Delhi District Court
Rao Khotkar vs . Kailash Kushan Rao Gorantyal And Ors., on 3 March, 2021
1
IN THE COURT OF AMIT KUMAR, SPECIAL JUDGE,
P.C. ACT (CBI) - 04, ROUSE AVENUE DISTRICT COURTS,
NEW DELHI
CNR No. DLCT01-000522-2019
CC No. 117/2019
R.C. No. 39 (A)/12
CENTRAL BUREAU OF INVESTIGATION
VERSUS
SH. DINESH DAHIYA
S/O SH. RAGHUBIR SINGH
R/O FLAT NO. 69, JAGDAMBA APARTMENT,
SECTOR-13, ROHINI, DELHI-110085.
Date of Institution :31.01.2013
Date of Arguments :15.02.2021
Date of Judgment :03.03.2021
JUDGMENT
1. The present FIR pertaining to demand of illegal gratification by accused Dinesh Dahiya who at the relevant time was working as Sub Inspector, Crime Branch, Delhi Police, was registered on 30.10.2012 on the complaint dated 29.10.2012 of one Naresh Malik,(complainant here in) on the allegations that accused posted in Crime Branch, Delhi Police was investigating FIR No.233/2012, Crime Branch, Delhi Police, Prashant Vihar and has arrested the brother in law (wife's brother) of the complainant namely Gagan Khatri in that case and had threatened to implicate the other brother in law of the 2 complainant namely Deepak Khatri in the said FIR and in lieu thereof he made a demand of Rs.15 lacs as bribe amount. The verification proceedings on this complaint was done on 29.10.2012 in the presence of one independent witness Bal Krishan and the trap proceedings were conducted on 30.10.2012. As per the prosecution case, the accused was caught red handed while accepting Rs. 3 lacs as part of bribe in the presence of independent witnesses.
2. After investigation, the present charge sheet was filed on 21.12.2012 and my Ld. Predecessor took cognizance of the offences punishable under Section 7 read with Section 13(1)
(d) and 13(2) of PC Act on 19.02.2013 and in pursuance thereof charges against the accused were framed on 19.09.2014.
3. To prove its case, prosecution examined 14 witnesses followed by the statement of accused under Section 313 Cr. P. C. and examination of 09 defence witnesses.
4. The Prosecution witnesses can be sub-divided into three categories. The FIRST category being the technical/formal witnesses.
(I) Technical/Formal witnesses
5. PW-1 is Mr. V. B. Ramtake, Senior Scientific Officer, Grade I, (Chemistry), CFSL, New Delhi. He has deposed that on 09.11.2012, three sealed bottles containing RHW, LHW and 3 DBW with seal impression CBI, ACB, ND, 49/2012 intact were received in CFSL, New Delhi vide letter dated 05.11.2012. He has prepared the Report Ex. PW-1/A (D-16) regarding the chemical analysis of the contents of these three sealed bottles. He has stated that the chemical examination of the contents of said bottles gave positive test for the presence of Phenolphthalein and he also found Sodium Carbonate in the washes.
6. In the cross examination, he stated that the case property was sent to his office vide letter dated 05.11.2012 and was received on 09.11.2012 though the distance between the office of CBI and his office is about half km. He further admitted that he did not give any separate certificate that exhibits were received in sealed conditions or that the seals were found intact and not tampered with. Though he volunteered that it was mentioned in his report. He also admitted that even in his report it is not mentioned that exhibits were not tampered with. He however denied the suggestion that his report is false and given at the instance of the CBI.
7. PW-3 is Sh. Jyotish Maharana, Nodal Officer in Company namely Sistma Shyam Tele Services Ltd. (MTS), New Delhi. He produced the record pertaining to mobile no. 8459032314 issued in the name of one Sandeep Singh along with the CDRs of this mobile phone for the period 26.10.2012 to 01.11.2012.
48. In the cross examination, he stated that he took out the CDRs from the system on 20.11.2012. The main server of the company is at the Noida Office as well as Chennai Office. To the court question as to whether he can furnish the particulars of the devices involved in reproductions of the CDRs, the witness failed to give the reply as he clarified that it is maintained by Technical Department.
9. PW-4 is Sh. Pawan Singh, Nodal Officer of M/s. Idea Cellular Ltd. He produced original Customer Application Form of Mobile No. 9891215299 along with requisite documents as well as CDRs of this mobile in the name of accused Dinesh Dahiya for the period 26.10.2012 to 01.11.2012.
10. In his cross examination, to a court question as to what does cell-1 ID and cell-2 ID in the CDR depicts, the witness clarified that cell-1 ID is the location of the mobile phone in the range of tower when the mobile phone receives or dials calls and SMS, whereas as Cell-2 ID depicts the location of mobile when the conversation through that mobile ends. He denied the suggestion of the Ld. Counsel that the record produced is manipulated and was prepared in mechanical manner.
11. PW-5 is Sh. Rajeev Ranjan, Nodal Officer in TATA Tele Services Ltd. He produced the CDRs pertaining to mobile phone number 9354917101 in the name of complainant for the period w.e.f. 26.10.2012 to 01.11.2012.
12. In the cross examination, he is stated that as per CDR on 27.10.2012, this mobile phone was in Delhi in 18.36 hours and 5 since 18.45 hours it entered the area covered by towers of Haryana and it remained there till 11.48 hours on 29.10.2012 and entered Delhi region at 13.02 hours on 29.10.2012 and remained in Delhi throughout.
13. PW-6 is Inspector Sh. Anand Singh in Crime Branch, Special Team, Prashant Vihar. He stated that accused Dinesh Dahiya was posted as Sub Inspector in his team. He handed over the attested copies of Case Diaries and Complete Case file of Case FIR No. 233/12, PS Crime Branch Ex. PW-6/B to CBI.
14. In the cross examination, he stated that Gagan Deep Khatri, who was accused in FIR No. 233/12, which was being investigated by Dinesh Dahiya was arrested on 25.10.2012 after 3.00 p.m. Dinesh Dahiya told him that he is investigating regarding the persons involved in leakage of question papers as well as the places where these question papers were solved and Deepak Khatri, who is brother of Gagan Deep Khatri was wanted in that case and was absconding. Dinesh Dahiya also informed him that Gagan Deep Khatri was assuring him that he will point out the place somewhere in Sector 11, Rohini, on 30.10.2012 where the question papers were solved. He also told that to his knowledge Dinesh Dahiya was having only mobile phone at that time bearing No. 9891215299. He also admitted when called for further cross examination that original case file of FIR No. 233/2012 was taken away by CBI on 30.10.2012 and because of that no 6 progress in investigation of that case took place. CBI of its own did not hand over that file and he obtained the file on application.
15. PW-9 is Sh. Sandeep Singh, who was an employee of Sh.
Sohan Gupta. He stated that mobile connection number 8459032314 was taken by him on request of his employer Sohan Gupta and was given to him.
16. In the cross examination, he stated that he know complainant who used to come to meet his employer Sohan Gupta. He can not say if Sohan Gupta passed this SIM to complainant. He stated that his employer told him later on that he handed over the said SIM to complainant.
17. PW-10 Sh. B. S. Tyagi, is the Sanctioning Authority, who gave the sanction to prosecute the accused. At the relevant time he was posted as DCP, Crime and Railways, Delhi Police. He stated that he accorded the sanction on 19.12.2012, after going through the relevant documents and was competent to remove accused from his services.
18. In the cross examination, he stated that on 19.12.2012, he was in IPS Cadre. He showed his ignorance if accused was appointed by DCP Mansoor Ali Sayed, who was an officer of Selection Grade. He was shown the uniform pattern of IPS Officers Ex. PW-10/DA, wherein he was holding the post mentioned at point A and was junior to that of Officer mentioned at point B. He however, clarified that the officers at point A are not subordinates to officers at point B. He also 7 admitted that he did not peruse the file of FIR No. 233/2012 which was investigated by accused at the time of sanction. He did not hear the recorded conversation but went through the transcription. He did not pursue the CFSL report regarding the conversation. He admitted that CBI sent a draft sanction order along with the report, which he placed on record as Ex. PW-10/DB.
19. PW-13 Dr. Rajinder Singh was working as Senior Scientific Officer Grade-1 in Physics division, at the relevant time and examined the CDs mark Q-1, Q-2 and S-1 containing the questioned and sample voice of accused. He examined questioned voice in Q-1 and Q-2 with the specimen voice S-1 and found that questioned voice tallied with specimen voice of the accused.
20. In the cross examination, he admitted that he did not join CFSL as an expert in identifying voices nor he has any degree of diploma from recognized institution in voice identification. He however clarified that earlier there was no such degree or diploma though the same is available now. He stated that till his retirement, neither he nor CFSL was notified as an authority under Section 45A of Indian Evidence Act or Section 79A of Information Technology Act to give opinion in cases of electronic form evidence. He admitted that the forwarding letter of CBI is dated 05.11.2012 whereas the samples were received on 09.11.2012 and he can not say where the exhibits were lying during this period. He selected four sentences 8 each from Q-1 and Q-2 for comparison. As per forwarding letter, the transcriptions were not provided to him, but the office file brought by him, had the said transcription and he does not know how the said transcription came in his file. He did not play the original CDs in SSL machine. He admitted that any digital file can be tampered by cutting and pasting or otherwise by using computer system and even male voice can be changed into female voice. He denied the suggestions that he did not examine any CD or his report is incorrect.
(II) The second set of witnesses are the complainant and the two independent witnesses of verification and Trap proceedings.
21. PW-2 is the complainant Naresh Malik, who deposed that he has two brother-in laws namely Deepak and Gagan Deep Khatri. A case was registered against Gagan Deep Khatri with PS Crime Branch, Prashant Vihar, of which accused was the I. O. who arrested Gagan Deep in October 2012. He visited the office of Crime Branch to provide food and clothes to Gagan Deep and met the accused. Accused told him that Gagan Deep Khatri is also disclosing the name of Deepak Khatri in the said case and accused will arrest Deepak Khatri soon. PW-2 returned to his in-laws house and spoke to his father in law Dilbagh Khatri regarding the purported arrest of Deepak by the accused. On the next day, he again went to Crime Branch office with his father in law and met Gagan Deep, who 9 was weeping and informed that police officials are torturing and forcing him to name Deepak in this case. PW-2 met the accused who scolded him and threatened to involve other family members as well. He along with his father in law returned home. On the next date, he again went to the accused who told that he requires Rs.15 lacs as bribe to not to arrest Deepak in that case. PW-2 discussed with his in-laws and since they were not having so much amount, they went to CBI office and lodged the complaint. Verification proceedings were conducted in the presence of independent witness Bal Krishan on 29.10.2012. PW-2 made a telephonic call to accused from his mobile No. 9354917101 and on negotiations, accused agreed to reduce the amount to Rs.10 lacs. PW-2 arranged Rs.3 lacs with the help of Deepak Khatri and gave this amount to CBI, who applied some powder. The trap proceedings were conducted on 30.10.2012 and FIR was registered after the arrest of accused. On 30.10.2012, PW-2 along with independent witnesses PW-7 and PW-8 and CBI team reached at Crime Branch Office, where accused came in his car and asked the complainant to sit in his car and on asking handed over Rs.3 lacs to him, with promise to pay balance Rs.7 lacs within a week. Accused took the money in his left hand and kept the same in the drawer of the dashboard of the front seat of the car. After few minutes, CBI vehicle overtook the car of the accused and apprehended the accused. The accused told CBI officials that the money is in 10 the dashboard, which was taken out by the CBI officials and the hand wash of the accused was also collected. Thereafter, accused was taken to Crime Branch Office and the search of his office was conducted and thereafter they all returned to CBI office. The witness duly identified his signatures on the complaint as well as all the documents prepared during investigation. The CD containing the alleged conversation was also played to the witness, who identified the voices in the CD. The witness also identified 300 currency notes of the denomination of Rs.1,000/- each. He also stated that he does not know any person namely PW-9 Sohan Gupta and Sandeep Singh nor he was having mobile No.8459032314. He was cross examined by Ld. PP on certain aspects where he admitted that the complaint was made by him on 29.10.2012 and the verification proceedings were conducted on the same day and the telephonic conversation between him and accused was recorded in the DVR and the rough transcription Ex. D-2 of this conversation was prepared. On 30.10.2012, FIR was registered and thereafter, trap team left for the spot. After reaching the Crime Branch office, the accused asked him to come in his car and the independent witness Bal Krishan was left behind.
22. In the cross examination by the Ld. Defence counsel, he stated that he met Gagan Deep Khatri while he was in Police custody after his arrest in October 2012, but he does not know when and from where Gagan Khatri was arrested by accused.
11On 25/26.10.2012, his father in law telephonically informed about the arrest of Gagan Khatri and he came to Delhi on the same day. He can not say if Gagan Khatri was arrested on 19.10.2012 in FIR No. 232/2012 regarding leakage and sell of question papers of SSC Examination nor he can admit or deny if Gagan Khatri was arrested in FIR No. 233/2012 on the evening of 25.10.2012. He admitted that he has mentioned in his complaint that Gagan Khatri was arrested on 25.10.2012 through Production Warrant in FIR No. 233/2012. He was confronted with his statement given in court several times, which were not part of his statement Ex. PW-2/DA given u/s 161 Cr.P.C. to the I. O. He stated that he went to CBI office for the first time on 29.10.2012 at about 11.00 am. Prior to that, he had spoken to the accused on mobile phone and accused had demanded money during those calls. He admitted that these facts are not mentioned in his complaint. His father in law was with him on 29.10.2012, when he went to Crime Branch office. He asked independent witness Bal Krishan not to come with him in the car of the accused as accused would have got suspicious. The accused took the money in his left hand and kept the same in the dashboard. The CBI officials did not take out the cash from the car of the accused. He denied the suggestions that mobile phone No. 8459032314 was taken by him from PW-9 Sohan Gupta to make a false case against the accused. He denied the suggestion that accused did not demand any bribe nor 12 received any bribe nor any bribe was recovered from him and accused has been falsely implicated in this case.
23. PW-7 Bal Krishan is the independent witness of Verification as well as Trap proceedings, who stated that on 29.10.2012, he went to CBI office, where he was introduced to the complainant who told regarding demand of bribe by SI Dinesh Dahiya for not implicating the name of Mr. Malik as accused in relation to some examination offence. The complainant spoke to Dinesh Dahiya on phone in his presence but "Baat nhi ban pai" (Things could not materialized). On 30.10.2012, he again went to CBI office where another witness Mr. Sharma also reached and the complainant was there. The demonstration of trap proceedings was given. The complainant produced Rs.3 lacs in denomination of Rs.1,000/- and thereafter they left for PS Prashant Vihar. After reaching there, accused came out of his office in his car and called the complainant in his car. The CBI officers along with independent witnesses followed the vehicle of accused. He could hear their conversation. The accused felt of being followed and tried to fled away from his vehicle after alighting but was overpowered by CBI officers on which he threw away the bribe amount, which he might have taken from the complainant. The currency notes were put in chemical which turned pink. The witness was declared hostile by Ld. PP and on his cross examination by Prosecution, he admitted the entire version of the Prosecution case, as stated 13 by him to I.O. in his statement recorded under Section 161 Cr. P. C. In the cross examination by Ld. Counsel for accused, he stated that he was asked by his Assistant Commissioner on 28.10.2012 to reach CBI office. He went there on that day but did not see the complainant till 3.00 pm. On 29.10.2012, he again reached CBI office, where he met the complainant and CBI Inspector and came to know that accused is demanding money from complainant regarding some exam and the complainant spoke to accused on phone followed by their visit to Police Station Crime Branch and the complainant made a call to accused and an offer of Rs.3 lacs was made by the complainant which was declined by the accused. On 30.10.2012, the complainant and the accused were travelling in a car, which was followed by CBI team. Accused ran about 5-10 paces before being overpowered. The currency notes were thrown away at the spot, where he was overpowered. On being asked as to for how much time the currency notes were lying on the ground, the witness stated that accused threw the currency notes in his car and then ran away. 5-6 team members chased the accused. He did not see the accused on 29.10.2012, nor he went inside the Crime Branch Office with the complainant on that day. Same DVR was used on 29.10.2012 and 30.10.2012. He admitted that he did not hear any conversation between the complainant and the accused, when they were travelling on 30.10.2012. Before he reached the place of apprehension of accused, he was 14 already intercepted and was found apprehended outside his car and was standing 5 steps away from the car. The Inspector directed him and the other independent witness that accused had told that money is in the dashboard of his car. He had no knowledge as to what had happened inside the car when the complainant and accused were in the car. He denied the suggestion that he is deposing falsely at the instance of the CBI.
24. PW-8 Mr. Subhash Chand Sharma is the other independent witness. He is the witness only to the trap proceedings and stated that on 30.10.2012, as per directions of his seniors, he reached CBI office where Insp. Shitanshu Sharma met him and introduced him to the other CBI team members and one Sh. Bal Krishan (PW-7) and the complainant Naresh Malik. He was further informed that one Sub Inspector Dinesh Dahiya is demanding Rs.15 lacs from the complainant for not implicating the relatives of the complainant in some case. He saw the hand written complaint in this regard. He was further informed that Dinesh Dahiya agreed to accept Rs.10 lacs from the complainant. The complainant had arranged Rs.3 lacs in currency notes of Rs.1,000/- each and the details of the same were mentioned in Memo and thereafter, demonstration of phenolphthalein powder and solution of sodium carbonate and water was given and phenolphthalein powder was applied on the currency notes, which were kept in the left side pant pocket of the 15 complainant. One DVR was arranged in which his introductory voice and that of Bal Krishan was recorded and the same was handed over to complainant. Thereafter they all left for office of Crime Branch, Paschim Vihar. On the way, complainant was asked to call the accused and after reaching the Crime Branch Office, accused was again informed and then accused came in his car from the side of Crime Branch Office and the DVR was switched on and kept in the pocket of the complainant and the complainant sat in the car of the accused, which started moving. After 10-15 minutes, the car of accused was overtaken and accused was taken out from his car. Shitanshu Sharma caught hold the left hand of the accused, whereas the other Inspector caught hold the right hand. On asking, complainant informed that accused had demanded the money, which he handed over and after checking the same, it was kept by the accused in the dashboard of the car. He took out the money from the dashboard and the currency notes were tallied. Solution of water and sodium carbonate was prepared and the hand wash of both the hands of the accused was taken separately. Accused was arrested. The DVR was switched off. Again on 26.11.2012, he went to CBI office and signed the transcription of the said recording. The dashboard of the car was also clean with wet cloth and was dipped in solution of water and sodium carbonate, which also turned into pink.
25. In the cross examination, he stated that witness Bal Krishan 16 reached the spot after about 4-5 minutes of apprehending the accused. Accused was taken to a bench about 20 feet away from the car. The cash was kept by him after taking out from the dashboard of the car of the accused. The complainant alighted from the car of the accused after 3-4 minutes and informed about the transaction. He did not see the complainant giving the cash to the accused or accused putting the cash in the dashboard or accused demanding the money. The hand washes of the accused was taken at the said bench and even the test of dashboard wash was conducted at the bench. He denied the suggestions of deposing falsely at the instance of CBI.
(III) The third set of witnesses are the CBI officials of Verification Proceedings, Trap Proceedings and the I. O.
26. PW-12 is Shri Bhagwan, who conducted the Verification Proceeding on 29.10.2012 and stated that the complaint of Naresh Malik Ex. D-1 was marked to him for verification by the then SP. He secured the presence of independent witness PW-7 and thereafter arranged DVR and after verifying its emptiness through independent witness introductory voice of independent witness was recorded and the same was handed over to the complainant and then they proceeded to Crime Branch Office, Prashant Vihar. Complainant was asked to contact the suspect from mobile to mobile. The suspect informed that he is busy and will call later and after some time, 17 suspect called the complainant and informed that they will meet. After this call, suspect came near the car of the complainant and then the complainant boarded the car of the accused and left. After sometime, complainant returned and handed over the DVR after switching off the same, and then they returned to CBI office. Complainant informed that suspect had demanded bribe of Rs.15 lacs but agreed to reduce it to Rs.10 lacs. The conversation was transferred to CD and heard and rough transcription was prepared. He prepared the verification memo. The CD was properly sealed and case under Section 7 was registered against the accused on 30.10.2012. He also accompanied the trap team led by Insp. Shitanshu Sharma on 30.10.2012. Complainant arranged Rs.3 lacs which were treated with phenolphthalein powder and the demonstration was explained to all the trap team members by Inspector Nikhil Malhotra. The numbers of GC notes were also recorded. DVR was arranged and after recording the introductory voices of the independent witnesses, the same was given to the complainant. The tainted money was put in the pant pocket of the complainant by the independent witness and then they proceeded to the Crime Branch Office. Independent witness Bal Krishan was told to be a shadow witness and other witness Subhash Chand Sharma was asked to be with the trap team. After reaching the spot, complainant was asked to call the accused to which accused said "OK" and then after sometime called 18 back and came in a vehicle and the complainant got down from his car and boarded the vehicle of the accused. After sometime, the said car started moving which was followed by the trap team and finally intercepted and stopped the car of the accused. The TLO and other Inspector Anand Swaroop caught the accused. The complainant who was sitting the car, narrated the incident and told that the bribe amount has been kept by the accused in the dashboard of the car. The DVR was taken from the complainant and heard. It confirmed the version of the complainant and accused admitted that he has accepted the bribe. The washes of the dashboard of the car and both the hands of the accused were taken and the solution turned pink. Rough site plan was prepared and then accused was taken to Crime Branch Office, where he was arrested and then they returned to CBI office and other formalities were completed. He also issued the Certificate under Section 65B of the Indian Evidence Act on 14.05.2015 and handed over it to the I. O. He denied the suggestions that the complaint was got written on 30.10.2012 after apprehending the accused and it was later on changed to 29.10.2012. He admitted that as per guidelines of CBI Manual, the substance and information has to be mentioned in a Verification Register and Verification Number is to be mentioned on the complaint itself and there is no such number on the complaint Ex. D-1. The witness, however, volunteered that it was mentioned in the Verification Report Ex.D-2. He 19 stated that brother in law Deepak Khatri of the complainant and father in law never visited the CBI office on 30.10.2012. Complainant had brought Rs.3 lacs in the morning itself when he reached CBI office. He admitted that independent witness Bal Krishan despite specific instructions did not accompany the complainant on 29.10.2012 as well as on 30.10.2012, when the complainant met the accused. He reached at the spot after apprehension of accused, when the TLO had already intercepted the accused and the accused was still sitting in his car. The independent witness Subhash Chander was with him and the other independent witness Bal Krishan was already there but he does not remember how Bal Krishan reached there. He admitted that he had not issued the Certificate under Section 65B till the filing of the charge sheet and the said Certificate does not contain the specification or identity of the computer system.
27. PW-11 is TLO/ Inspector Sh. Shitanshu Sharma, who stated that on 30.10.2012, the present FIR Ex. D-3 was entrusted to him for investigation and a team was constituted with two independent witnesses PW-7 and PW-8. All were briefed about the purpose of the assembly. The DVR was procured. The complainant could arrange only Rs.3 lacs and the demonstration was given by Inspector Nikhil Kumar Malhotra and the witness Bal Krishan was directed to remain with the complainant as Shadow witness. Thereafter, they left for spot in two different vehicles. The complainant called the 20 accused on instructions. The complainant went near Police station Prashant Vihar, when a car came towards him and the complainant alighted from his car and boarded that car driven by accused. After a while, the complainant gave a missed call and all the team members rushed towards that car but it started moving and thereafter, they chased that car and accused became suspicious and as such his car was intercepted and stopped. The accused tried to flee but then said "I am arresting". All the team members reached the spot. He and Inspector Anand Swaroop held the accused from his hands. The complainant narrated the incident. The tainted bribe amount was recovered from the dashboard of the car of the accused by the independent witness. The washes of the dashboard and the hands of the accused were collected and treated with the sodium carbonate and water solution, which turned pink and were duly sealed. Rough site sketch was prepared. Accused was taken to his office, where he was formally arrested and then they returned to CBI Office. The recordings of the DVRs were transferred to CD. The specimen voice of the accused was obtained and transferred to CD. Rough transcription was also prepared. He issued two Certificates under Section 65B of the Indian Evidence Act and other formalities were completed and the Investigation was handed over to Sh. Vikas Pathak.
28. In the cross examination, he stated that he received investigation at around 2.00 pm on 30.10.2012. He admitted 21 that there is overwriting at point X on the date on complaint Ex. D-1 but denied the suggestion that the complaint is dated 30.10.2012 but later on overwritten as 29.10.2012. He stated that no specific directions were given to the complainant to keep independent witness Bal Krishan with him at the time of transaction of bribe amount. The conversation between the complainant and the accused dated 30.10.2012 on mobile while on way to the spot was not recorded as it was only to know the whereabouts of the accused. The trap team left the CBI office in three vehicles and two of those were government vehicles. He travelled to the spot in the car of the complainant alongwith two independent witnesses and they reached there at about 8.00 pm. The car of the complainant remained stationed near Reliance Fresh, which is at a distance of 100 mts. from the office of Crime Branch and the complainant remained in his car till the arrival of the accused. The trap team was at the distance of 20-30 paces from the car of the complainant. The car of the accused was followed for about 3-4 kms. The other government vehicles did not reach the spot, where accused was apprehended alongwith the vehicle, in which he was following the accused, but reached there after a gap of 5-10 minutes. The two public witnesses were in that government vehicle. The accused was standing out his car when he and Anand Swaroop were holding his hands, when the other team members reached there. The hand washes of accused were taken on the bonnet of the official car. The 22 rough site plan was prepared on his directions. The wash of the steering of the car of the accused was not taken as it was not necessary. He had seized the original case file of FIR No. 233/2012, which was investigated by the accused. The fact of seizure of original case file was not mentioned in the Recovery Memo. He however, denied the suggestion that because of the seizure of the original case file, the investigation in that case was stalled or that he deliberately concealed the fact of seizure of original file in the Seizure Memo. He denied the suggestions of false implication.
29. The last prosecution witness is PW-14 IO/ Inspector Sh.
Vikas Kumar Pathak, who took over investigation from TLO and recorded the statement of the witnesses, prepared transcription memos, collected CDRs of the mobile phones, collected the reports from CFSL and also filed the charge sheet.
30. In the cross examination, he stated that when he received the file, it already contained rough transcription of CD Q-1. He does not remember whether rough transcription of CD Q-2 was prepared in this case or not but no such rough transcription is on record as part of charge sheet. He admitted that transcription of Q-1 is similar to its rough transcription. He however denied the suggestion that it is fabricated evidence. He denied the suggestion that phone number 8459032314 was actually in possession of complainant and was planted on the accused. He denied the 23 suggestions of wrongly prosecuting the accused.
31. After completion of prosecution evidence, the statement of the accused was recorded u/s 313 Cr.P.C. All the incriminating evidence which has come on record against the accused was put to the accused in his statement recorded u/s 313 Cr.P.C. The accused in his statement under Section 313 Cr. P. C. has stated that he is innocent and falsely implicated by the CBI. He stated that Gagan Deep Khatri was arrested initially on 29.10.2012 in FIR NO. 232/2012 and later on, on Production Warrant was arrested on 25.10.2012 in FIR no. 233/2012. Complainant never visited the office of Crime Branch to meet Gagan Deep Khatri.
32. Accused in his statement recorded under Section 313 Cr. P. C. has deposed that his position from 25.10.2012 to 28.10.2012 was as follow:-
A On 25.10.2012, the brother in law of the complainant (Gagandeep Khatri) was taken into police custody at about 3 p.m. from Dwarka Court and was brought to the office of Crime Branch and interrogated the accused.
B On 26.10.2012, he was not present in the office of Crime Branch from 9 a.m. to 10 p.m. and was busy in the investigation of the case.
C On 27.10.2012, he was not present in the office of Crime Branch from 9 a.m. to 9:30 p.m. and was busy in the investigation of the case.
D On 28.10.2012 he was not present in the office of Crime Branch from 8 a.m. to 11:00 p.m. and was busy in the investigation of the case.24
E On 29.10.2012 he was not present in the office of Crime Branch from 8 a.m. to 11 p.m. and was busy in the investigation of the case.
33. He further stated that PW-2 Naresh Malik has deposed falsely against him because he was the instrumental in falsely implicating him in connivance with the CBI. Complainant and his father in law were mainly interested in saving Deeepak Khatri from case FIR no. 233/12 which was pending investigation with accused at the relevant time. Deepak Khatri was wanted in that case and was evading his arrest. PW-2 Naresh Malik in a well planned manner called accused on his mobile number and assured me that he will show him the places where the leaked question papers of SSC examination were solved and further distributed to the candidates and accused also informed that fact to his Inspector. On 30.10.2012, when Gagandeep Khatri was sent to Judicial Custody. PW-2 called accused outside his office and boarded his car and directed him to proceed towards Sector 11, Rohini for showing the place where question papers were solved and distributed and on the way his car was hit from the rear side by another car driven by Deepak Khatri. When he stopped his car, he was overpowered by the CBI officials, beaten and dragged outside and away from his car and was made to sit on a bench at a distance to 200-250 meters till the arrival of another team members including witnesses. The complainant 25 was sitting inside my car front of the dash board when accused was dragged out of his car. After his apprehension, his car was exclusively in possession of CBI officials. The other team members arrived after a gap of 30-40 minutes. No search of his car was taken in his presence and nothing was recovered from his car as he was made to sit away from his car and at that time, there was dark. The tainted money was planted upon him by the CBI in connivance with the complainant Naresh Malik. He had never demanded nor accepted any money/illegal gratification from the complainant on any day in any manner, nor alleged amount recovered from his possession or in his presence and he has been falsely implicated in the present case. After his arrest, the CBI officials seized the original case file of case FIR no. 233/12 resulting into the stoppage of the investigation of the case. The same was returned to the police station Crime Branch only after the court order to this effect. Thereafter, till date the brother in law of the complainant was not arrested and the complainant party succeeded in achieving their goal for saving Deepak Khatri by falsely implicating him in the present case.
34. He has further stated that all the alleged recordings CD Q1, Q2 and S1 are fabricated by the CBI for making a false evidence against him and they all are inadmissible piece of evidence for want of certificate u/s 65 of Indian Evidence Act.
EVIDENCE LED BY THE ACCUSED DINESH DAHIYA.
2635. In his defence evidence, accused Dinesh Dahiya has examined 09 witnesses.
36. DW-1 is Sh. Narender Singh, ASO in Central Vigilance Commission, who produced the Office Order No. 73/12/2005 Ex. DW-1/A, pertaining to action to be taken against public servant appearing as witness but turned hostile in trap and other cases.
37. DW-2 is ASI Surender Singh, who produced the DD entry record in respect of investigation of FIR No. 233/12 investigated by the accused herein and specifically the DD entry no. 8 and 23 dated 25.10.2012, DD no. 17 dated 26.10.2012, DD No. 7 dated 27.10.2012 and DD No. 9 dated 29.10.2012 pertaining to departure of accused from the Crime Branch Office and DD No. 18 dated 29.10.2012 regarding arrival of the accused in the office.
38. DW-3 is witness from Police Headquarters namely HC Sumit Kumar, who produced the original appointment letter Ex. DW-3/A of accused and that he was appointed by Mansoor Ali Sayeed the then DCP, HQ-1.
39. DW-4 is SI Devender Pal Kaur, who produced the service record of Sh. Mansur Ali Sayed, IPS and Sh. S.B.S. Tyagi, IPS. As per this record, on 21.08.1996 Sh. Mansur Ali Sayed, IPS was posted as Deputy Commissioner of Police (Selection Grade), and on 19.12.2012 Sh. S.B.S Tyagi, IPS was holding the post of Deputy Commissioner of Police (Junior Administrative Post). Sh. S.B.S Tyagi was granted Selection 27 Grade w.e.f. 13.05.2013.
40. DW-5 is HC Naresh Kumar, who produced the daily diary register A and B maintained in PS Samaypur Badli containing entries regarding case FIR No. 233/2012 PS Crime Branch from 25.10.2012 to 29.10.2012. As per this register, the accused herein came to the police station alongwith Gagandeep Khatri accused of FIR No. 233/12 after obtaining his Police Remand on 26.10.2012. Then on 27.10.2012 vide DD No. 28, he left the police station alongwith the accused of case FIR No. 233/12 at 9.40 am for investigation and then vide DD No. 77 of the same day, came back to police station after investigation at 9.20 pm. Similarly, on 28.10.2012, he left the police station at 8.30 am vide DD No. 20 and returned at 8.06 pm vide DD No. 59 and similar exercise was done on 29.10.2012 vide DD No. 33 and 68 respectively and again on 30.10.2012, he left the police station at 9.15 am alongwith accused Gagandeep and other team.
41. DW-6 Sh. Virender Kumar Dahiya is retired ACP. He is relative of one Jaldeep Dahiya a resident of his village and said Jaldeep Dahiya is relative of complainant Naresh Malik. He stated that in October 2012, when he was posted as ACP, Jahangirpuri, Jaldeep Dahiya called him and told that Naresh Malik is in some problem relating to a case of leaking of SSC exam papers. There after Naresh Malik with his father in law visited the office of this witness and told that Gagandeep has been arrested by the police and the police is also searching 28 for Deepak Khatri, who is elder brother of Gagandeep. Complainant Naresh Malik also told that he is trying to contact Dinesh Dahiya but could not meet him.This witness spoke to Dinesh Dahiya, who told that Gagandeep has disclosed the name of Deepak Khatri and his interrogation is necessary. Complainant was apprehensive that Dinesh Dahiya would implicate him and his family members in the said case.
42. DW-7 is ASI Baljeet Singh, who was involved in investigation of FIR No.233/12 alongwith accused herein and stated that PC remand of Gagandeep was taken in that case on 25.10.2012 after 2.00 pm till 30.10.2012 and during this period, Gagandeep was taken to different places including Delhi and Haryana and during day hours, they were never present at police station.
43. DW-8 is Sh. Susanta Parida, a witness from Ministry of Home Affairs and produced the revised guidelines for promotion of officers of IPS.
44. DW-9 is ASI Shailender Singh, witness from Crime Branch and was associated in investigation of FIR No. 233/12 with the accused herein and deposed similarly on the lines of DW-7.
45. I have heard Ms. Shashi Tiwari and Ms. Shweta Dhingra, Ld. PPs for CBI and Sh. Sandeep Sharma Ld. Counsel for accused Dinesh Dahiya. I have also perused the file, written arguments filed on behalf of the accused and the case law relied upon by the parties.
29ARGUMENTS OF THE LD. P.P. FOR CBI.
46. It was argued by Ld. PP for the CBI that all the three aspects of demand, acceptance and recovery of bribe have been duly proved by the prosecution. The complaint dated 29.10.2012 has been duly proved and it is undisputed that accused was the I. O. of the FIR No. 233/2012 wherein Gagandeep Khatri, the brother in law of the complainant was arrested and the accused was trying to implicate the other brother in law namely Deepak Khatri in that FIR and for not doing so demanded bribe from the complainant and the motive has also been duly proved. The conversations between the complainant and the accused were duly recorded both at the time of verification and during the trap proceedings and same has been duly proved on record. The transcript of these conversation clearly showed that accused demanded a bribe of Rs.15 lacs from the complainant for not implicating Deepak Khatri and then settled the amount to Rs.10 lacs and then demanded and accepted Rs.3 lacs in cash from the complainant in his car and was caught red handed on the spot. The hand washes and the wash of the dashboard were duly taken and same turned pink when it was dipped in the solution of sodium carbonate and water, which proved that accused accepted the bribe amount and same was also recovered from the car of the accused. Both the independent witnesses proved this transaction and same was duly supported by the testimony of complainant as well as member 30 of the CBI raiding team and the prosecution has successfully proved all the aspects of the offences charged against the accused beyond reasonable doubts. The sanction required to prosecute the accused was given by competent person and had been duly proved. The CFSL expert also proved the hand washes and the dashboard wash as well as that the conversation had the voice of the accused and therefore, there is no reason to doubt the CFSL reports. The section 65B Certificate under Indian Evidence Act was duly proved and was also filed at appropriate stage. This certificate was given by I. O., who was competent to give such certificate and the same has been duly proved on record as per the judgments of Hon'ble Supreme Court of India in Arjun Pandit Rao Khotkar vs. Kailash Kushan Rao Gorantyal and Ors., Civil Appeal No. 20825-20826 of 2017 dated 14.07.2020 as well as judgment of Delhi High Court given in Kundan Singh vs. State I (2016), DLT (Crl.) 144 DB. It was argued that the judgment of Hon'ble Supreme Court given in Anwar PV vs. P. K. Basheer and Ors. 2014 (10) SCC 473 was discussed by Hon'ble Delhi High Court in the judgment of Kundan Singh and as such the certificate under Section 65B stands duly proved and there is no reason to doubt the CDs prepared by the TLO which were sent to FSL and prosecution has proved its case beyond reasonable doubt and accused should be convicted for the all the offences he has been charged for.
31ARGUMENTS OF THE LD. COUNSEL FOR ACCUSED.
47. Ld. counsel for the accused on the other hand has argued that prosecution has failed to prove its case on all counts. The sanction for prosecution of the accused was not given by competent person as accused was appointed by DCP Selection Grade whereas the sanction was given by PW-10, who was DCP Junior Administrative grade and under article 311 of Constitution of India, no government servant can be dismissed or removed by an authority subordinate to that by which he was appointed. It was also argued that even otherwise PW-10, who was the sanctioning authority did not apply his minds nor the entire evidence /material was placed before him by CBI at the time of granting of sanction. Further, it was argued that CDs Ex. Q-1 and Q-2 were not proved as per law. None of the CDs was having any certificate under Section 65B of the Indian Evidence Act at the time of their exhibition during the course of trial which was objected to and the objection was left often to be decided at final stage. The production of certificate under Section 65B at the later stage is of no help to the prosecution as they are inadmissible in evidence. Otherwise also, both the certificates are not as per proper compliance of provisions of Section 65B and can not be looked into. It was also argued that even otherwise the contents of Q-1 and Q-2 have no evidentiary value even if they are presumed to be proved as per law. It was argued that none of the conversation satisfied the test / conditions laid 32 down by the Hon'ble Supreme Court in Ram Singh vs. Col. Ram Singh AIR 1986 SC 3. It was further argued that the prosecution could not prove the initial demand of bribe by the accused nor demand on 29.10.2012 nor the demand and acceptance on 30.10.2012. Further the manner in which recovery is attributed in the present case makes the prosecution case doubtful. There are material contradictions in the statements of complainant PW-2 and two independent witnesses PW-7 and PW-8 and therefore, they can not be relied upon for which reliance has been placed upon on the judgment of Hon'ble Supreme Court given in Parvat Singh and Ors. vs. State of Madhya Pradesh, in Criminal Appeal No. 374 of 2020 dated 02.03.2020. It was argued that there was no motive on the part of accused to demand or accept bribe whereas there was motive on the part of the complainant and his family members to save Deepak Khatri by falsely implicating the accused in this case. Recording of FIR is also not proved beyond doubts as there was overwriting on the date in the complaint alleged to be made on 29.10.2012. The mobile No. 8459032314 was planted on the accused by CBI in connivance with the complainant and this phone never belonged to accused nor was used by the accused. The site plan prepared of the alleged spot of apprehension of the accused is unreliable as it does not even mention the spot of the demand and acceptance of the bribe. The hand washes are doubtful as the witnesses admitted that case property was 33 sent to them vide letter dated 05.11.2012 but reached the office of CFSL on 09.11.2012 though the office is hardly half Km. away. It was for the prosecution to prove its case beyond reasonable doubts and it is not for the accused to prove his innocence beyond reasonable doubts and the accused has to only show by his defence based on the principle of preponderance of probability that he is innocent, which the accused has proved in this case and is entitled to be acquitted.
48. In support of his contentions, Ld. Counsel for the accused relied upon the following judgments:-
i. Ashok Rangshahi vs. State of MP, 1996 (2) Crimes 39.
ii. Omkar Chand Parashar vs. The State, 1994(3) CC Cases 38 (Delhi HC).
iii. State Inspector of Police vs. Surya Sankaram Karri, 2006(4) RCR (Criminal) 53 SC.
iv. Davinder Singh vs. State, Indian Law Reports (1974) II 400 (Delhi DB).
v. Gopalbhai Mohanbhai Nagoda vs. State of Gujrat, IV (1993) CCR 3288 (DB), GHC.
vi. Krishna Kumar vs. Divisional Assistant Electrical Engineer & Ors. (1979) 4 SCC 289.
vii. State of Karnataka vs. Ameerjan (2008) Cr. L. J. 347 (SC).
viii. Ashok Kumar Aggarwal vs. CBI,2007 (10)AD,Delhi 73 DHC.
ix. K. C. Singh vs. CBI, Crl. Appeal No. 976/2010, dated 10.08.2011.
x. V. VenkataSubbarao vs. State 2007 Cri. L. J. 754.
34xi. Anvar PV vs. PK Basheer & Ors., 2014(10) 2014 SCC 473.
xii. Shafi Mohammad vs. The State of Himachal Pradesh, SLP (Crl.) No. 2302/2017 dated 13.02.2018.
xiii. National Insurance Company Ltd. vs. Pranay Sethi & Ors., 2017 (4) RCR (Civil) 1009.
xiv. Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal & Ors.,Civil Appeal Nos. 20825-20826 of 2017 dated 14.07.2017.
xv. Kundan Singh vs. State, I (2016) DLT (Crl.) 144 (DB).
xvi. Karnataka Lokayukta Police Station Bengaluru vs. M. R. Hiremath, Crl. Appeal No. 819/2019 dated 01.05.2019.
xvii. Acche Lal Yadav vs. State of Delhi, 2014(8) LRC 236 (Delhi) DB.
xviii. Jitender Pal Singh vs. Krishan Kishore Bajaj CRM-M-
37435 of 2018.
xix. Ram Singh & Ors. vs. Col. Ram Singh, AIR 1986 SC 3.
xx. S. K. Saini & Anr. vs. CBI, Crl. Appeal No. 159/2005 dated 19.08.2015.
xxi. Nilesh Dinkar Paradkar vs. State of Maharastra, 2011 (4) SCC 143.
xxii. Suraj Mal vs. The State (Delhi), AIR 1979 SC 1408.
xxiii. Ashok Narang vs. State, 2012 (2) LRC 287 (Del).
xxiv. L.K.Jain vs. State through CBI,124(2005)DLT 371, DHC.
xxv. Yudhister Rajkumar vs. State of M. P. 1971 (3) SCC 436.
xxvi. Rudrappa Ramappa Jainpur vs. State of Karnataka, 2004(2) JCC 1172.
xxvii. PitabashLohara vs. State of Orissa, 2011 (4) Crimes 196 (ORISSA).
xxviii. Sher Singh vs. State, 1989 (1) Crimes 283.
35xxix. State of Kerala & Anr. vs. C. P. Rao, 2011 (6) SCC 450.
xxx. G. V. Nanjundiah vs. State (Delhi Admn.), 1987 AIR SC 2402 (Para 24 & 25) xxxi. MK Harshan vs. State of Kerala, 1996 (1) CCR 218 (SC).
xxxii. Smt. Meena Balwant Hemke vs. State of Maharashtra, 2000 Cr. L. J. 2273 (SC).
xxxiii. C. M. Girish Babu vs. CBI, AIR 2009 SC 2022.
xxxiv. Banarsi Dass vs. State of Haryana, III (2010) SLT 91.
xxxv. State vs. Girdhari Lal, Manu/DE/ 2429/2011 (DHC).
xxxvi. Khushi Ram vs. State, 1995 II AD (Delhi) 77.
xxxvii. Kishan Chand Verma vs. State through CBI, Crl. A. 788/2000 dated 04.07.2019.
xxxviii. Lachman Dass vs. State of Punjab AIR 1970 SC 450.
xxxix. Chander Bhan vs. State (CBI), 73 (1998) DLT 318.
xl. Ganpati Sanya Naik vs. State of Karnataka, AIR 2007 SC 3213.
xli. Vijay Singh vs. State, 2005 Cr. L. J. 299 MP(DB) xlii. Shingara Singh vs. State, 2004 Cr. L. J. 828.
xliii. Roshan Lal Saini vs. CBI (DHC), 2011 (1) JCC 102.
xliv. Panna Lal Damodar Rathi vs. State of Maharashtra, (1979) 4 SCC 526.
xlv. V. D. Jhingan vs. State of Uttar Pradesh, AIR 1966 Supreme Court 1762.
xlvi. State of Maharashtra vs. Dnyaneshwar Laxman Rao Wankhede, 2009 (4) RCR (Criminal) SC 217.
xlvii. Prem Singh Yadav vs. CBI, 2011 (2) JCC 1059.
36xlviii. T. Subramanian vs. State of T. N.(2006) 1 SCC 401.
xlix. Babuda vs. State of Rajasthan, AIR 1992 SC 2091.
l. Swinder Singh vs. State of Punjab, AIR 1992 SC 669.
li. Varkey Joseph vs. State of Kerala, 1993 Cr. L. J. 2010 (SC).
Conclusion Sanction:-
49. Ld. Defence counsel has challenged the sanction on two counts i.e. PW-10 was not competent to give sanction being Junior to the authority, who appointed the accused and secondly that PW-10 did not apply his mind as entire material was not placed before him.
50. Ld. PP on the other hand has countered this arguments on the ground that PW-10 was competent and considered entire material required at the stage of granting sanction.
51. Coming to the competence of PW-10, PW-10 during his cross examination admitted the uniform pattern of IPS officer, which was exhibited as Ex. PW-10/DA. On this document, the uniform pattern of Deputy Commissioner of Police was mentioned and the one mentioned at point A (rank of PW-10) was Junior to that mentioned at point B(rank of appointing authority of accused). It is undisputed that accused was appointed by the then DCP Mansoor Ali Sayed, who was an Officer of Selection Grade, whereas PW-10 was an officer of Junior Administrate Grade. As per section 2(k) of Indian Police Service Rules 2007, the promotion means appointment 37 of a member of the service to the next higher grade over the one in which he is serving at the relevant time. Section 3 of these rules further explain the pay bands and the grade pays.
Junior Administrative grade officer is in pay band 3 whereas Selection grade officer is in pay band 4. This shows that accused was appointed by a DCP, who was senior to the PW- 10 and therefore, the sanction in the present case is hit by Article 311 of Constitution which provides that a government servant can not be dismissed or removed by an authority subordinate to one it was appointed. Secondly, the sanction is also improper as PW-10 did not have access to all the material as it was not placed before him by the CBI. PW-10 in his cross examination admitted that he did not peruse the file of FIR No. 233/2012 which was investigated by the accused nor he heard the recorded conversation between the complainant and the accused nor he perused the CFSL report pertaining to the recorded conversation. He also admitted that CBI sent a draft sanction order and the contents of the said draft sanction order Ex. PW-10/DB are the same as that of sanction order Ex. PW-10/B except of the grammatical and spelling mistake. This clearly shows that sanction order was verbatim same as that of draft sanction order and further PW- 10 did not peruse the entire material and as such the sanction is invalid and was mechanically given without application of mind.
52. Coming to the conversation in CDs Ex. Q-1 and Q-2 and the 38 aspect whether they were proved as per law or not. Admittedly the certificates under Section 65B of the Indian Evidence Act required to prove these CDs were not filed with the charge sheet nor at the stage when the CDs were exhibited. They were filed subsequently when the Hon'ble Delhi High Court passed the judgment in Kundan Singh vs. State,(supra) holding therein that Prosecution can be allowed to produce the certificate under Section 65B at any stage. After the judgment of Hon'ble Delhi High Court in Kundan Singh, the Hon'ble Supreme Court gave its judgment in Arjun Pandit Rao Khotkar(supra) and clarified that the judgment of Hon'ble Supreme Court in Shafi Mohd. vs. State of Himachal Pradesh passed in SLP (CRL.) No.2302 of 2017 dated 30/01/2018 is not a good law and overruled it and reiterated that Certificate under Section 65B must accompany the electronic records when its produced in evidence and in criminal cases, such certificates should be filed with the charge sheet. Considering this law, the CBI failed to prove the CDs as certificates in the present case were filed at much belated stage after the CDs were already tendered in evidence and the defence raised objection to the exhibition of the CDs. Otherwise also, a perusal of these three certificates shows that they are not as per law as required under Section 65B of the Indian Evidence Act and surprisingly one of the Certificates Ex. PW-12/A is dated 14.05.2012, which even before the registration of the case and no explanation in this 39 regard came forward during evidence nor during arguments. The prosecution therefore, failed to prove the two CDs and conversation contained therein.
53. Coming to the aspect of demand, acceptance and recovery of bribe. There are material contradictions in the statement of complainant, the two independent witnesses as well as the material on record, which makes the prosecution story doubtful. There is only one witness i.e. the complainant to demand and acceptance as on both the occasions i.e. during the verification proceedings as well as during the trap proceeding the independent witness PW-7 did not accompany the complainant when the complainant met the accused. As far as the complainant is concerned there are material contradictions and improvements in his statement. The complainant in his examination in chief, stated that on 30.10.2012 he made a telephonic call to Deepak Khatri from CBI office and asked if any money was kept at home and then Deepak Khatri reached CBI office with Rs. 3 lacs which he handed over to CBI officials. When he was cross examined by the defence counsel on this aspect, he said that he does not know where Deepak Khatri was on 30.10.2012 and he did not meet him on 30.10.2012 nor Deepak Khatri came to CBI office alongwith him nor he remembers if he made any call to Deepak Khatri and asked him to come to CBI office with Rs.1 lac. Further, in his examination in chief, he is stated that FIR was registered on 30.10.2012 after the arrest of accused. The 40 FIR however shows that it was recorded on 30.10.2012 at 10.00 am. Further there is visible overwriting in the date of the complaint Ex. D-1 at point X, which supports the defence story that the date in the complaint was manipulated. Further, the complainant in his examination in chief stated that when he handed over the bribe amount of Rs.3 lacs to the accused and asked him to count, the accused told that there was no need to count the money and took the money from his left hand and kept it in the dashboard in the front of the seat. The Recovery Memo Ex. D-5 however records another version of this transaction. It records that complainant informed the TLO that after taking and counting the bribe money, the accused had put the same in the dashboard of the car. One of the two has to be incorrect. Further if the version of the complainant given in the Court is considered to be correct that accused took the money in his left hand and kept it in the dashboard without counting, then how the right hand wash of the accused also turned pink. When the accused did not touch the tainted amount with his right hand, then in those circumstances, his right hand wash should not turn pink in the chemical solution. Further, PW-2 stated that CBI official took out the money from the drawer of the dashboard which is contrary to the prosecution story since as per the charge sheet, the bribe money was allegedly taken out from the dashboard by the independent witness PW-8. Surprisingly, PW-7 the other independent witness gave altogether different version of 41 recovery of bribe amount. He stated that when accused felt that he was being followed, he came out of his vehicle and threw away the bribe amount and then, the currency notes were put in the chemical and turned pink. He was declared hostile and was cross examined at length by the prosecution where he admitted the prosecution story, but he again somersaulted in the cross examination by defence counsel. In this cross examination, he stated that he initially went to CBI office on 28.10.2012 and remained there from 11.00 am to 3.00 pm but did not see the complainant and was again asked to come on 29.10.2012. Then he stated that after his apprehension, the accused ran up to 5-10 paces and threw away the currency notes on the spot. Then he again said that he threw away the currency notes in his car and 5-6 team members chased the accused and he saw the accused running out of his car. Further he did not see accused nor he went inside the Crime Branch office on 29.10.2012 when they went to Crime Branch office for verification proceedings. He further stated that before he reached the place of interception of accused, the accused was found apprehended and was outside the car and he was not intercepted in his presence and he reached after gap of sometime, when the other team members had already apprehended the accused. Inspector Shitanshu Sharma told that accused has informed that the bribe money in the dashboard of his car. Accused was about 5-10 feets away from his car when all the proceedings were 42 conducted. These contradictions clearly makes this witness unreliable.
54. Coming to the statement of PW-8, who was the other independent witness. He stated that after reaching Crime Branch office, the accused came in his car and complainant sat in the car of the accused and it started moving and they followed the car of the accused and within 10-15 minutes overtook the car of the accused and the TLO took out the accused from his car and then complainant told that the accused demanded the money which was handed over to him and after checking the money accused kept the same in the dashboard of his car. This witness contradicted PW-7 as far as the recovery is concerned. It is also relevant to mention that PW-7 stated that he reached the spot when the accused was already apprehended,whereas PW-8 stated that accused was apprehended by TLO in his presence. In this regard, the Site Plan Ex. PW-8/C is relevant. As per this Site Plan, none of the independent witness was in that vehicle which overtook the car of the accused and apprehended him, where the alleged transaction took place. As per the Site Plan, there were 4 persons in that vehicle i.e. TLO, driver, Inspector Anand Swaroop and Inspector Nikhil. The two independent witnesses and the remaining CBI team were in the other vehicle, which as per PW-7 reached there after 10-15 minutes when the accused was already apprehended. In these circumstances, how PW-8 reached the spot alongwith the 43 TLO and saw accused being apprehended remains unexplained. Even PW-8 in his cross examination admitted that PW-7 reached the spot after 4-5 minutes. There can not be any time gap of PW-7 and PW-8 reaching the place of apprehension of accused as they both were travelling in the same vehicle with members of CBI team as per Site Plan Ex. PW-8/C. Further PW-8 stated that accused was sitting at the distance of 20 feet on a bench from his car, whereas complainant kept on sitting in the car and alighted the car of the accused after 3-4 minutes and told that accused had demanded money, which was handed over to him by the complainant. Further,as per PW-8 the proceedings regarding hand washes etc. was done while sitting on a bench, which was 20 feet away from the car, whereas TLO PW-11 stated that all the proceedings were done on the bonnet of the car. Further complainant stated that on 29.10.2012, PW-7 along with him went to the Crime Branch office and met the accused whereas PW-7 in his cross examination stated that on 29.10.2012 when he went to Crime Branch office he did not see the accused personally nor did he go inside the office of the Crime Branch with the complainant. It appears that complainant at all times made an effort that independent witness should be present when he meets the accused. The complainant stated that even on 30.10.2012 he asked PW-7 not to come along with him in the car of the accused as the same could have made accused suspicious. This was done 44 by the complainant despite specific instructions to keep PW-7 with him as far as possible and also that accused on 30.10.2012 did not ask PW-7 to not to accompany the complainant in his car. Why the complainant himself asked PW-7 not to come to the car of accused remains unexplained. Further the complainant stated that he visited the CBI office on 29.10.2012 at about 11.00 am. However, his cell location does not support his version. As per PW-5 the mobile phone of the complainant was in Haryana region from 27.10.2012 at 18.45 hours till 29.10.2012 at 11.48 hours and entered Delhi region only at 13.02 hours. This clearly shows till 1.00 pm the complainant was not in Delhi on 29.10.2012. Further prosecution has claimed that accused was having another mobile phone no. 8459032314 from which he called the complainant on 30.10.2012 at 7.05 pm. However, prosecution witness in this regard proved that this mobile phone was used by the complainant himself. PW-9 Mr. Sandeep Singh, who was the registered owner of this mobile number stated that his employer Sohan Gupta took the SIM of this mobile number from him. In the cross examination by defence, this witness admitted that complainant was known to his employer Sohan Gupta as they were engaged in the business of washing and dying clothes and his employer informed that he has given this mobile SIM to the complainant. This witness was not cross examined nor re-examined by the prosecution thereafter and he proved that mobile number 8459032314 was in fact used 45 by the complainant and not by the accused. Further record shows that the complainant made several improvements in his testimony and he was confronted for all of them in his cross examination.
55. Considering these improvements and the contradictions and material variations in the statements of complainant, the two independent witnesses and the TLO, it is very difficult to rely upon them and conviction can not be based on their testimony as it creates sufficient doubts in the prosecution story.
56. On the other hand, accused to the defence witnesses has been able to show that accused was duly investigating FIR No. 233/2012 and the complainant succeeded in derailing the investigation by getting the accused arrested in this case and also by seizure of the original investigation file of that FIR by CBI. DW-7 and DW-9 who were in the team of accused in investigation of FIR No. 233/2012 stated that on 25.10.2012 after 2.00 pm the PC remand of Gagan Deep Khatri was obtained by the accused herein till 30.10.2012. Gagan Deep Khatri was taken to different places for investigation during this period and the accused and the investigation team were never present at the office of Crime Branch from 26.10.2012 to 30.10.2012 during day hours. There is nothing material in the cross examination of these two witnesses to disbelieve them. The accused has been able to show that there was no occasion for him to meet the complainant on 29.10.2012 or before that to make a demand for bribe. Interestingly, 46 prosecution witness PW-6 also supported the defence of the accused. PW-6 was Inspector of Crime Branch and was immediate superior of the accused at that time. He stated that investigation of the FIR No. 233/2012 was with the accused and same was assigned to PW-6 on 30.10.2012 because of arrest of accused. In the cross examination, he stated that on 30.10.2012 accused had informed him that Gagan Deep Khatri has assured to point out the place where the question papers which were subject matter of FIR No. 233/2012 were solved. He also stated that accused was using only one mobile phone at that time i.e. 9891215299. He also stated that original case file of FIR No. 233/2012 was taken by CBI on 30.10.2012 and thereafter there was no progress in investigation for want of file and he filed an application in the Court for returning the case file. The defence witnesses and the statement of PW-6 is sufficient to support the defence of the accused that entire purpose of the complainant was to derail the investigation of FIR No. 233/2012 and to ensure that no further arrest are made in that case.
57. In view of the above discussion, I am of the considered opinion that the prosecution has not been able to prove the ingredients essential for the offences punishable u/s 7 of P.C. Act r/w Section 13(1)(d) r/w Section 13(2) of P.C.Act, 1988 beyond reasonable doubt. The accused is given benefit thereof. The accused Dinesh Dahiya is accordingly acquitted of the charges. The bail-bonds of the accused are cancelled.
47His surety is discharged. The accused has been asked to furnish bail-bonds u/s 437 A Cr.P.C. for a period of six months. The file be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT
ON 03.03.2021 AMIT Digitally signed
by AMIT KUMAR
KUMAR Date: 2021.03.05
15:35:02 +0530
(AMIT KUMAR)
SPECIAL JUDGE, (PC ACT), CBI-04,
ROUSE AVENUE COURTS,
NEW DELHI