Rs.14,000/- were taken by the accused persons. Ld. 48 of 110 49 PP has further argued that the accused persons directed the complainant to arrange the balance amount for 22.02.2003. Ld. PP has also argued that the accused persons are the police officials and when they came to know about the trap then they did not turned up at the house of the complainant for taking balance amount of bribe and the trap proceedings got failed. It has been further argued that Prosecution has proved its case beyond reasonable doubts against all the three accused persons, hence they may be convicted. Ld. PP has placed reliance on the following citations :-
1. BHAGWAN JATHYA BHOIR VS THE STATE OF MAHARASHTRA, 1992 CRI.
L.J. 1144.
2. K. NACHIMUTHU VS. STATE, 1994 CRI. L. J. 2760.
3. C. S. KRISHNAMURTHY VS. STATE OF KARNATAKA (2005) 4 SUPREME COURT CASES 81.
74. It has been argued by Sh. Sandeep Sharma, Advocate, Ld. Counsel for the accused no.1 Vipin Kumar 49 of 110 50 Yadav that he has been falsely implicated in the present case. He has further argued that the Prosecution has failed to bring any iota of evidence to show the criminal conspiracy between the accused persons. Ld. Defence Counsel has also argued that there is no direct demand of bribe by accused no.1 from the complainant and there is no case of acceptance of bribe money by accused no.1 either for himself or on behalf of accused no.2 and accused no.3. It is further argued by the Ld. Defence Counsel that no recovery has been effected from the accused no.1 Vipin Kumar Yadav. He placed reliance on the following citations :-
1. RAJ KUMAR VS. STATE, 2011 (4) JCC 2818.
2. PARMINDER SINGH SETHI VS. STATE, 2011 (3) JCC 1814.
3. SUNIL KUMAR SAMBUDAYAL GUPTA VS. STATE OF MAHARASTRA, (2010) 13 SCC
657.
4. PITABASH LOARA VS. STATE OF ORISSA 2011 (4) CRIMES 196 (ORI.)
50 of 110 51
5. SATPAUL VS. DELHI ADMINISTRATIO, AIR 1976 SC 294.
6. MOHD. ABDUL HAFEEZ VS. STATE OF ANDHRA PRADESH, AIR 1983 SC 367.
7. ADESH KUMAR VS. STATE, 1986 CRL. L. J. 233.
8. JITENDER KUMAR SAXENA @ GUDDU VS.
STATE 40(1990) DELHI LAW TIMES (SN)
38.
9. TIRATH PRAKASH VS. STATE, 2001 (2) JCC (DELHI) 102.
10.K. C. SINGH VS. CBI (DELHI HIGH COURT)
11. MARUTI RAM NAIK VS. STATE OF MAHARASTRA (2003) 10 SCC 670.
12. STATE OF U.P.V. MUNDRIKA AND ORS., (2001) 9 SCC 346.
13. K. R. PURUSHOTHAMAN VS. STATE OF KERLA, AIR 2006 SC 35.
75. It has been argued by Sh. S. K. Sharma, Advocate, Ld. Counsel for accused no. 2 Manohar Lal that accused no.2 has been falsely implicated in the present case. He has further argued that the Prosecution has failed to bring any 51 of 110 52 iota of evidence to show the criminal conspiracy between the accused persons. Ld. Defence Counsel has also argued that there is no direct demand of bribe by accused no.2 from the complainant and there is no case of acceptance of bribe money by accused no.2 either for himself or on behalf of accused no.1 and accused no.3. It is further argued by the Ld. Defence Counsel that no recovery has been effected from the accused no.2 Manohar Lal. He placed reliance on the following citations :-
1. NILESH DINKAR PARADKAR VS. STATE OF MAHARASHTRA, 2011(3) JCC 1972 (SC).
2. MAHABIR PRASAD VERMA VS. DR.
SURINDER KAUR, (1982) 2 SCC 258.
3. RAM SINGH AND ORS. VS. COL. RAM SINGH, 1985(SUPP.) SCC 611.
76. It has been argued by Sh. Raj Pal Singh, Advocate, Ld. Counsel for accused no. 3 Ashok Kumar Dahiya that he has been falsely implicated in the present case. Ld. Defence Counsel has submitted that accused no.3 Ashok Kumar 52 of 110 53 Dahiya has not demanded or accepted any bribe money from the complainant as he has no role.
PUBLIC SERVANT & SANCTION
77. The first point for consideration is as to whether the proper sanction for prosecution was accorded before initiation of prosecution against the accused persons or not as required under Section 19 (1) of Prevention of Corruption Act, 1988, which is mandatory and reads as under:-
"19. Previous Sanction necessary for Prosecution:-
(1) No Court shall take cognizance of an offence punishable under Section 7,10,11,13 and 15 alleged to have been committed by a public servant, except with the previous sanction, -
(a) in the case of a person who is employed in connection with the affairs of the union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with sanction of the 53 of 110 54 State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his Office."
78. The undisputed position is that all the three accused persons i.e. accused no. 1 Vipin Kumar Yadav was working as Sub Inspector, accused no. 2 Manohar Lal and accused no. 3 Ashok Kumar Dahiya were working as Constables and were posted at PS Uttam Nagar and all the three accused persons did not dispute this fact in their statement recorded under Section 313 Cr. P. C. Therefore, it stands proved that all the three accused persons were public servants within the meaning of Section 19 of the PC Act, 1988. SANCTION FOR PROSECUTION AGAINST ALL THE ACCUSED PERSONS I.E. ACCUSED NO.1 VIPIN KUMAR YADAV, ACCUSED NO.2 MANOHAR LAL AND ACCUSED NO.3 ASHOK KUMAR DAHIYA.
79. The evidence on record shows that on 24.05.2004, the Sanction Order was accorded for launching Prosecution under Prevention of Corruption Act against accused no.1 54 of 110 55 Vipin Kumar Yadav by PW-29 Sh. Satish Golcha, D.I.G. S.T.F.(CBI), New Delhi, who deposed that during the month of May, 2004, he was posted as Dy. Commissioner of Police, West District, New Delhi and he was the Competent Authority to remove Sub Inspectors and Constables. He has further deposed that he accorded the sanction for prosecution against Sub Inspector Vipin Kumar, Constable Manohar Lal and Constable Ashok Kumar Dahiya after going through the FIR, statements of witnesses and other documents as well as after considering the facts and circumstances of the case. He has further deposed that after applying his mind, he accorded the Sanction Order Ex. PW-29/A. He has identified his signatures on Sanction Oder Ex. PW-29/A.
80. On the other hand, Ld. counsel for all the three accused persons argued that the two Sanction Orders were obtained for launching the Prosecution under Prevention of Corruption Act against all the three accused persons. First Sanction Order Ex. DW-7/B was obtained from Sh. R. S. 55 of 110 56 Yadav, Additional Deputy Commissioner of Police, West District, New Delhi, which is not filed by the CBI. Thereafter Second Sanction Order Ex. PW-29/A was obtained from Sh. Satish Golcha, D.I.G.S.T.F.(CBI), New Delhi and the same was filed by the CBI on the judicial record. It has been also argued that the Sanction Order Ex. PW-29/A is the verbatim of Ex. DW-7/B. It has been also argued that the Sanction order was passed without application of mind. It has been further argued by the Ld. Defence Counsel that the Sanction Order has been passed by the Sanctioning Authority in a mechanical manner and on the basis of Draft Sanction Order which was supplied by the SP/CBI.
81. Ld. Defence Counsel has also argued that the alleged demand in the Complaint Ex. PW-7/A and FIR Ex. PW-33/A is of Rs.1,40,000/- whereas in the Sanction Order Ex. PW-29/A the alleged demand is mentioned as Rs. 1,50,000/-.
82. I have gone through the testimony of PW-29 Sh.
56 of 110 57 Satish Golcha, who deposed that he accorded the Sanction for Prosecution against all the three accused persons after going through the FIR, Statements of witnesses and other documents as well as considering the facts and circumstances and due application of mind. During the cross examination conducted by the Ld. Defence Counsel, PW-29 has admitted the suggestion that in the FIR Ex. PW-33/A and in the complaint Ex. PW-7/A, the alleged demand is of Rs.1,40,000/- instead of Rs.1,50,000/- as mentioned in his Sanction Order Ex. PW-29/A. He has also volunteered that it would be a typing mistake.
83. It is true that Prosecuting Agency has sent the draft sanction to PW-29 Sh. Satish Golcha and he adopted it. But it cannot be said from this alone that he had not gone through the relevant papers in the matter. In his evidence he had clearly stated he has gone through the FIR, Statements of witnesses and other documents as well as considering the facts and circumstances and then he accorded the sanction 57 of 110 58 for prosecution of the accused persons. Moreover, when the Sanction Order itself is eloquent enough, then in such case only formal evidence has to be produced that the sanction was accorded by a Competent Person with due application of mind.
84. In view of the aforesaid discussion, I hold that the Sanction order Ex. PW-29/A is accorded by PW-29 after due application of mind hence the same is legal and valid.
CONSPIRACY, GRATIFICATION & CRIMINAL MISCONDUCT
85. Before adverting to the discussion of this case, it would be useful to have a look upon the relevant provisions of law. Charges against all the three accused persons i.e. accused no.1 Vipin Kumar Yadav, accused no.2 Manohar Lal and accused no.3 Ashok Kumar Dahiya were framed for the trial of offences punishable under Section 120-B of IPC and Section 13(2) read with Section 13 (1) (d) of Prevention of Corruption Act, 1988. Substantive charges under Section 7 of 58 of 110 59 PC Act / 120-B of IPC and 13 (2) read with Section 13 (1) (d) of Prevention of Corruption Act, 1988 / 120-B of IPC was also framed against accused no.2 Manohar Lal under Section 7 of PC Act / 120-B of IPC and 13 (2) read with Section 13(1) (d) of Prevention of Corruption Act, 1988 /120-B of IPC was also framed against accused no.3 Ashok Kumar Dahiya, which are reproduced as under:-
Section 120-A defines "Criminal Conspiracy", which reads as under:-
"120-A. Definition of criminal conspiracy - When two or more persons agree to do, or cause to be done -
(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy.
Provided that no agreement except an
agreement to commit an offence shall
amount to a criminal conspiracy unless
some act besides the agreement is done by one or more parties to such agreement in
59 of 110 60 pursuance thereof.
Explanation - It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object."
86. As per definition of criminal conspiracy U/s 120-A of Indian Penal Code when two or more persons agree to do, or cause to be done, (a) an illegal act; or (b) an act, which is not illegal by illegal means, such agreement is designated a criminal conspiracy. The essence of offence of conspiracy is the fact of combination by agreement. The agreement may be express or implied, or in part express and in part implied. The conspiracy arises and the offence is committed as soon as the agreement is made; and the offence continues to be committed so long as the combination persists, that is until the conspiratorial agreement is terminated by completion of its performance or by abandonment or frustration. The gist of offence of conspiracy is an agreement to break the law. In considering the question of criminal conspiracy, it is not 60 of 110 61 always possible to give affirmative evidence about the date of formation of conspiracy, about the persons who took part in the formation of conspiracy, about the object which the conspirators set before themselves as the object of conspiracy and about the manner in which the object of conspiracy was to be carried out. All this necessarily a matter of inference. The essence of criminal conspiracy is an agreement to do an illegal act. Such an agreement can be proved either by direct evidence or by circumstantial evidence or by both. It is not necessary that there should be express proof of the agreement, far from the acts and conduct of the parties, the agreement can be inferred.
87. On the point of criminal conspiracy, it has been held by the Hon'ble Supreme Court in Shiv Narayan Laxmi Narayan Joshi Vs State of Maharashtra, AIR 1980 SC 439, that a conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the same. The offence can be only proved largely from inference drawn from 61 of 110 62 acts or illegal omissions committed by the conspirators in pursuance of a common design.
88. The agreement to conspire may be inferred from circumstances, which raised a presumption of a concerted plan to carry out an unlawful design. A conspiracy need not be established by proof which actually brings the party together; but may be shown like any other fact, by circumstantial evidence.
89. In Kehar Singh and Others Vs State, AIR 1988 SC 1883, it is observed:
"Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on the evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon the circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial.
62 of 110 63 But the Court must require whether the two persons are independently pursuing the same end or they have come together to the pursuit of the unlawful object. The former does not render them conspirators, but the later does. It is however, essential that the offence of conspiracy required some kind of physical manifestation or agreement the express agreement however need not be proved. Nor mutual meetings of the two persons is necessary. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient."
"7. Public Servant taking gratification other then legal remuneration in respect of an official act. -
Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification, whatever, other than legal remuneration, as a motive or reward for 63 of 110 64 doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, Corporation or Government Company referred to in Clause
(c) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less then 6 months but which may extend to 5 years and shall also be liable to fine."
"13. Criminal Misconduct by a Public Servant.
(1) A Public servant is said to commit the offence of criminal misconduct;
(a) to (c) ..........
(d) if he, -
(i) by corrupt or illegal means, obtains for himself or for any other person any 64 of 110 65 valuable thing or pecuniary advantage;
or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or ***** (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less then one year but which may extend to 7 years and shall also be liable to fine."
90. On bare reading of the above provisions, it is clear that in order to bring home the charge under Section 120-B of IPC, the prosecution is required to prove that all the three accused persons in criminal conspiracy have demanded or 65 of 110 66 accepted the bribe money from the complainant. A conspiracy need not be established by proof which actually brings the party together, but may be shown like any other fact, by circumstantial evidence.
91. It is also clear that in order to bring home the charge under Section 7 of the PC Act, the Prosecution is required to prove that the accused persons accepted or obtained or attempted to obtain illegal gratification from any person and in order to establish the guilt of the accused under Section 13(2) read with Section 13 (1) (d) of the PC Act, 1988 also, the Prosecution is required to establish that the accused by corrupt or illegal means or by using his official position, obtained advantage or a valuable thing for himself or for any other person. Thus, it is obvious that two essential components to be proved for bringing home the charge under Section 7 & Section 13 (2) read with Section 13 (1) (d) of the PC Act, 1988, are the demand and acceptance of the bribe.
92. Now the crucial question to be determined is 66 of 110 67 whether or not the Prosecution has been able to establish either the demand or acceptance of illegal gratification by the accused persons. The material witnesses to prove demand are PW-7 i.e. the complainant Abdul Wazid, PW-27 Sharafat Sheikh and PW-32 Abdul Gaffar.
93. The complainant Abdul Wazid appearing before the court has been examined as PW-7, who has deposed that in the year 2003, he was residing at House No. A-8, Gali No. 11, Hastsal Road, Uttam Nagar, Delhi and at that time he had taken Guest House namely Syed Guest House of Sharafat Sheikh at Mirja Galib Road, Nizamuddin on rent. He has further deposed that on 21.02.2003 at about 7 AM, somebody gave ring in his house, which was situated on the first floor and he saw from window of his house and found two police Constables were standing on the side of the Gali. Then, he went downstairs. Both the Constables told him that they want to take search of his Esteem Car No. DL6C5891, which is parked in the corner of the gali. On this, he asked his son to 67 of 110 68 bring the key of the car from the house, who brought the same. Both the Constables took out the search of his said car and after locking his car, they returned the key. Thereafter, they directed him to open the bonnet of the car and he opened the same but nothing was found either in the bonnet or inside his car. He has further deposed that thereafter both the constables started looking surrounding his car and they found two small packets containing some white powder pasted under and inside the front bumper of his car and asked him as to what was that. On this, he replied that they have seen his car and bonnet as well and nothing was found and he cannot say about those small packets as to who has pasted the same inside the front bumper of the car. Then they told him that it was a smack and he may be sent to Jail for ten years. He behaved with them gently as he was working with Sharafat. On this, both the constable asked him to talk to Sharafat. He replied them that at that time Sharafat was in Bombay. In the meanwhile, both the Constables 68 of 110 69 telephone someone from their mobile phone and they told him that one of their Sahib was coming and he should talk to him. He has further deposed that meanwhile that person also came. While they were talking to each other, he found that one of them was Manohar and other was Ashok. He has identified the accused persons before the court. Thereafter, they took him upstairs in his house and he telephoned to Sharafat at Bombay from his landline and two accused persons namely Manohar and Vipin talked to Sharafat that they should be paid Rs.5,00,000/- and then they will leave him(complainant) otherwise they will register a case. He has further deposed that accused Manohar and Vipin continued to talk to each other and they decided to take Rs.2,00,000/- and told Sharafat that if he was sending Rs.2,00,000/- through his driver to them from his house. On this, accused Vipin asked him as to how much amount was lying in his house. On this, he opened the safe boxes of his children and found Rs.14,000/- available in his house and he paid the 69 of 110 70 same to accused Vipin. Thereafter, accused Vipin left his house leaving behind accused Manohar and accused Ashok with the directions that remaining amount should be paid to them.
94. PW-7 Abdul Wazid has also deposed that thereafter they took him in his car to Janak Puri, Near Uttam Nagar and they confined him in his car in the residential area. Meanwhile, they continued to talk to Sharafat and at that time Manohar and Ashok continued to sit with him in car. Sharafat could arrange only Rs.45,000/- and he sent the same in cash through his driver, who was directed to bring the same at the Red Light of C-1, Janak Puri, Opposite to Chanan Devi Hospital. Then Manohar and Ashok took him in his car to that place. As the driver who was bringing the money got late, they took him to the Police Post of Uttam Nagar East as they wanted to meet the call of the nature. Both Manohar and Ashok went to ease out from the car one by one. During this process, one official from the Police Post came out and 70 of 110 71 asked as to why they were there and they told him that they were waiting for some friend. Meanwhile a telephone of that driver was received by Manohar and Ashok that he was reaching at the Red Light and then they took him to that Red Light where the driver namely Gaffar of Sharafat gave a packet of GC Notes of Rs.45,000/- to Manohar and driver left in his Zen car. Thereafter, accused Ashok and Manohar took him to a restaurant at Uttam Nagar where they offered tea to him. Thereafter, accused Manohar and Ashok left the restaurant after taking tea with the direction to him to arrange Rs.1,40,000/- next day.
95. PW-7 Abdul Wazid has deposed that on the next day, he went to the office of Sharafat, who came from Bombay on the last night, and told him all the facts. They both decided to lodge complaint with the CBI and they went to CBI Office at CGO Complex, Lodhi Road, New Delhi, where they met one SP Mr. Jain and narrated him all the facts, who took his complaint dated 22.02.2003 Ex. PW-7/A in 71 of 110 72 writing, running into three pages. Thereafter an FIR was registered, which was marked to one Inspector, who arranged two witnesses. He has further deposed that when he was in CBI Office, a telephone call on the mobile phone of Sharafat Sheikh was received from accused Manohar and Sharafat told him that he will talk to him after five minutes. Then, the CBI Officer arranged one small tape recorder to record the voice of the accused. Again another telephone of accused Manohar was received on the mobile phone of Sharafat Sheikh and the conversation between Sharafat and Manohar was simultaneously recorded.
96. PW-7 Abdul Wazid has also deposed before the Court that he produced Rs.40,000/- consisting of 80 GC notes in the denomination of Rs.500/- each before the CBI Officer, who applied some powder on the same. The numbers of those GC notes were noted down on a paper. Thereafter, CBI officer gave a practical demonstration of the reaction of touching the powder treated notes with the 72 of 110 73 fingers and taking of wash of those fingers in another solution. One witness Chottey Lal was asked to touch those treated notes and then he was asked to wash his fingers in a solution prepared in a neat and cleat glass and on doing so, the solution turned pink and that solution was thrown away. Thereafter all the trap team members washed their hands with soaps and water in CBI Office. He has further deposed that CBI Officer had requisitioned two independent witnesses who were the government servants. Out of them, one was Chottey Lal and the name of the other person he does not remember. In CBI Office all the trap team members took mutual search of each other and his search was also taken to ensure that he was not carrying anything. Those treated GC notes were kept in a loose sheet of a paper and kept in his front shirt pocket with the directions to hand over the same to the accused persons on their demand. All the proceedings were reduced to writing. He has further deposed that it was decided that Sharafat Sheikh will not accompany them, 73 of 110 74 hence he left CBI Office for his residence.
97. He has further deposed that thereafter all the members of the CBI team including him and both the independent witnesses and CBI officers left CBI Office for his residence at Uttam Nagar, where accused persons were coming to receive the demanded amount from him. They reached there at about 1.30 PM on 22.02.2003. PW-7 has also received a telephone call on his mobile phone from accused no.2 Manohar Lal at 1.35 PM asking him as to whether he has reached his house. On this, he replied "yes". Trap Team members took suitable positions in or outside his house as well as on the terrace.
98. PW-7 has further deposed that at about 2.35 PM, he again received a call from accused Manohar Lal asking him to come to deliver the bribe amount at the shop of Flower Vendor, who sits opposite Chajju Ram Hospital, Uttam Nagar, which is at a distance of 1 or 1 ½ Kms. from his house and he was under the apprehension that accused persons 74 of 110 75 might arrest him if he go to that place, hence he did not go to that place.
99. PW-7 Abdul Wazid has further deposed that he again received a telephone call from accused Manohar Lal and he told him that they should come to his house to receive the bribe money as he does not want to come to that place. Then, at about 3 PM, he again received a call from accused Manohar Lal informing him that they will receive the amount later on and they will let him know the place in a day or two. He has also deposed that at about 3.45 PM, he again received a telephone from Manohar Lal and told him that they will not take money in installments and he should arrange complete amount of Rs.1,40,000/-.
100. He has identified his signatures on Handing Over Memo Ex. PW-8/A, Annexure to Handing Over Memo Ex. PW-8/B, Memo Ex. PW-8/C, Rough Transcription Telephonic Conversation Memo Ex. PW-8/D and Rough Transcription Ex. PW-8/E. 75 of 110 76
101. PW-7 Abdul Wazid has also gone through the Rough Transcription Ex. PW-8/E of the recorded telephone conversation between Manohar, him and Sharafat Sheikh, which was prepared from the cassette.
102. PW-27 Sharafat Sheikh has deposed that he is living in Delhi for the last 30 years in House no. 49, Basti Hazrat Nizamuddin, New Delhi and he is still running Guest House under the name and style of Sayed Guest House at Nizamuddin. In the year, 2003, Mohd. Abdul Wazid @ Masterji (PW-7) alongwith his son Shahzad were entrusted with the running of aforesaid Guest House. He has also deposed that he had also having a Bear Bar Restaurant under the name and style of M/s. Janu Bear Bar in Mumbai at S. B. Road, Malad and he used to visit there for the purpose of business frequently. He is also having his house at Mumbai. He has further deposed that on 21.02.2003 when he was at his house in Mumbai as he had gone there for the purpose of his hotel business, he received telephone call at 76 of 110 77 about 8 to 8.30 AM on his landline phone of his house from Abdul Wazid, who was frightened and stated to him that some police officials from PS Uttam Nagar were arrived in his house and they were stating that some smack is found from his (PW-7) car and they were threatening to implicate him (PW-7) in false case if he has not given Rs.5,00,000/- to them. Therefore, Abdul Wazid requested him to give Rs.5 lacs for the purpose of giving the same to the police officers and he also made him to talk with those police persons who were threatening him (PW-7). On this, he talked those police officers on phone and requested them on reduce the demanded amount and finally police officers were agreed to take Rs.2,00,000/- from Abdul Wazid. He has further deposed that he told those police persons that at this stage, he was not able to arrange the whole amount of Rs.2 lacs in lump sum but at this stage, he was having Rs.45,000/- at his residence in Delhi, which were given to them through his driver Gaffar. He has also deposed that by that time, police 77 of 110 78 persons had already taken Rs.14,000/- from the complainant i.e. PW-7.
103. PW-27 has further deposed that after the setting of amount of Rs.2 lacs and sending of Rs.45,000/- through his driver Gaffar, a telephone call, after sometime of aforesaid settlement, was received from the side of the same police persons and one of their colleague threatened him of dire consequences if money is not given or if any mischief in giving the aforesaid amount to them. On this, he told the caller that his driver Abdul Gaffar will be coming soon to hand over the money of Rs.45,000/- to them. At about 11.30 or 12 noon on the same i.e. 21.02.2003, his driver Abdul Gaffar telephonically informed him that amount of Rs.45,000/- has been delivered to the person as instructed by PW-7 Abdul Wazid. Thereafter, he rushed back to Delhi in the night of 21.02.2003 by flight and he called PW-7 Abdul Wazid to meet him at his Sayeed Guest House at Nizamuddin in the morning of 22.02.2003 where they decided that they should 78 of 110 79 make complaint to CBI.
104. PW-27 has further deposed that on 22.02.2003 at about 10.15 /10.30 AM, they both reached CBI office where PW-7 wrote a complaint Ex. PW-7/A and he also signed the same. He has deposed the same facts as deposed by PW-7 Abdul Wazid regarding the handing over of Rs.40,000/- to the CBI and pre-trap proceedings in the CBI office.
105. PW-27 has also deposed that on 24.02.2003, he again went to CBI office alongwith PW-7 Abdul Wazid where two witnesses were already present. The transcription of conversation recorded on 22.02.2003 was made after playing the cassette in the presence of the witnesses and he confirmed that this is the same voice to which he talked on 21.02.2003, when he was in Mumbai.
106. He has also deposed that again on 28.02.2003, he went to CBI Office alongwith PW-7 Abdul Wazid. He called on the mobile number bearing initial 9818.... of accused Manohar Lal on the directions of CBI Inspector, but no 79 of 110 80 conversation took place as the person from the other side cut the phone on hearing his voice.
107. He has identified his signatures on Ex. PW-8/A, Ex. PW-8/B, Ex. PW-8/C, Ex. PW-8/D, Ex. PW-8/E, Ex. PW-27/A and on Ex. PW-14/A. He has also identified his voice as well as the voice of accused Manohar Lal in cassette Ex. P-1 (Q-1).
108. PW-32 Abdul Gaffar has deposed that he used to stay in the Sayeed Guest House of Sharafat Sheikh at Nizamuddin during the year 2003 and he used to take children of Sharafat Sheikh by car from house to school and back. He has further deposed that on 20.02.2003 at about 10.30-11.00 AM a message was received to him from the guest house that the wife of Sharafat and one Hannan has called him in the office and then he reached the office in Nizamuddin where he met with the wife of PW-27 Sharafat Sheikh and Hannan. The wife of PW-27 gave him a mobile and cash of Rs.45,000/- in the denomination of Rs.50/- each 80 of 110 81 in 9 bundles and instructed him to go to Uttam Nagar by car Zen bearing registration no. 0142. She further told him that he will also get a call on the mobile and instructed him to proceed to Uttam Nagar. He received a call on the mobile phone provided to him by the wife of PW-27 and he informed him that he has brought the money. Thereafter, he has reached at the fixed spot. He has further deposed that from the Esteem Car, PW-7 and man came out and both sit at the rear seat of his car and he handed over Rs.45,000/- to accused Vipin Kumar Yadav, who handed over the same to the other person sitting in the car and asked him to count the money as earlier also we have received less money. He has further deposed that thereafter they reached a tea shop for taking tea, where a call was received by accused Vipin on his mobile and he confirmed that he had received the money. Thereafter he come back alone to Nizamuddin by car leaving behind all the three accused persons.
109. On the other hand, Ld. Counsel for the accused 81 of 110 82 persons argued that there are contradictions and improvements in the statements of the witnesses. It has been submitted by the Ld. Defence counsel that whatever deposed by PW-7 Abdul Wazid in his examination in chief before the Court against accused persons, most of it were material improvements as those were not recorded in his previous statement recorded under Section 161 Cr. P. C. Ex. PW-7/DA as well as there are material contradictions, improvements and omissions in the statements of the witnesses.
110. Ld. Defence counsel has drawn the attention of the Court on the cross examination of PW-7 which was conducted on 28.04.2009. PW-7 during cross examination has deposed that "he told the IO that he was innocent and meanwhile both the constables telephone to someone from their mobile phone and they told him that one of their sahib was coming and meanwhile that person also came but IO has not recorded. It is also not recorded in his statement 82 of 110 83 recorded under Section 161 Cr. P. C. that they took him upstairs in his house and he telephoned to Sharafat Sheikh from his landline phone at Bombay and accused Vipin and Manohar talked to Sharafat Sheikh on his landline phone that they should be paid 5 petis otherwise they will register a case. The complainant i.e. PW-7 Abdul Wazid during cross examination also admitted the suggestion that the name and role of the accused Vipin Kumar Yadav is not reflected in Ex. PW-7/DA. During cross examination, he has further deposed that he has not stated to the IO that he had given Rs.14,000/- by breaking the gullak(safe box). He has further deposed that he has not stated to the IO that accused Vipin asked him as to how much amount was lying in his house and he told him that whatever amount was lying in his house, he(PW-7) will pay him (accused no.1 Vipin Kumar Yadav). He has also deposed that he has not stated to the IO at the time of recording of his statement under Section 161 Cr. P. C. that he paid Rs.14,000/- to accused Vipin Kumar Yadav.
83 of 110 84
111. Ld. Defence counsel for accused no.1 Vipin Kumar Yadav has further argued that that the complainant PW-7 has made the material improvements while deposing before the Court and as such no facts have been mentioned in his complaint Ex. PW-7/A.
112. PW-7 Abdul Wazid during his cross examination conducted by Ld. Defence Counsel on 02.09.2009, has deposed that he did not write the name or description of the persons who were demanding bribe from him in his Complaint Ex. PW-7/A. He knows the name of accused Ashok and Manohar but he did not tell the name and description of any accused to the CBI officers or to the punch witnesses or to other witnesses or even to Sharafat Sheikh. He has also admitted the suggestion that he has not mention the arrival and departure of accused Vipin Kumar Yadav in his complaint. He has also admitted that he did not mention demand by accused Vipin Kumar Yadav in his complaint Ex. PW-7/A. 84 of 110 85
113. PW-7 Abdul Wazid during his cross examination has further deposed that he cannot tell the number of telephone on which he received the telephone call from Sharafat from Mumbai.
114. PW-7 during his cross examination conducted on 10.12.2009, has admitted that in his complaint Ex. PW-7/A, he made the complaint against the two persons only and there is no specific name mentioned in the complaint. He has further admitted during his cross examination that he has not mentioned in his complaint Ex. PW-7/A that two persons had made call for calling to third person (as a sahib).
115. It has been argued by the Ld. Defence Counsel that accused persons have been falsely implicated in the present case by the active connivance of PW-7 Abdul Wazid alongwith his master PW-27 Sharafat Sheikh.
116. It has been further argued by the Ld. Defence Counsel that PW-7 Abdul Wazid has admitted during his cross examination conducted on 17.09.2010 that accused 85 of 110 86 Ashok had not played any role in the incident nor demanded any money from him.
117. Ld. Defence Counsel has pointed out that PW-7 has deposed during his cross examination that he had stated to the police in his statement Ex. PW-7/DA and complaint Ex. PW-7/A that myself, Ashok and Manohar got down from his Esteem Car and got in the car brought by driver of Sharafat. But the same facts are not mentioned in Ex. PW-7/A and Ex. PW-7/DA. Hence he was confronted with Ex. PW-7/DA and Ex. PW-7/A where it is not so recorded.
118. It has been submitted by the Ld. Defence Counsel that PW-27 Sharafat Sheikh has given different versions on a similar aspect. He has drawn the attention of cross examination of PW-27 Sharafat Sheikh conducted on 02.01.2012, he has stated that he does not remember if he had a talk with any police official on 21.02.2003. He has also deposed that he was ready to make payment to the police as PW-7 Abdul Wazid was working for him and was operating 86 of 110 87 his Guest House. He has further stated that he himself talk to police persons that he will pay Rs.2 lacs.
119. Ld. Defence Counsel has also argued that PW-32 Abdul Gaffar has deposed at the instance of PW-7 and PW-27 only to falsely implicate the accused persons. He has pointed out that during the examination in chief, PW-32 Abdul Gaffar has deposed that he handed over Rs.45,000/- which was wrapped in the paper, to accused Vipin Kumar Yadav. But he has identified accused Vipin as accused Ashok Kumar Dahiya before the Court and accused Ashok Kumar Dahiya as accused Manohar Lal before the Court.
120. In view of the above, it is clear that there are material contradictions in the statements of the witnesses. PW-32 Abdul Gaffar has not identified the accused Vipin Kumar Yadav correctly before the Court. He has identified accused Vipin as accused Ashok Kumar Dahiya and accused Ashok Kumar Dahiya as accused Manohar Lal before the Court. Even the Prosecution has not declared PW-32 Abdul 87 of 110 88 Gaffar hostile since he resiled from his previous statement whereby he has stated that he handed over Rs.45,000/- to accused Manohar Lal.
121. Ld. Defence Counsel has submitted that PW-7 Abdul Wazid has deposed falsely regarding the call received from Sharafat Sheikh from Bombay. I have gone through the testimony of PW-7, who has deposed that thereafter accused Manohar and Ashok took him in his car to Janak Puri, Near Uttam Nagar and they confined him in his car in the residential area. Meanwhile, they continued to talk to Sharafat and at that time Manohar and Ashok continued to sit with him in car. Sharafat could arrange only Rs.45,000/- and he sent the same in cash through his driver, who was directed to bring the same at the Red Light of C-1, Janak Puri, Opposite to Chanan Devi Hospital. Then Manohar and Ashok took him in his car to that place.
122. I have also gone through the CDR's dated 21.02.2003 of the mobile no. 9891314422 Ex. PW-11/A 88 of 110 89 allegedly used by the complainant and mobile no. 9818045478 Ex. PW-10/G allegedly used by the accused Manohar Lal, there is no call from Bombay received by the complainant and accused Manohar Lal from PW-27 Sharafat Sheikh.
123. Ld. PP has submitted that on 21.02.2003, four calls were made from mobile no. 981114508 (Shehzad son of PW-7 Abdul Wazid) to landline number (022)28864327 at Bombay to PW-27 Sharafat Sheikh at 8.42 am (23 sec.), 8.43 am (61 sec.), 8.47 am (214 sec.) and 9.05 am (119 sec.) from Uttam Nagar to struck the deal with Sharafat Sheikh and Abdul Wazid, his son Mohd. Sehzad and accused persons had talked with Sharafat Sheikh.
124. To prove the version, Prosecution has examined PW-11 Ms. Seema Nair, Assistant Manager, Legal, Idea Cellular Ltd., who has identified the signatures of his colleague Sh. Umesh Kalra on the letter dated 14.03.2003 alongwith annexures Ex. PW-11/A regarding the complete 89 of 110 90 data of outgoing and incoming calls of mobile no. 9891314422 for the period from 15.02.2003 to 07.03.2003. She has also identified the signatures of Sh. Umesh Kalra on the letter dated 10.05.2003 Ex. PW-11/B vide which site addresses of 4 locations were sent to CBI. She has also identified the signatures of Sh. Umesh Kalra on the letter dated 20.06.2003 Ex. PW-11/C vide which call details record pertaining to mobile no. 9891114508 for the date 21.02.2003 was sent to CBI.
125. On the other hand, it has been submitted by the Ld. Defence Counsel that the accused persons have been falsely implicated in the present case by making concocted story. Ld. Defence counsel has further submitted that no witness has deposed that the complainant and accused persons had talked to PW-27 Sharafat Sheikh by making calls from the mobile phone of Shahzad i.e. 9891114508 to the landline phone no. 022-28864327 at Bombay on 21.02.2003.
126. I have gone through the testimonies of the 90 of 110 91 witnesses. PW-7 Abdul Wazid during his examination in chief has deposed that on 21.02.2003, he made call from his landline to PW-27 Sharafat Sheikh at Bombay and the accused persons had talked to Sharafat Sheikh through his landline phone. On the other hand, PW-7 Abdul Wazid has mentioned in his complaint Ex. PW-7/A that on 21.02.2003 he had talked to PW-27 Sharafat Sheikh on his mobile at Bombay and accused persons got talked with him (PW-27). Moreover, the fact regarding the talk with PW-27 Sharafat Sheikh at Bombay on his landline was not recorded in his statement under Section 161 Cr. P. C.
127. PW-27 Sharafat Sheikh during his cross examination conducted on 15.12.2011, has stated that he does not remember the telephone number of landline. He has further deposed that he had not given the number of his mobile registered in his name at Delhi to CBI. He had also not given his landline number of Mumbai to police.
128. PW-27 Sharafat Sheikh during his cross 91 of 110 92 examination conducted on 02.01.2012, has stated that on 21.02.2003, he does not remember if he had a talk with any police official. He has further deposed that he had many acquaintances in Delhi Police.
129. From the above, it is clear that there is no evidence on record that phone number 022-28864327 was installed in the name and address of PW-27 Sharafat Sheikh at Bombay. Even there is no evidence on record that the mobile no. 9891114508 was subscribed to Mohd. Sehzad or that he was using the said mobile on 21.02.2003. Prosecution has also failed to examine PW-Mohd. Sehzad. Moreover, the call details records of mobile phones are not admissible in evidence as no certificate under Section 65B of Evidence Act was given by the Cellular Companies.
130. Ld. PP has further submitted that on 21.02.2003, PW-7 Abdul Wazid (Mobile No. 9891314422) was in Janakpuri and Uttam Nagar Area between 10.00 AM to 11.48 AM and at 11.48 AM, received call from PW-32 Gaffar 92 of 110 93 (Mobile No. 9810195190) lasting for 23 seconds in order to know exact place as he was already reaching Janak Puri Red Light as per directions. After making payment of Rs.45,000/- to the two accused persons, PW-32 Gaffar also received two calls from PW-27 Sharafat Sheikh (Mobile No. 9810822253) at 12.10.20 and 12.13.48 for 18 and 23 seconds respectively. Meanwhile, accused Manohar Lal on his mobile no. 9818045478 received call from SI Vipin Kumar Yadav at 11.54.55 for 38 seconds and thereafter accused Manohar Lal made a call to SI Vipin Kumar Yadav at 12.06.01 for 101 sec. respectively.
131. On the other hand, it has been submitted by the Ld. Defence counsel that on 21.02.2003, accused no.1 Vipin Kumar Yadav was not present between 10.00 to 11.48 AM as he left the Police Station Uttam Nagar at about 9.15 AM for attending the Bail Matter in Case FIR No. 1032/2002 under Section 307/325 of IPC. Ld. Defence Counsel has drawn the attention of the Court on Rozmancha of PS Uttam Nagar Ex.
93 of 110 94 DW-1/A.
132. In regard to the presence of accused Manohar Lal, it has been submitted by the Ld. Defence Counsel that accused Manohar Lal was not present with the complainant on 21.02.2003 in the afternoon. Ld. Defence counsel has drawn the attention of the Court on Ex. PW-13/D-1 i.e. DD No. 19 dated 08.05.2003, wherein it has been mentioned by PW-13 SI Tej Pal that he appeared before the Inspector Alok Kumar, AC Branch, CBI, Lodhi Colony, Delhi after attending the Bail Matter in the Hon'ble High Court of Delhi. On interrogation, he told to the Inspector Alok Kumar that in the evening of about 10-11 PM on 21st - 22nd February, he has seen one constable who was sitting in a car. Ld. Defence Counsel has submitted that there are contradictions in the statement of PW-13 SI Tej Pal as well as the testimony of PW-7 Abdul Wazid. On the one hand, PW-13 has stated that he has seen accused Manohar Lal in the evening of 21st and 22nd of February at about 10-11 PM. On the other hand, PW-7 Abdul 94 of 110 95 Wazid has stated before the Court that accused Manohar and accused Ashok took him in his car at the Red Light of C-1, Janakpuri, Opposite to Chanan Devi Hospital. It takes about five minutes to reach that place. He has further deposed that as the driver, who was bringing the money got late, they took him to the Police Post of Uttam Nagar East as they wanted to meet the call of the nature and thereafter, they both went to ease out from the car one by one. During this process, one police official from that Police Post came out and asked as to why they were there and they told him that they were waiting for some friend.
133. Ld. Defence Counsel has further drawn the attention of the Court on the testimony of PW-27 Sharafat Sheikh, who has deposed that on 21.02.2003, at about 11.30 or 12 noon, his driver PW-32 Abdul Gaffar telephonically informed him that amount of Rs.45,000/- has been delivered to the person as instructed by PW-7 Abdul Wazid.
134. Ld. Defence Counsel to prove his version has drawn 95 of 110 96 the attention of the court on the testimony of DW-1 HC Raj Kumar who has produced the Original Roznamcha containing DD No. 19 dated 08.05.2003 of arrival / intimation of SI Tej Pal, PP Uttam Nagar Ex. DW-1/D wherein it has been mentioned by PW-13 SI Tej Pal that he appeared before the Inspector Alok Kumar, AC Branch, CBI, Lodhi Colony, Delhi after attending the Bail Matter in the Hon'ble High Court of Delhi. On interrogation, he told to the Inspector Alok Kumar that in the evening of about 10-11 PM on 21st - 22nd February, he has seen one constable who was sitting in a car.
135. Perusal of the testimonies of the witnesses, it is clear that there are material contradictions which goes to the roots of the case of the prosecution.
136. Ld. PP has also submitted that during the investigation, it revealed that mobile no. 9819045478 held by accused Manohar Lal remained in Uttam Nagar / Janak Puri area since 5.30 AM till 12.45 PM on 21.02.2003 at different 96 of 110 97 points. Accused Manohar Lal made call at 8:20:01, 8:44:11 and 12:04:23 to accused/SI Vipin on his cell no. 9810086792 and later on received call from accused Vipin at 8:52:52 and 11:53:18, who was present in Uttam Nagar Area till 9.46 AM and later on at Tis Hazari Court area.
137. Ld. PP has further argued that according to the record of Airtel Company, both the telephone nos. of Gaffar i.e. 9810195190 and accused Manohar Lal were positioned near the same Airtel Tower on 21.02.2003 when the money was handed over by Gaffar to accused Manohar Lal.
138. To prove its version, Prosecution has examined PW-10 R. K. Singh, Nodal Officer, who has identified the signatures of Sh. Bakshi on the Letter Ex. PW-10/A, annexures Ex. PW-10/B of Ex. PW-10/A. Annexures Ex. PW-10/B are related to the Location Area Coverage (SITE ID Chart) which describes the location of the tower and the subscriber / user as well as the serial number of tower. He has also identified the signatures of Captain Rakesh Bakshi 97 of 110 98 on the Customer application Ex. PW-10/C of Mobile No. 9810086792 in the name of accused Vipin Kumar Yadav. He has also identified the signatures of Sh. Bakshi on the application Ex. PW-10/E regarding mobile no. 9818045478 in the name of Sh. Anil Kumar. He has also identified the signatures of Sh. Bakshi on the call details of mobile no. 9818045478 w.e.f. 21.02.2003 to 28.02.2003 Ex. PW-10/G, on the call details of mobile no. 9810086792 w.e.f. 21.02.2003 to 02.04.2003 Ex. PW-10/H, on the call details of mobile no. 9810822253 w.e.f. 20.02.2002 to 23.02.2003 Ex. PW-10/J, on the call details of mobile no. 9810707656 w.e.f. 28.02.2003 to 22.03.2003 Ex. PW-10/K and on the call details of mobile no. 9810195190 w.e.f. 21.02.2003 to 21.02.2003 Ex. PW-10/L.
139. I see no force in the submissions of the Ld. PP regarding the above facts because the call details records of mobile phones are not admissible in evidence as the mandatory conditions as laid down in Section 65B(2) of the 98 of 110 99 Evidence Act, 1872 have not been followed by the Cellular Companies. Moreover, there is no conversation recording of 21.02.2003 has been produced by the Prosecution.
140. Ld. PP has submitted that investigation revealed that on 22.02.2003, PW-27 Sharafat Sheikh received three calls at 12:02:15 (40 sec.), 12:03:10 (452 sec.) and 12:06:06 (279 sec.) on his mobile no. 9810822253 by the suspect (accused Manohar Lal) from a PCO no. 25356168 at Uttam Nagar.
141. On the other hand, Ld. Defence Counsel has submitted that accused Manohar Lal has departed for official duty at 12 PM (day) vide DD No. 17B Ex. DW-1/C (colly) alongwith ASI Gandharv Singh of PS Naraouli, Mathura (UP) for the execution of a warrant under Section 83 Cr. P. C. against Devender Parmar in FIR No. 272/01, under Section 2,3 Gangster Act. Accused Manohar Lal came back alongwith UP Police Staff to PS Uttam Nagar at 4.30 PM vide DD No. 25B dated 22.02.2003 Ex. DW-1/C (colly) after the execution 99 of 110 100 of the said warrant.
142. Ld. Defence Counsel has drawn the attention of the court on the testimony of DW-1 HC Raj Kumar, who has brought the arrival and departure of accused no. 2 Manohar Lal which were recorded in Roznamcha B vide DD No. 17B and DD No. 25 B of dated 22.02.2003 Ex. DW-1/C (colly.) respectively.
143. Ld. Defence Counsel has also drawn the attention of the Court on the testimony of DW-8 SI Gandharv Singh, who has deposed that on 22.02.2003, he alongwith Constable Ajay Pal came to PS Uttam Nagar, New Delhi, regarding case titled as State Vs Devender Parmar having FIR No. 272/01 of PS Naraouli, under Section 2/3 Gangster Act. He has further deposed that he made his arrival and departure for execution of warrant of Devender Parmar, who is accused in FIR No. 272/01 of PS Naraouli, under Section 83 Cr. P. C. at A-100, Maharani Enclave, Uttam Nagar, Delhi alongwith constable/accused Manohar Lal of PS Uttam Nagar, vide DD 100 of 110 101 No. 17B dated 22.02.2003 at 12 Noon Ex. DW-1/C(colly.). He has further deposed that he came back alongwith constable Ajay Pal and constable/accused Manohar Lal at PS Uttam Nagar after execution of the said warrant on the same day i.e. on 22.02.2003 at about 4.30 PM vide DD No. 25B Ex. DW-1/C (colly). He has also deposed that accused Manohar Lal remained with him from 12 Noon till 4.30 PM on 22.02.2003 and assisted him in execution of the aforesaid warrant.
144. From the above, it is clear that the accused Manohar Lal remained with DW-8 SI Gandharv Singh from 12 Noon till 4.30 PM on 22.02.2003 for execution of the warrant. Moreover, Prosecution has failed to produce the owner of the PCO Booth from which PW-27 Sharafat Sheikh has received the call on his mobile phone on 22.02.2003.
145. Ld. PP has argued that the accused persons have deliberately refused to participate in TIP Proceedings. To prove its version, Prosecution has examined PW-28 Sh. P. K. 101 of 110 102 Jain and PW-30 Sh. A. K. Kuhar, both were the then Ld. Metropolitan Magistrate, Tis Hazari Courts, Delhi.
146. On the other hand, Ld. Defence Counsel have argued that the accused persons after arrest were produced before the Court in un-mufled faces.
147. I have gone through the TIP Proceedings Ex. PW-28/A, in respect of accused Vipin Kumar Yadav and accused Manohar Lal, wherein both have stated that they were arrested by the CBI on 02.04.2003 and since then they were in unmuffled face and during that period. CBI officials have shown their faces to number of persons. Moreover, PW-33 Inspector Alok Kumar deposed during his cross examination conducted by the accused persons that he was not sure if during the custody of the accused persons , they were confronted with the complainant, his son and Sharafat Sheikh etc. face to face. He has also deposed that he does not remember if he shown the accused persons to the witnesses during investigation. He has further deposed that 102 of 110 103 when the accused persons namely accused Vipin and accused Manohar were produced in the court first time in this case, they were not in muffled face.
148. I have also gone through the TIP Proceedings Ex. PW-30/A in respect of accused Ashok Kumar Dahiya, wherein he has stated that he has been shown to the witness and his photograph was also taken at CGO Complex, Lodhi Colony and further moved in the area for 8/9 months, so all people know him by face.
149. From the above, it is clear that the accused persons have refused to participate in the TIP Proceedings as they were shown to the witnesses and they remained unmuffled face after their arrest.
150. Ld. PP has further argued that the cassette Q-1 contains the voice of accused Manohar Lal. To prove its version, Prosecution has examined PW-1 Deepak Tanwar, who has deposed that the voice Mark Ex. Q-1 is the voice of same person whose specimen voice is Mark Ex. S-2 103 of 110 104 Manohar Lal beyond reasonable doubts.
151. On the other hand, Ld. Defence Counsel has argued that none of the documents i.e. Rough Transcription Memo Ex. PW-8/D and Rough Transcription Ex. PW-8/E shows that the recorded conversation contain the voice of accused Manohar Lal nor it was so recorded in the statement of the witnesses recorded Under Section 161 Cr. P. C.
152. Ld. Defence Counsel has also submitted that there was edition or deletion in the said recorded conversation. He has drawn the attention of the Court on the testimony of PW-7 Abdul Wazid who deposed that he has gone through the Rough Transcription Ex. PW-8/E of the recorded telephonic conversation between Manohar, him and Sharafat Sheikh and it is the transcription which was prepared from the said recorded telephonic conversation. It was prepared from the cassette.
153. Ld. Defence Counsel has further put the stress on the testimony of Independent witness i.e. PW-8 Ram Kumar, 104 of 110 105 who has deposed during his cross examination that the cassette of the recording which was recorded on 22.02.2003 was sealed on 24.02.2003. He has further deposed that when the cassette was sealed on 24.02.2003 except him, there was no other public person. He has also deposed that the recording was not transferred in a tape in his presence. He has deposed that on 24.02.2003 only cassette was sealed and probably one memo was signed by him.
154. Ld. Defence Counsel has further drawn the attention of the Court on the testimony of PW-27 Sharafat Sheikh, who has deposed during his cross examination that he went to the office of CBI on 24th February, 2013 and whatever proceedings were carried out on 22.02.2003 i.e. noting down the numbers of GC Notes recording and other proceedings were got signed from him on 24.02.2003 in the office of CBI.
155. Ld. Defence Counsel has also argued that the complainant i.e. PW-7 Abdul Wazid and PW-27 Sharafat Sheikh have identified the voice of accused Manohar Lal first 105 of 110 106 time before the Court after 5-6 years from the date of recording, which is not a reliable piece of evidence. He has placed reliance on the judgment Nilesh Dinkar Paradkar Vs State of Maharashtra, (2011) 4SCC143, passed by the Hon'ble Supreme Court.
156. In view of the above, it is clear that the cassette in which the conversation recorded on 22.02.2003 was not sealed on the same day and the same was sealed on 24.02.2003 instead of 22.02.2003. The submissions of the Ld. Defence Counsel regarding the edition or deletion in the recorded conversation cannot be ruled out.
157. Ld. Defence Counsel has submitted that the complainant i.e. PW-7 Abdul Wazid and PW-27 Sharafat Sheikh have criminal background, hence their testimonies cannot be relied upon unless there is corroboration on the material points from Independent witnesses. Ld. Defence Counsel has submitted that PW-7 Abdul Wazid during his cross examination conducted on 05.04.2010 has admitted 106 of 110 107 that he has been charge sheeted in column no. 2in FIR No. 351/99 under Section 364/325/506 of IPC, PS Nizamuddin as co-accused alongwith PW-27 Sharafat Sheikh and Shoraib Sheikh. Ld. Defence Counsel has further submitted that PW-7 Abdul Wazid was produced from Judicial Custody for recording his evidence as complainant in the present case. At that time, he was in JC in FIR No. 464/05 under Section 21 NDPS Act and FIR No. 465/05 under Section 3,4 MOCOCA Act, PS Nizamuddin.
158. Ld. Defence Counsel has further submitted that PW-27 Sharafat Sheikh has admitted during his cross examination conducted on 15.12.2011, that he is declared B.C. of Police Station Nizamuddin and more than 30-31 cases were registered against him.
159. In view of the above, it is clear that PW-7 and PW-27 have criminal background, hence their testimonies cannot be relied upon unless there is corroboration on the material points from independent witnesses. Reliance is 107 of 110 108 placed upon the Judgment Satpaul Vs. Delhi Administration AIR 1976 SC 294., wherein it has been held:-
"it is true that there is no absolute rule that the evidence of an interested witness cannot be accepted without corroboration. But where the witnesses have poor moral fibre and have to discredit a heavy load of bad antecedents which indicates their having a possible motive to harm the accused who was an obstacle in the way of their immoral activities, it would be hazardous to accept their testimony in the absence of corroboration on crucial points from independent sources."
160. From the above, it is clear that the version of the complainant be it in his complaint Ex. PW-7/A or his statement under section 161 Cr. P.C. Ex. PW-7/DA or his testimony on oath during the course of trial clearly suggests that he has been changing his stand at every stage and he is 108 of 110 109 blowing hot and cold in the same breath. The Prosecution has also not examined the witness PW-Shehzad i.e. son of the Complainant PW-7 Abdul Wazid, whose mobile phone no. 9891114508 was used on 21.02.2003 for making four calls at Bombay landline no.(022)-28864327 of PW-27 Sharafat Sheikh between 8.30 AM to 9.15 AM. Moreover, the testimonies of PW-7 Abdul Wazid, PW-27 Sharafat Sheikh and PW-32 Abdul Gaffar contain material contradictions which goes to the roots of the case. The possibility of edition or deletion in the recorded conversation dated 22.02.2003 cannot be ruled out. It is also pertinent to mention here that the Complainant i.e. PW-7 Abdul Wazid and PW-27 Sharafat Sheikh have criminal background, hence their testimonies cannot be relied upon unless there is corroboration on the material points from independent witnesses.
161. In view of the forgoing discussions, I am of the opinion that the Prosecution has not succeeded in proving the commission of the offences punishable under Section 109 of 110 110 120-B of IPC read with Section 13(2) read with Section 13(1)
(d) of the PC Act against accused no.1 Vipin Kumar Yadav, accused no.2 Manohar Lal and accused no. 3 Ashok Kumar Dahiya. Prosecution has also not succeeded in proving the commission of the offences punishable under Section 7 of the PC Act / 120B of IPC and under Section 13 (2) read with Section 13 (1) (d) of the PC Act / 120B of IPC against accused no.2 Manohar Lal and accused no.3 Ashok Kumar Dahiya.
162. Accused no.1 Vipin Kumar Yadav, accused no.2 Manohar Lal and accused no. 3 Ashok Kumar Dahiya are acquitted from the charges levelled against them. ANNOUNCED IN THE OPEN COURT TODAY i.e. ON 21.09.2013.
(N. K. SHARMA) SPECIAL JUDGE (PC ACT)(CBI):02 DELHI.
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