Delhi District Court
(I) M. Narsinga Rao vs . State Of Andhra Pradesh, Supreme on 31 May, 2022
1
IN THE COURT OF AMIT KUMAR, SPECIAL JUDGE,
PC ACT (CBI) - 04, ROUSE AVENUE COURTS, DELHI.
CC No. 120/2019
R.C. No. 37(A)/15
CNR No. DLCT11-000534-2019
CENTRAL BUREAU OF INVESTIGATION
VERSUS
DAYA KISHAN
S/o LATE SH. DESRAJ
R/o A-18, GALI NO. 1,
JEMINI PARK, NAJAFGARH ROAD,
NANGALI, SHAKRAWATI,
NEW DELHI-110043
(PUBLIC SERVANT)
(ACCUSED)
Date of Institution : 31.03.2016
Date of Arguments : 21.05.2022
Date of Judgment : 31.05.2022
JUDGMENT
1. This case was registered by the CBI on the basis of complaint dated 05.11.2015 given by Gurinder Chhabra (hereinafter referred as complainant) on the allegations that the complainant is an accused in FIR No. 1164/2015 registered at PS Tilak Nagar, which was investigated by Sub Inspector Daya Kishan (hereinafter referred as accused). The complainant was arrested and sent to judicial custody in that case whereas his son Deepanshu Chhabra and his friends were also accused in that case CC No. 120/2019 Page 1 of 50 2 and their anticipatory bail applications were rejected. The accused herein has demanded a bribe of Rs. 1 Lac for not opposing the subsequent anticipatory bail application of the complainant's son and also threatened that if the complainant failed to pay the demanded bribe, then the accused will ensure that the anticipatory bail is not granted to the son of the complainant and he will be declared as absconder.
2. The complainant did not want to give the bribe and as such lodged the complaint on 05.11.2015 with CBI, ACB, Delhi. The said complaint was verified on 05.11.2015 itself by Inspector Ran Vijay Singh in the presence of independent witness (PW-5) and after verification, the present FIR was registered. As per charge sheet, the trap proceedings were conducted on 06.11.2015 and accused was caught red handed at PS Tilak Nagar after receiving the bribe of Rs. 10,000/- from the complainant. The accused was apprehended and arrested and after completing the formalities like collecting the hand washes, voice samples, CFSL results etc., the present charge sheet was filed on 30.03.2016.
3. My Ld. Predecessor took cognizance of the offences on 31.03.2016 and accused was, accordingly, summoned. After supplying the copies and hearing the arguments on charge, charges were framed against the accused on 18.01.2017 for the offences punishable U/s 7, 13 (2) r/w 13(1) (d) of the PC Act to which he pleaded not guilty and claimed trial.
CC No. 120/2019 Page 2 of 50 34. The prosecution to prove its case examined 14 witnesses, following which statement of accused was recorded. Accused examined one defence witness.
5. The prosecution witnesses can be categorized in four categories as under:
i. Formal witnesses ii. Expert witnesses from CFSL iii. Complainant and independent public witnesses iv. CBI witnesses of verification and trap FORMAL WITNESSES:-
6. Under the category of formal witnesses, prosecution examined PW3, who is Mr. M. Harun, Retired SI, Delhi Police and was posted at PS Tilak Nagar at the relevant time. He stated that on 06.11.2015 at about 5.15 pm, he was in the room of Duty Officer at PS Tilak Nagar when one CBI officer came there and enquired about the SHO and told that accused Daya Kishan has been trapped by CBI while accepting bribe in the police station Tilak Nagar. He was asked to join the search in the office of the accused and accordingly, search was conducted by CBI in his presence in the office room of accused and during that search, one case file of FIR No. 1164/2015, which was investigated by the accused, was seized vide office cum seizure memo Ex. PW3/A. Later on, the original file was obtained from the court and its certified copy Ex. PW3/B was placed on record. He also identified his signatures on Ex. PW8/B and PW8/C, which were the two paper slips recovered from the room of the accused CC No. 120/2019 Page 3 of 50 4 on which "Rs. 10,000/-" was written but stated that he does not know from where these slips were recovered. He was cross-examined by Ld. PP on this aspect where he denied that these slips were recovered from the drawer of the table in the office room of the accused. In the cross-examination by defence counsel, he stated that when he entered the room of the accused, accused was arguing with CBI officials as to why he has been apprehended and that he signed Ex. PW8/B and PW8/C at CBI office.
7. PW4 is Pushpender Kumar, the then DCP, Delhi Police and gave sanction for prosecution of the accused U/s 19 of the PC Act. He admitted his signatures on the sanction order Ex. PW4/B as well as on the forwarding letter written to SP, CBI Ex. PW4/A. In the cross-examination, he stated that he was not provided the file of FIR No. 1164/2015 but clarified that he went through this file in the records available with the Record Keeper. He stated that though he did not receive the entire file from CBI but he went through relevant documents, which were sufficient to accord sanction for prosecution of accused. He denied the suggestion that he was not competent to remove accused from his post.
8. PW7 is Inspector Raj Kumar, the then SHO, Police Station Tilak Nagar and stated that accused was posted as Sub Inspector during his tenure at PS Tilak Nagar. He proved on record the duty roaster dated 07.08.2015 Ex. PW7/A wherein accused was at night emergency duty on CC No. 120/2019 Page 4 of 50 5 that day. He also proved on record the FIR No. 1164/2015 and the DD entry pertaining to marking of the investigation of FIR No. 1164/2015 to the accused. He also proved the duty roaster of 05.11.2015 and 06.11.2015 as Ex. PW7/C and PW7/D. In the cross- examination, he stated that Head Constable Sher Singh (DW1) had informed him that he was in the room of the accused at the time of CBI raid. In the re-examination by Ld. PP, he stated that he might not have informed IO that HC Sher Singh informed him that he was in the room of the accused at the time of CBI raid.
9. PW12 is the Nodal officer from Bharti Airtel Ltd., who produced and proved the customer application form and CDR of Mobile No. 9560598885 from 05.11.2015 to 06.11.2015 as Ex. PW12/2 and PW12/3 respectively, which was in the name of complainant Gurinder Kumar and the certificate U/s 65 B of the Indian Evidence Act as Ex. PW12/1. Nothing important has come out in the cross-examination of this witness except that certificate U/s 65B of the Indian Evidence Act was not drafted by him and he does not have any personal knowledge of the CDR of the present case.
10. PW13 is Mr. Saurabh Aggarwal, the Nodal Officer of Vodafone Mobile Services Ltd., who produced and proved the subscriber details and CDR of Mobile No. 9891059388 as Ex. PW13/C and PW13/D (colly) respectively, which was in the name of accused and the certificate U/s 65 B of the Indian Evidence Act as Ex.
CC No. 120/2019 Page 5 of 50 6PW13/B. Nothing important has come out in the cross- examination of this witness except that certificate U/s 65B of the Indian Evidence Act was not drafted by him and he does not have any personal knowledge of the CDR of the present case nor any technical or operational or maintenance of the knowledge of the server.
11. PW14 is Retired Head Constable Yash Pal Singh, who at that time was posted in CBI and on instructions of the SP, collected the exhibits and their copies from the Physics Division of CFSL and deposited the same with Incharge, Mal Khana and authority letter in his favour was proved by him as Ex. PW14/1. In the cross-examination, he denied the suggestions that he did not collect the exhibits from CFSL or that same were tampered.
EXPERT WITNESSES FROM CFSL:-
12. PW1 is V.B. Ramteke, the Principal Scientific Officer, Chemistry, CFSL, New Delhi, who examined three washes collected by the IO. He gave his report Ex. PW1/A and opined that all the three glass bottles marked as right hand wash, left hand wash and wash of the top left side of the table drawer tested positive for the presence of phenolphthalein powder and sodium carbonate. He also proved on record the envelope in which the three cloth wrappers were kept by him as Ex. P5 and the three wrappers as Ex. P6, P7 and P8. He also proved the three bottles containing solution examined by him as Ex. P9, P10 and P11. In the cross-examination, he stated that he did not receive bottles Ex. P9 to P11 CC No. 120/2019 Page 6 of 50 7 personally in the office. His work sheet was taken on record in the cross-examination as Ex. PW1/D2. He denied the suggestions that the samples were tampered and manipulated or that he has given a false report.
13. PW10 is Amitosh Kumar, Sr. Scientific Officer, Physics, CFSL, New Delhi, who examined the voice samples of the questioned and admitted voices contained in questioned micro SD cards Q1 and Q2 and specimen voice recorded in SD card S1 having sample voice of accused. After examination, he opined that the specimen voice of accused contained in memory card named S1 tallied with the respective questioned voices contained in Q1 and Q2 for which he gave detailed reasoned opinion in his report Ex. PW10/B. He also proved on record the request letter received from SP, CBI as Ex. PW10/A. He also proved on record the SD cards Q1 as Ex. P10-Z1, Q2 as Ex. P10-Z2 and S1 as Ex. P10-Z3. In his detailed cross-examination, he stated that CFSL, New Delhi has not been notified U/s 79 (A) of the Information Technology Act, 2000 but denied the suggestion the same is because CFSL is not an independent body. He admitted that he did not join CFSL as Voice Expert. He denied the suggestion that no rough transcription was received in his office along with the exhibits. He denied the suggestion that memory card, micro SD card and SD card are different things. He did not make any effort to mix the similar words selected from Q2 with 4-5 other voices. He admitted that CFSL is under administrative control of CC No. 120/2019 Page 7 of 50 8 CBI.
COMPLAINANT AND PUBLIC WITNESSES:-
14. PW2 is the complainant Gurinder Chhabra, who partially supported the prosecution case and his complaint and deposed that he had gone to CBI office for making complaint against accused alongwith his friend Sat Pal, who had links in CBI and his friend wrote the complaint and he put his signatures thereon. The said complaint was regarding the demand of bribe made by accused for not opposing the bail applications of his son and two friends. Accused was the IO of the case against his son at PS Tilak Nagar and had demanded bribe of Rs. 10,000/-. He proved his complaint as Ex. PW2/A and also admitted his signatures on FIR No. 1164/2015, PS Tilak Nagar. After the complaint, he alongwith some CBI officials went to PS Tilak Nagar where nothing was done and after seeing the police station from outside, they returned back to CBI office. On that day, one instrument was put in his pocket by CBI officer but he cannot tell the name of that instrument or whether there was anything in the said instrument. He was using mobile no. 9560598885 at that time but he did not make any call from this mobile before proceeding for PS Tilak Nagar except personal calls. On the next day, he again came to CBI office and carried Rs. 10,000/-with him in denomination of Rs. 1,000/- GC notes, which he gave to CBI officer who applied some powder on those notes and gave back the notes to him. He was also asked to call the accused from his phone and CC No. 120/2019 Page 8 of 50 9 he asked the accused to meet him and accused directed him to come to PS Tilak Nagar. He stated that he does not know any person by the name of Sheikh Habibur Rehman (independent witness of verification and trap- PW5). He admitted his signatures on the verification memo Ex. PW2/B. He identified his signatures on the envelope Ex. P1 containing the memory card in its plastic cover Ex. P2. He admitted his signatures on the handing over memo Ex. PW2/C though stated that no writing work was done at CBI office after applying phenolphthalein powder on the currency notes. On that day, they left CBI office at about 12.30 pm and reached PS Tilak Nagar at 2 pm and he made a call to the accused, who replied that he would meet at 5 pm. Again at 5 pm, he made a call to the accused, who replied that he is with ACP. After five minutes, he again called the accused, who told that he is coming in ten minutes and asked the complainant to wait. On that day also, an instrument was also put in his pocket by CBI officer and he was directed not to touch the instrument. At 5 pm, accused came downstairs and took him to his room and started abusing him. One CBI official was also present in that room. In that room, accused told the him to file the bail application of his son to which accused has no objection on which the he took out Rs. 10,000/- from his pocket and put the same on the table of the accused and immediately the CBI officials rushed in that room and sent the complainant out of the room and closed the door CC No. 120/2019 Page 9 of 50 10 of the room and he does not know what happened in that room thereafter and after some time, they all returned to CBI office. That instrument was taken from his shirt pocket by the CBI team while entering the room of the accused. He identified his signatures on the envelope Ex. P3 containing the bribe amount of Rs. 10,000/-. At CBI office, some documents were prepared and he signed the same at the instance of CBI. He identified his signatures on the recovery memo Ex. PW2/D. He does not know whether any voice recording was done at CBI office. After about four months, CBI officers came to his home as he was bed ridden because of an accident and prepared some documents but no CD was played before him. He identified his signatures on voice identification cum transcription memos Ex. PW2/E, PW2/F and PW2/G. The memory cards were played to him in the court but he failed to identify any voice from the recordings. He was declared hostile by the prosecution and in the cross- examination, he admitted that accused was the Investigation Officer in the FIR registered against him, his son and two friends and the anticipatory bail applications of his son and friends were dismissed. He failed to recollect that his complaint Ex. PW2/A was marked for verification to Inspector Ranvir Singh or that verification of his complaint was done in the presence of independent witness Sheikh Habibur Rehman. He denied all the suggestions of Ld. PP in the cross-examination that accused has demanded bribe from him on phone or CC No. 120/2019 Page 10 of 50 11 that independent witness Sheikh Habibur Rehman was with him at the time of verification proceedings. He, however admitted that he has put his signatures on the papers voluntarily, which were not blank and there was no pressure from CBI to sign those papers. In the cross- examination by Ld. Defence counsel, he stated that he went to CBI on the suggestion of his friend Sat Pal, who told that this is the only way by which he can obtain bail of his son. He was having grudge against accused as he opposed the bail application of his son. He was suffering from depression. Accused never demanded any bribe from him and he signed all the documents at the directions of CBI for saving his son and his friends from the criminal prosecution and arrest in FIR No. 1164/2015.
15. PW5 is the independent witness Shiekh Habibur Rehman, who supported the prosecution case throughly. He is a witness of verification proceedings as well as the trap proceedings. He stated that on 05.11.2015, he was called to CBI office and there he met inspector Ran Vijay Singh and 2-3 persons. He was introduced to the complainant and his friend and was told about his complaint. Thereafter, a DVR and memory card were arranged and the verification team went to PS Tilak Nagar where the complainant met the accused in his presence and the complainant told the accused that he would pay him Kharcha Pani and also asked how much, to which the accused did not utter a word but took out a CC No. 120/2019 Page 11 of 50 12 paper slip and wrote the figure of Rs. 10,000/- on it. Thereafter, they returned to CBI office and verification memo Ex. PW2/B was prepared. The conversation between the accused and the complainant was also recorded in the memory card through DVR. On the next day, he again reached CBI office where the trap proceedings were explained and Rs. 10,000/- brought by the complainant were treated with chemical powder and after completing the formalities, they left for PS Tilak Nagar. There, he met the accused alongwith the complainant at around 5 pm and on the asking of accused, complainant handed over Rs. 10,000/- to the accused, which he kept in the top left side drawer of the table. He came out of the room and gave the pre-decided signal and the CBI team immediately entered the office room of the accused and he was caught red handed and the GC notes were recovered and tallied with the numbers recorded in the handing over memo and thereafter, washes were collected by the team and then after completing the formalities, they returned to CBI office where specimen voice of the accused was taken and after completing the formalities, the CBI brass seal was handed over to him which he produced in the court as Ex. P12. Accused was arrested and his personal search was conducted. On 17.12.2015, he was again called at CBI office and then they went to the house of the complainant, who had met with an accident and was unable to come to CBI office and there the voice CC No. 120/2019 Page 12 of 50 13 identification cum transcription memos were prepared. The memory cards were played in the court before him and he identified the conversation recorded in the memory card, which had taken place between the complainant and the accused on the mobile phones as well as in the office room of the accused on 05.11.2015 as well as on 06.11.2015. He also identified the slip recovered from the drawer of the table of the accused on which accused has written Rs. 10,000/- as Ex. PW8/B and PW8/C. He was cross-examined at length where he stated that he know little bit of English. He knows that if he does not support the CBI case, then his department can take action against him. He denied the suggestions that the transcription is a fabricated piece of evidence or that no document was prepared at CBI office on 05.11.2015 or 06.11.2015 or that accused never demanded any bribe from the complainant.
16. PW6 is the second independent witness Mr. Sandeep Malik, who is a witness of the trap proceedings dated 06.11.2015 and supported the prosecution case and identified his signatures on all the documents Ex. PW2/C i.e. Handing over memo, Ex. PW5/A i.e. the arrest memo of the accused, Ex. PW3/A, which is the office search cum seizure memo, voice identification cum transcription memos Ex. PW2/E and PW2/G as well as on the two paper slips Ex. PW8/B and PW8/C. In his cross- examination, he stated that he never spoke to accused and is not familiar with his voice. He denied the suggestion CC No. 120/2019 Page 13 of 50 14 that accused never gave his voice sample in his presence. He did not see complainant talking to the accused. When he entered the office room of the accused, he saw accused held by the CBI officials and heated verbal exchange between them. One more person was present in that office room and was sitting on a cot but he cannot say, if that person was Head Constable Sher Singh. He denied the suggestion that accused has been falsely implicated in this case.
CBI WITNESSES OF VERIFICATION AND TRAP:-
17. PW8 is the Verification Officer Inspector Ran Vijay Singh, who stated that on 05.11.2015, he was asked by SP (CBI) to verify the complaint of the complainant, which was against one Daya Kishan, SI at PS Tilak Nagar regarding demand of bribe of Rs. 1 Lac in order not to declare the son of the complainant as absconder and to facilitate their bail applications in FIR No. 1164/2015. One independent witness PW5 was arranged through Duty Officer and thereafter, one DVR and new memory card was arranged through Care Taker and thereafter, the voice of independent witness was recorded in that memory card through DVR and after explaining the functioning of the DVR, the CBI team left for PS Tilak Nagar. On the way, the complainant was asked to call the accused on mobile to confirm his availability at his office and then, after reaching PS Tilak Nagar, the complainant and the independent witness were asked to go to the office of accused. The DVR in switched on CC No. 120/2019 Page 14 of 50 15 mode was given to the complainant. After about 45 minutes, complainant and independent witness returned back to the CBI vehicle and the DVR was taken from the complainant and the team returned to CBI office. DVR was played which revealed that accused had demanded an amount of Rs. 10,000/- by writing on a piece of paper and by saying that "Ek zero kam kar diya hai" implying thereby that the original demand of Rs. 1 Lac has been reduced to Rs. 10,000/-. After confirmation of the demand, an FIR was recommended. The memory card was taken out from the DVR and was sealed with brass seal and verification memo Ex. PW2/D was prepared.
The SP ordered the registration of FIR and same was marked to Inspector Shitanshu Sharma for laying the trap. On the next day, a trap team was constituted and the trap was laid and accused was apprehended at his office alongwith the trap amount and all washes were collected and office search was conducted wherein the original file of FIR No. 1164/2015 and two paper slips were seized and then, they returned to CBI office. In the cross- examination, he stated that he does not know, if the complainant was personally known to SP, CBI Mr. Anish Parsad. One Sat Pal was with the complainant. He denied the suggestions that no complaint was in existence till the apprehension of accused or that the complaint was fabricated later and accused was implicated in false case. He denied all the suggestions of false implication of the accused.
CC No. 120/2019 Page 15 of 50 1618. PW9 is Inspector Shitanshu Sharma, who was the TLO and supported the prosecution story and the version of PW5. In the cross-examination, he stated that all the guidelines as per CBI manual were duly followed in this case. He denied the suggestions that no FIR or complaint or verification memo was available till the arrest of the accused or that the same have been fabricated after apprehending the accused. He never met any person named Sat Pal. He denied the suggestion that said Sat Pal had acquaintance with the senior officials of CBI. Only accused was there in his room at the time of raid. Head Constable Sher Singh was not in the room of the accused. He denied all the suggestions of false implication or manipulation of documents.
19. PW11 is the IO Inspector Kamal Singh, who took over the investigation on 19.11.2015 and sent all the exhibits to CFSL alongwith the envelopes containing the memory cards and also examined all the witnesses. Later on, he collected the results and exhibits from the CFSL and the documents from PS Tilak Nagar and prepared the voice identification cum transcription memo and filed the charge sheet. In the cross-examination, he denied the suggestions that he did not examine any witness or that he prepared all the statements by copying the contents from the verification memos etc. He denied the suggestion that the memory cards were tampered with the help of Photo Division of CFSL or that transcriptions have been wrongly prepared by him for creating false CC No. 120/2019 Page 16 of 50 17 evidence.
STATEMENT OF ACCUSED:-
20. Statement of the accused U/s 313 CrPC was recorded on 02.04.2022 wherein he stated that he has been falsely implicated in this case. He opposed the bail applications of the complainant and his son and as such, complainant was having grudge against him. The only motive of the complainant was to save his children from arrest. Complainant in collusion with Sat Pal falsely implicated him in this case. Sat Pal was the author of the complaint and after the arrest of the accused, the investigation of FIR No. 1164/2015 stopped and resultantly, the son and the other accused in that case were never arrested and the complainant attained his motive. A false case has been planted upon him and he is innocent.
21. The accused in his defence examined Head Constable Sher Singh as the only defence witness. He stated that on 06.11.2015 he was present in the IO room at PS Tilak Nagar when accused entered that room followed by one public person who sat with accused and while sitting with the accused had some heated arguments with accused. He asked that person to be bit lower in volume. When accused was fetching some file from his almirah, 7-8 persons entered that office room and caught hold of accused and told that they are from CBI. They also asked DW1 to sit down and then to leave the room. Accused never demanded any bribe from that person nor accepted any bribe from that person. After coming out of the room, CC No. 120/2019 Page 17 of 50 18 he came out of the police station premises and informed the SHO about these facts. In the cross-examination, he stated that he worked with accused for about 5-6 months in the year 2015. He cannot tell the particulars of those 7- 8 persons, who entered the office room of the accused. He did not make any complaint in writing to any superior officials regarding apprehension of accused nor he approached the IO of this case to record his statement that accused never demanded nor accepted any bribe in his presence. He denied the suggestion that he is deposing falsely to save the accused.
ARGUMENTS OF LD. PP FOR CBI:-
22. It has been argued by the prosecution that the present case was registered on the basis of complaint Ex. PW2/A, which has been duly proved during the testimony of complainant PW2. The complainant admittedly was an accused in FIR No. 1164/2015, PS Tilak Nagar of which the accused herein was an IO. The accused initially demanded a bribe of Rs. 1 Lac for not opposing the bail application of the son of the complainant. The said bribe amount is duly reflected in the original complaint and the complainant has admitted his signatures on this complaint as well as the fact that he approached the accused to help him in the bail of his son and the friends of his son. The prosecution thus has proved the motive of the accused for demanding the bribe. The demand has also been duly proved through the testimony of independent witness PW5, who has throughly supported CC No. 120/2019 Page 18 of 50 19 the prosecution case and has also been proved through the recorded conversation between the complainant and the accused, which was held in the presence of PW5 and despite the complainant, being hostile on certain aspects, the testimony of PW5 and tape recorded conversation duly reduced in transcript proves the demand on the part of the accused. The prosecution has also proved the ingredient of acceptance of bribe through the oral as well as scientific evidence. Both the independent witnesses i.e. PW5 and PW6 have supported the prosecution case and the scientific evidence of chemical examination of the washes as well as the comparison of recorded conversation proved that the accused after his initial demand of Rs. 1 Lac, reduced the demand to Rs. 10,000/-
and accepted this bribe from the complainant and was caught red handed in his office. The two receipts on which accused himself had written Rs. 10,000/- were also recovered from the office of the accused in the presence of independent witnesses as well as the other members of the trap team and the same proved beyond doubt that accused had accepted the bribe amount from the complainant. It was argued that though the complainant turned hostile on certain facts but his complete testimony cannot be brushed aside and the relevant facts where he had supported the prosecution case can always be considered. The prosecution has also proved the sanction accorded U/s 19 of the PC Act for prosecution of the accused through the testimony of PW5 and as such, all CC No. 120/2019 Page 19 of 50 20 the necessary ingredients of demand, acceptance and motive have been duly proved by the prosecution and there is no reason to disbelieve the statement of two independent witnesses, who have supported the prosecution case only because of an office circular issued by Central Vigilance Commission to the effect that action should be taken by the department concerned, if a Govt. servant turned hostile. It was argued that this circular is meant to deter the public servant, who are witnesses to the CBI case to not to turn hostile for ulterior reasons and this circular does not pressurize them to support the prosecution case and has been issued only to ensure that the witnesses tell true facts before the court. It was also argued that the accused has failed to rebut the presumption against him U/s 20 of the PC Act and even the testimony of defence witness is of no help to the accused as the witness is unreliable and is an ex- colleague of accused and further there is no material placed on record by DW1 or the accused to show that the defence witness approached any higher authority, court or any other forum to protest against the alleged false implication of the accused in this case. It is prayed that the prosecution has duly proved its case and accused should be convicted for the commission of the offences charged for.
23. Ld. PP in support of his submissions, has relied upon following judgments:
(i) M. Narsinga Rao Vs. State of Andhra Pradesh, Supreme CC No. 120/2019 Page 20 of 50 21 Court 2001 Crl. Law Journal 515.
(ii) C.M. Sharma Vs. State of Andhra Pradesh, (2013) 2 SCC (Crl.) 89.
(iii) Madhukar Bhaskar Rao Joshi Vs. State of Maharastra, 2000 AIR SCW 4018
(iv) Kehar Singh Vs. State of Delhi, AIR 1988 SC 1883
(v) Krishna Mochi & Ors. Vs. State of Bihar, 2002 CRL.L.J.2645
(vi) State of UP Vs. M.K. Anthony, AIR 1985 SC 48
(vii) Tahir Vs. State, Appeal (crl.) 835 of 1995 dt. 21.03.1996
(viii) State of Tamil Nadu Vs. Nalini, 1999 Crl. SC 3124
(ix) Chaman Lal & Ors. Vs. State of Punjab, Criminal Appeal No.1174 of 2003 dated 31.03.2009
(x) Koti Laxman Bhai Vs. State of Gujarat, AIR 2000 SC 1720
(xi) Gura Singh Vs. State of Rajasthan, 2001 Crl. LJ SC 487
(xii) Vinod Kumar Vs. State of Punjab, Crl. Appeal No. 554/2012 dated 23.09.2014 SC
(xiii) State of UP vs. Naresh & ors.
(xiv) T.Shanker Prasad vs. State of AP 2004 CRL.L.J. 884
(xv) State Govt. of NCT of Delhi vs.Sunil (SC) Criminal Appeal Nos.1119-1120 dated 29.11.2000 (xvi) S.C.Goel vs. The State (through CBI) DHC Crl.A.No.47/2008 dated 11.02.2011.
ARGUMENTS ON BEHALF OF THE ACCUSED:-
24. Ld. Defence counsel on the other hand has submitted that the prosecution is required to prove its case beyond reasonable doubt whereas the accused has to prove his defence only on preponderance of probability. The prosecution has failed to prove recovery of any paper slip allegedly written by the accused. There are material variation and contradictions in the documents and the statement of witnesses regarding recovery of two paper CC No. 120/2019 Page 21 of 50 22 slips. It was argued that none of the witnesses in the statement recorded U/s 161 CrPC have mentioned about recovery of two paper slips. In the office cum seizure memo, the paper slips were added later on at point 1A and 1B and prosecution witness PW3 had clearly stated that point 1A and 1B were not mentioned when he signed the office search memo Ex. PW3/A. The witnesses are not sure as to whether one paper slip or two paper slips were recovered and from where. The witnesses have claimed that the same were recovered from the drawer of the table of the accused whereas PW9, who was the TLO, had stated that the same were recovered from the almirah of the accused as per office search memo Ex. PW3/A, which is contrary to the rough site plan Ex. PW9/A wherein it is shown that two paper slips are recovered from the table drawer. It was argued that the complainant turned hostile and did not support the case of the prosecution regarding demand or acceptance on the part of the accused. The tape recorded conversation cannot be relied upon as the complainant denied any such conversation and PW5, who did not know the accused before this case, is not competent to identify the alleged voice of accused. The report of the Scientific Officer, who examined the voices, cannot be relied upon as the memory cards reached him as per his report with the seal of PK Gottam + CFSL / CBI and prosecution has failed to prove that where and by whom this seal was appended on the memory cards mark Q1, Q2 and S1 allegedly CC No. 120/2019 Page 22 of 50 23 containing the recorded conversation and the specimen voice of the accused and therefore, the tampering cannot be ruled out. There are material improvements in the statement of PW5 and he cannot be called as a reliable witness and otherwise also cannot be relied upon, being a stock witness. The prosecution did not make Sat Pal Malik a witness, who was the person, who wrote the complaint Ex. PW2/A and was also a witness to the verification proceedings as the same would have exposed this false prosecution case. The only motive of the complainant to lodge this complaint was to save his son and his two friends from arrest in FIR investigated by the accused for which this false complaint with CBI was lodged and the complainant achieved his goal since the CBI seized the original file of FIR 1164/2015 because of which the investigation in that case stopped and remained stalled till the original file was obtained by the SHO concerned after couple of years. The prosecution has failed to prove that there was any initial demand of Rs. 1 Lac, which was allegedly reduced to Rs. 10,000/-. The requisite certificate U/s 65 B for the recorded conversation was not filed and the original recordings were never placed before the court. The expert did not examine the DVR and the prosecution could not prove that the recording was done through DVR in a memory card. No record of the Mal Khana of CBI was proved to show that when these memory cards were deposited in the Mal Khanna and when the same were sent to CFSL.
CC No. 120/2019 Page 23 of 50 24There is a gap of almost three months in sending the memory cards to CFSL and the same creates doubts regarding the genuineness of the memory cards. The sanction was mechanically granted without considering the relevant documents. Prosecution has failed to prove that who took the memory cards to the CFSL and who brought them back. Even otherwise, the recording is only a corroboratory evidence and not primary evidence and prosecution has failed to prove its case as required whereas the accused has proved his defence and accused is entitled to be acquitted.
25. Ld. Defence counsel in support of his submissions, has relied upon the following judgments:
(i) Anand Ram Chandra Chougle Vs. Sidarai Laxman Chougle, Crl. Appeal No. 1006/2010 dated 06.08.2019 (Supreme Court)
(ii) State of Karnataka Vs. Sidarai Laxman Chougle, Crl. Appeal No. 1007/2010 dated 06.08.2019 (Supreme Court)
(iii) State of Karnataka Vs. Amir Jaan, 2008 Crl LJ 347 SC
(iv) Ashok Kumar Aggarwal Vs. CBI, 2007 (10) AD Delhi 73
(v) K.C. Singh Vs. CBI, 2011 ILR DLH 21-3545
(vi) V. Venkata Subha Rao Vs. State, 2007 Crl LJ 754
(vii) Arjun Pandit Rao Khotkar Vs. Kailash Kushan Rao Gorantyal, Civil Appeal No. 20825-20826 of 2017 dated 14.07.2020 (SC)
(viii) Jitender Pal Singh Vs. Kishan Kishore Bajaj, CRM-M-37435 of 2018 dated 29.10.2018 (Punjab and Haryana)
(ix) National Insurance Co. Ltd. Vs. Pranay Sethi & Ors., 2017 (4) RCR (Civil) 1009
(x) Anwar PV Vs. PK Bashir & Ors., 2014 10 SCC 473
(xi) Ram Singh & Ors Vs. Col. Ram Singh, AIR 1986 SC 3 CC No. 120/2019 Page 24 of 50 25
(x) Nilesh Dinkar Paradkar Vs. State of Maharastra, 2011 4 SCC 143
(xi) Anurag Vardhan Vs. CBI, 105 (2003) DLT 594
(xii) Dola @ Dola Govinda Pradhan & Anr. Vs. State of Orissa, Crl Appeal No. 1095 of 2018 dated 29.08.2018 (SC)
(xiii) S.K. Singhal Vs. CBI, 199 (2013) DLT 690
(xiv) Inspector of Police, T.N. Vs. Palanisamy @ Selwan, Crl.
Appeal No. 177 of 2003 dated 01.10.2008 (SC)
(xv) P. Satyanarayana Murty Vs. The District Inspector of Police, Crl. Appeal No. 31 of 2009 dated 14.09.2015 (xvi) Kishan Chand Verma Vs. State, Crl. Appeal No. 788 of 2000 dated 04.07.2019 (Delhi High Court) (xvii) Yudhister Singh Vs. State of MP, 1971 (3) SCC 436 (xviii) Rudhrappa Ramappa Jainpur Vs. State of Karnataka, 2004 (2) JCC 1172 (xix) Pitabash Lohara Vs. State of Orissa, 2011 (4) Crimes 196 (xx) G.V. Nanjundiah Vs. State, AIR 1987 SC 2402 (xxi) Suraj Mal Vs. State, AIR 1979 SC 1408 (xxii) Roshan Lal Saini Vs. CBI, 2011 (1) JCC 102 (xxiii) N. Vijay Kumar Vs. State of Tamil Nadu, Crl Appeal No. 100- 101 of 2021 dated 03.02.2021 (xxiv) Varkey Joseph Vs. State of Kerela, 1993 Crl LJ 2010 (SC) (xxv) Smt. Meena Balwant Vs. State of Maharastra, 2000 Crl LJ 2273 (xxvi) M. K. Harshan Vs. State of Kerela, 1 (1996) CCR 218 (SC) (xxvii) Pyare Lal Vs. State, 1 (2008) DMC 806 (xxix) V.D. Jhingan Vs. State of UP, AIR 1966 Supreme Court 1762 (xxx) Prem Singh Yadav Vs. CBI, 2011 (2) JCC 1059 (xxxi) T. Subhramanian Vs. State of Tamil Nadu, 2006 1 SCC 401 (xxxii) Swinder Singh Vs. State of Punjab, AIR 1992 SC 669 FINDINGS:-
26. As far as the Sanction is concerned, Ld. defence counsel CC No. 120/2019 Page 25 of 50 26 has argued that the sanctioning Authority did not examine the complete material record and therefore, had no occasion to apply its mind and the sanction is bad in law. PW4 is the Sanctioning Authority and has proved on record the Sanction Order Ex. PW4/B. In the cross-
examination, he stated that he was not provided the file of FIR NO. 1164/2015 but he volunteered that he had gone through that file with the record available with Vernacular Record Keeper. He stated that besides verification report, no document with respect to recorded conversation between the accused and the complainant was provided to him but he clarified that he had mentioned the documents perused by him in the sanction order. The said sanction order is elaborate and in detail. The sanction order Ex. PW4/B mentions the documents considered by PW4 after which he accorded the sanction. He also clarified in the cross-examination that though entire record was not received, but he had gone through the relevant documents, which were sufficient to accord the sanction for prosecution of accused. Considering the deposition of this witness and the detailed sanction order, I do not find any reason to hold that the sanctioning authority did not have sufficient material to apply its mind to the request of according sanction. The sanction therefore is held to be proper and valid.
27. Otherwise also, even if the complete record was not sent to the sanctioning authority, the same is not fatal to sanction, if the sanctioning authority had sufficient CC No. 120/2019 Page 26 of 50 27 material to apply its mind to the issue of sanction. In this regard reliance can be placed on the judgment of Hon'ble Supreme Court in the case titled as Indu Bhushan Chatterjee Vs. The State of West Bengal, AIR 1958 SC 148 where the apex court held that even if the sanctioning authority did not call for complete record in connection with the matter from the office, yet the sanction granted cannot be held to be invalid as it was not for the sanctioning authority to judge the truth of the allegations made in the record. The paper placed before sanctioning authority apparently gave it the necessary material upon which the authority accorded sanction, which can be seen from the detailed sanction order itself. The Hon'ble Supreme Court held that the sanction order in that case clearly states all the facts, which concern the prosecution case and the sanction is valid.
28. Coming to the two paper slips stated to be recovered from the office of the accused, I find force in the contention of Ld. Defence counsel that there are material contradiction qua recovery of these two paper slips and prosecution has failed to prove beyond reasonable doubt that the slips were recovered during the office search of the accused. Record shows that recovery of these two paper slips have been inserted in the office search cum seizure memo Ex. PW3/A at point 1A and 1B. The prosecution witness PW3, who was the then SI posted at PS Tilak Nagar has clearly stated that this insertion at point 1A and 1B was not there when he signed this CC No. 120/2019 Page 27 of 50 28 document at police station Tilak Nagar. He also stated in his examination in chief that he signed these slips at CBI office and he does not know from where these documents have been brought by the IO. Though he was cross- examined on this aspect by prosecution but despite that it could not be proved that PW3 was concealing truth on this aspect. Further, the most reliable witness of the prosecution PW5 stated in his examination in chief dated 27.11.2017 at page 10 that the paper slip on which accused had written Rs. 10,000/- was found and taken out and that too from the office drawer of the table of the accused. How this one paper slip became two paper slips remains a mystery. Further, the place of the recovery of these paper slips is also doubtful. The independent witnesses PW5 and PW6 have stated that the paper slip(s) were recovered from the drawer of the office table of the accused as also shown in the site plan Ex. PW9/A. However, the office search cum seizure memo Ex. PW3/A shows that these two slips were recovered from the office almirah of the accused and the TLO PW9 stated that the paper slips were recovered from the almirah and not from the drawer of the table as shown in the site plan. These contradictions regarding the place of recovery as well as the number of slips coupled with the fact that despite the specimen handwriting of accused being obtained in this regard, the expert could not express any opinion regarding authorship of these two paper slips Ex. PW8/B and Ex. PW8/C, the prosecution CC No. 120/2019 Page 28 of 50 29 cannot rely upon these two paper slips.
29. Coming to the aspect of demand and acceptance, Ld. Defence counsel had argued that the prosecution has failed to prove that there was any demand, which is essential ingredient of the offence punishable U/s 7 r/w 13(1)(d) of the PC Act. He had argued that the complainant turned hostile and the independent witness PW5 cannot be relied upon, being a stock witness as well as an interested witness, being a Govt. official and further because he made material improvements in his testimony. In this regard, he relied upon the judgment of Hon'ble Supreme Court passed in Crl. Appeal No. 31/2009 dated 14.09.2015 titled as P. Satyanarayana Murti Vs. The District Inspector of Police and G.V. Nanjundiah Vs. State, AIR 1987 SC 2402. As far as the statement of the complainant PW2 is concerned, the same cannot be totally effaced only because he was declared hostile and cross examined on certain aspects by the prosecution. The relevant portion of his testimony where he supported the prosecution story can be considered and there is no bar in relying upon his testimony to that extent. Reliance in this regard can be placed on the judgment of Hon'ble Supreme Court passed in Bhagwan Singh Vs. State of Haryana, (1976) 1 SCC 389 and Khuji @ Surender Tiwari Vs. State of Madhya Pradesh, (1991) 3 SCC 627. In the present case, the complainant did not disown his signatures on his complaint Ex. PW2/A. Rather, he stated that the said complaint was CC No. 120/2019 Page 29 of 50 30 regarding the demand of bribe made by accused for not opposing the bail application of his son and his two friends. He also stated that accused demanded bribe of Rs. 10,000/- though he withdrew this statement by saying that accused did not demand bribe rather he offered money to accused. He admitted that he was using Airtel mobile No. 9560598885 at the relevant time. The call detail records of this mobile number and the mobile number of the accused 9891059388 proved that they both have spoken to each other on 05.11.2015 and 06.11.2015 at the relevant time and intervals as claimed in the charge sheet. Complainant admitted that after the conclusion of verification proceedings, he was asked to bring Rs. 10,000/- in cash which he brought to CBI office on the next day. This clearly shows that there was some conversations between the complainant and the accused for the amount of Rs. 10,000/- on the day of verification. Had there being no discussion between complainant and accused regarding the figure of Rs.10,000/- on 5.11.2015, there was no reason to bring the exact amount by complainant on next day. He admitted that he was asked to call accused on phone and he made call to the accused, who asked him to come to PS Tilak Nagar. He admitted that when he visited PS Tilak Nagar on 05.11.2015, which was the day of verification proceedings, an instrument was put in his pocket by CBI officer. He also identified his signatures on the plastic cover (Ex. P2) containing the memory card used during the verification CC No. 120/2019 Page 30 of 50 31 proceedings as well as on the brown envelope (Ex. P1) in which this memory card was sealed. He admitted his signatures on verification proceedings, pretrap memo and in fact, on all the documents though he claimed that he does not know what was written on those documents yet admitted that he signed those documents without any pressure and of his own. He also admitted that even on the day of trap, an instrument was put in his pocket while leaving the CBI office and this instrument was taken back from him when CBI team entered the room of the accused after the transaction. In the cross-examination by Ld. Prosecutor, he admitted that on 05.11.2015, he had gone to CBI office for making complaint Ex. PW2/A, which was marked for verification by the SP, CBI to some Inspector. He admitted that on 05.11.2015, he along with CBI official went to PS Tilak Nagar and on the way, he called the accused to ascertain his availability at PS Tilak Nagar and one person whose name he does not remember had gone inside the police station with him. As per prosecution case, the said person was PW5 Sheikh Habibur Rehman though the complainant could not recollect the name. He admitted that the said instrument given to him by CBI officer was with him when he entered the room of the accused and in that room, conversation took place between him and the accused regarding anticipatory bail application of the son of the complainant and accused assured that he will help the complainant in getting bail of his son. This clearly shows CC No. 120/2019 Page 31 of 50 32 that the complainant supported the prosecution case as far as the fact that the verification was done in the presence of one independent witness where accused admitted to help the complainant in securing bail for his son. It was for the accused to explain as to why he agreed to help the complainant despite the fact that he was the investigating officer of the FIR lodged against the complainant and his son. Complainant admitted that around 4.50 pm, he left the office of the accused along with the other person and then they returned back to CBI office. That instrument was taken back from him by the CBI officer outside PS Tilak Nagar. He identified the said instrument in the court and the DVR was exhibited as Ex. P4. He admitted that he signed the papers, which were not blank and signed voluntarily. This clearly shows that on 05.11.2015, the complainant had met the accused with DVR in his pocket and there was conversation between the complainant and the accused in the presence of an independent person wherein the accused agreed to help the complainant and at CBI office, the complainant signed the documents (verification memo) voluntarily.
30. Complainant further admitted that on 06.11.2015, he came to CBI office with Rs. 10,000/- and the independent witness was also there and his complaint Ex. PW2/A was shown to all the 8-10 persons present there. He admitted that on 06.11.2015 before leaving CBI office, he signed certain papers without any pressure. He admitted that after reaching police station Tilak Nagar on that day, the CC No. 120/2019 Page 32 of 50 33 instrument was kept in his pocket in switch on mode and thereafter, he along with the independent witness entered the office of the accused. The accused was not there in his office and was contacted on phone and accused told that he will come at 5 pm and then again at 5.15 pm, the complainant along with the independent witness and the instrument in his pocket went to the office of the accused. Accused reached there after a while and then they entered his room and accused was annoyed with the complainant for calling him again and again. He admitted that after some time, CBI officers entered the room of the accused and that instrument was taken from him. He also admitted that at about 7.30 pm, CBI team along with accused returned to CBI office and at CBI office, complainant signed certain papers and left in the midnight around 1.30 am. He also admitted that after about four months of this incident, CBI officer along with the person, who had accompanied him to the office of the accused on 06.11.2015, came to his house with the laptop and CD though he denied that any such CDs were played to him. All these facts admitted by complainant in his cross examination by Ld. PP can be considered. It is also relevant to mention that the complainant tried to evade certain questions of Ld. PP during his cross- examination by answering that he does not remember. The cross-examination will show that he has categorically admitted above mentioned facts and categorically denied certain facts regarding demand and CC No. 120/2019 Page 33 of 50 34 acceptance of bribe by the accused but evaded answers of certain questions purposely. He stated that he does not remember, if the independent witness namely Sheikh Habibur Rehman was called to accompany him. He does not remember, if accused was present in his office on 05.11.2015 when he entered his office. On the other hand, he admitted that he had conversations with the accused in his office regarding bail of the son of the complainant. He does not remember whether he told accused as a strategy that the amount returned by the accused on paper slip is Rs. 1 Lac to make accused speak something. He does not remember if the independent witness told that the amount written by the accused as Rs. 10,000/- having four zeros. He does not remember if accused confirmed the same by saying that "ek zero kam likh raha hoon". He does not remember if the conversation between him and the accused was recorded in the instrument given to him by the CBI. He did not remember, if the numbers of the GC notes brought by him, were noted on a paper. He does not remember in which pocket of his the GC tainted notes were kept. This all clearly shows that the complainant, who was declared hostile, had supported the prosecution case to the effect that he visited the office of the accused at PS Tilak Nagar on 05.11.2015 alongwith an independent witness with an instrument in his pocket and on that day, he had conversation with the accused regarding the bail of the son of the complainant and accused agreed to help the CC No. 120/2019 Page 34 of 50 35 complainant. Complainant also supported the prosecution story that the complainant visited CBI office again on 06.11.2015 with Rs. 10,000/- and then they again visited the office of the accused where he again entered the office of the accused with the same independent witness with an instrument and Rs. 10,000/- tainted money in his pockets. The prosecution has proved these facts through the primary evidence through the testimony of the complainant despite complainant being hostile. Ld. Defence counsel had argued that even this portion of the testimony of the complainant cannot be relied upon as in the cross-examination conducted by him, the complainant stated that he did not meet the accused on 05.11.2015 and his statement recorded on 29.03.2017 that he went to his residence after seeing PS Tilak Nagar from outside on 05.11.2015 is correct. It was also argued that the complainant stated that he could not understand the questions his cross-examination dated 20.07.2017 by the PP. I do not find any force in this argument since the complainant is a smart witness and in the cross- examination by Ld. PP, he admitted certain facts and categorically denied certain questions relating to demand and acceptance and stated that he does not remember certain facts. This clearly reflects that complainant understood all the questions clearly and choose to admit, deny and give evasive answers as per his choice. Otherwise also, in the reexamination by Ld. PP, PW2 admitted that all the questions during his examination in CC No. 120/2019 Page 35 of 50 36 chief and cross-examination were put to him in Hindi and he understands Hindi language and signed only after reading the same. So, there is no force in the argument of Ld. Defence counsel that no part of the testimony of PW2 can be relied upon. As far as the judgment passed in P. Satyanarayana Murthy (supra) relied upon by Ld. Defence counsel is concerned, in that case complainant died before his testimony in court and the independent witness did not mention about demand by accused in his deposition before trial court and in those circumstances Hon'ble Supreme Court held that prosecution failed to prove the demand. It was not held is this judgment that prosecution must prove even the initial demand made before lodging complainant, as argued by ld. Defence counsel. As far as the present case is concerned, PW-5 has specifically mentioned about demand made by accused in his presence.
31. Coming to the statement of PW5, Mr. Sheikh Habibur Rehman, who has throughly supported the prosecution case. I find no reason to disbelieve this witness only because he was a Govt. servant. He was not under any compulsion, as argued by defence, to support the prosecution case only because of an office circular issued by CVC asking Govt. servants to support the CBI case. A perusal of this office order no. 73/12/2005 issued by CVC, Govt. of India shows that vide this circular, the public servants have been warned not to turn hostile for ulterior reasons. The important words are for "ulterior CC No. 120/2019 Page 36 of 50 37 reasons". This circular nowhere says that the public servants should support the CBI case to the extent of deposing incorrect facts. There appears to be no compulsion to Govt. servants to support CBI case if they have not witnessed a fact. Same is incorrect interpretation of this circular. PW5 had clearly deposed that on 05.11.2015, he reached CBI office and was introduced to the complainant and his friend and was informed about the complaint against the accused demanding bribe and thereafter, a DVR and memory card was arranged and they reached police station Tilak Nagar and he entered the office of the accused where the complainant had conversation with the accused and the accused did not utter a word deliberately except by writing Rs. 10,000/- on a paper and during that conversation, the accused got annoyed with the complainant as to why the complainant is pleading so much as if he is recording something and then they came out of his office and returned to CBI office and left with instructions to the complainant to bring Rs. 10,000/- on the next day. This witness was also a witness of the trap proceedings on 06.11.2015 and also supported the prosecution case. There is nothing in his cross- examination to disbelieve his case and there is no reason to discard this primary evidence only because there are certain minor variations in his statement. Though Ld. Defence counsel has argued that this witness cannot be relied upon because of material improvements and CC No. 120/2019 Page 37 of 50 38 contradictions, but I do not find any force in his submission as there are only minor variations. The minor variations that are not mentioned in his statement recorded U/s 161 Cr.P.C. Ex. PW5/DA are that complainant and accused had discussed the bail application of the son of the complainant and complainant asked the accused to file favourable report, it is not mentioned in his statement that complainant said to accused that he would pay him "Kharcha Pani", it is not mentioned in his statement that the accused asked about the identity of PW5 from the complainant to which the complainant replied that PW5 is his customer, it is not mentioned in his statement that complainant started pleading with the accused to do favour in the bail application of complainant's son and the accused got angry and said that is he recording his voice, it is not mentioned in his statement that the complainant once more requested the accused regarding the date of hearing of the bail application, it is not mentioned in his statement that on the instructions of TLO, the number of GC notes were noted on a paper, it is not mentioned in his statement that the complainant after speaking to accused informed that accused will be available in his office between 2 to 2.30 pm, it is not mentioned in his statement that complainant told the accused that he has brought the thing as discussed previous day and thereafter on the asking of accused, complainant kept the amount in the left hand of accused (though it was CC No. 120/2019 Page 38 of 50 39 mentioned in the statement Ex. PW5/DA that the complainant took out the tainted money from his right side pant pocket and extended towards accused, who accepted the same with his left hand and kept the same on the left side drawer of his table), it is not mentioned in his statement that when CBI official asked the accused about the money and the accused indicated from his eyes as to where the money was kept, it is not mentioned in his statement that uniform of the accused was also sealed, it is not mentioned in his statement that statement of accused was also recorded. All these facts are minor variations and cannot be called as material improvement or contradiction. Otherwise also a person is not supposed to remember narration of facts verbatim after lapse of time and in case he does so, he is again named as tutored witness. So PW-5 cannot be said to be unreliable witness because of minor variations. Further, the witness cannot be called as a stock witness only because he had been a CBI witness long back in another case. In the case relied upon by defence titled as G.V. Nanjundiah (supra),the independent witness was witness in 3-4 cases earlier and was also working in same office with other independent witness and in those circumstances Hon'ble Supreme Court held that witness can not be said to be independent. PW-5 does not fall in similar category.
32. Apart from PW5, the second independent witness PW6 Sandeep Malik has also supported the prosecution story as far as the recovery of money and collection of washes CC No. 120/2019 Page 39 of 50 40 are concerned. PW6 is the witness of trap proceedings, who remained with the members of the CBI team at the time of transaction of bribe. He stated that on 06.11.2015, he reached CBI office and he was informed about the complaint of PW2 regarding demand of money by the accused posted at PS Tilak Nagar and at that time, PW5 and the complainant were also present amongst other members of the raiding team. Thereafter, after completing the formalities, they left for PS Tilak Nagar in CBI vehicles and the complainant and PW5 went inside PS Tilak Nagar whereas he along with other team members remained outside at some distance. After 10-15 minutes, they both returned and informed that accused is not there in the police station and complainant told that he had called the accused, who asked the complainant to come at about 5 pm. Again at 5 pm, the complainant with PW5 went inside police station and after 10 minutes, PW5 came out of the room and gave pre-decided signal to the TLO and they all entered that room in police station. There were some arguments going between the accused and the complainant and the TLO asked them to keep quiet. The complainant and PW5 informed that accused has kept the money in the left side top drawer of his table and he recovered that money and tallied the numbers of GC notes with the numbers noted down on a paper at CBI office and the same tallied. The hand washes of the accused as well as the top left drawer of the table were taken. The DVR was also taken back from the CC No. 120/2019 Page 40 of 50 41 complainant and they returned to CBI office. At CBI office, the specimen voice sample of the accused and both the independent witnesses was taken and the memory card was played and was sealed. The memory cards were played in the court and the witness identified his voice as well as the voice of other independent witness. In the cross-examination of this witness, there is nothing material to disbelieve his version except that he admitted that one more person was present in that room and was sitting on a cot when CBI team entered the room of the accused. This witness, therefore, has proved the aspect of recovery from the drawer of the table of the accused. It is also relevant to mention that all the other members of the raiding team, who as per record are the CBI officials, have supported the prosecution case.
33. Coming to the electronic evidence i.e. Memory Cards and the transcripts, Ld. Defence counsel had argued that the prosecution failed to prove the recordings as no certificate under Section 65B of the Indian Evidence Act was placed on record nor the prosecution could prove that the Memory Cards Q1 and Q2 have the original recordings. It was argued that the complainant PW2 was the best person to recognize the DVR and he failed to recognize it. Further, the CFSL expert PW10 did not examine the DVR and in absence thereof, prosecution failed to prove that Q1 and Q2 contained original recordings and in this regard relied upon the judgment of Arjun Panditrao Khotkar (supra). It was also argued that CC No. 120/2019 Page 41 of 50 42 the prosecution failed to prove the conditions laid down in Ram Singh & ors. vs. Col. Ram Singh (supra). A perusal of the record shows that the complainant initially did not identify the DVR but in his cross examination by Ld. PP he not only identified the DVR as Ex.P4 but also admitted that he carried the DVR with him on the date of verification as well as on the date of trap. This statement of PW-2 in cross-examination by Ld. PP as already discussed is admissible. As far as the primary evidence regarding the recordings in Q-1 and Q-2 is concerned, Ld. PP has rightly argued that PW5 who was independent eye witness of the verification and the trap proceedings had not only identified his signatures on the sealed Memory Cards and the envelopes but also identified the voices contained in the recordings in the Memory Cards Q1 and Q2. The Memory Cards were played to PW5 in the court and he identified all the voices contained in those conversations as that of complainant, accused and his own voice at some places. It is important to mention here that this conversation had taken place in the presence of PW5 and there is no force in the argument of defence counsel that PW5 was not competent to identify the voices of the complainant and the accused as he was not familiar with their voices. Once the conversation had taken place in the presence of PW5, and the memory cards were sealed in his presence, he was competent to identify those voices being primary witness/evidence of those recordings. I find no force in the contention of the CC No. 120/2019 Page 42 of 50 43 Ld. Defence counsel that the prosecution could not prove the voices and recordings in Memory Cards Q1 and Q2 for non examination of the DVR by PW10 or that same is hit by section 45A of Indian Evidence Act . Q1 and Q2 are the original Memory Cards and the recordings therein were duly identified and proved on record by PW5 and the same is admissible piece of evidence. Complainant also admitted his signatures on cover of memory card as well as on envelope in which it was kept and sealed. The judgment of Arjun Panditrao Khotkar (supra) is of no help to the accused as primary evidence i.e. the recordings in the original Memory Cards have been proved on record, which does not require a certificate under Section 65B of the Indian Evidence Act. The conditions laid down by Hon'ble Supreme Court in the case of Ram Singh vs. Col. Ram Singh (supra) stands duly complied in the present case.
34. As far as the argument of tampering in the recording is concerned, record shows that the Memory Cards were received by PW10 in the Physics Division with the seal of "PK GOTTAM+CFSL/CBI". Ld. Defence counsel argued that the prosecution could not explain that how the seal of CBI allegedly appended while sealing the Memory Cards changed to the seal of "PK GOTTAM+CFSL/CBI". Record shows that vide letter Ex.PW11/A written by SP, CBI to Director, CFSL, the Memory Cards Q1, Q2, S1 and DVR were sent for preparing five copies each of Memory Cards for the CC No. 120/2019 Page 43 of 50 44 purposes of the investigation. In the remark column of the table in this letter, it is mentioned that all the Memory Cards are sealed with the seal of CBI. Later on, when the investigation copies were prepared, a letter was written by the Director, CFSL to SP (CBI) to collect the exhibits and the copies. In pursuance to that letter, SP, CBI authorized PW14 vide authority Letter Ex.PW14/1 to collect the exhibits and the copies from the Photo Division of CFSL. It is mentioned in this letter that the same has to be collected from PK Gottam, SSO-1(Photo) CFSL. This letter clearly reflects that copies of the exhibits were prepared by Mr. PK Gottam working as SSO-1 in Photo Division of CFSL and he appended his seal on the exhibits after preparing the copies and for this reason the exhibits received by PW10 in Physic Division for forensic examination had the seal of "PK GOTTAM+CFSL/CBI". In these facts, it can be said that the exhibits were not tampered and the prosecution has explained as to when and how the seal of CBI changed to that of PK Gottam on the exhibits containing Memory Cards.
35. Coming to the another relevant aspect i.e. contents of the recording. The recordings were played in the court and the transcripts of the said recordings were also proved in the court. The transcript of the conversation dated 05.11.2015 of the verification proceeding Ex.PW2/F reflects that the accused had spoken the words "ek zero kam karke likh raha hu, ek lakh tujhe dikhe paanch lakh, CC No. 120/2019 Page 44 of 50 45 toh mei kya karu" (I am writing after reducing one zero and if one lac appears five lacs to you, what can I do.) This clearly shows that accused had spoken to the complainant that one zero of the amount of Rs.1 lac has been removed. It was for the accused to explain as to why he has mentioned regarding the figure of Rs.10,000/- in his conversation with the complainant which happened in the presence of PW5. The accused later on, in the same conversation said to the complainant that why the complainant is repeating one fact again and again as if he is recording something. This also reflects the cautious mind of the accused as he was apprehensive that complainant might be recording something. If the accused had no such dealing with the complainant then why he was apprehensive of any such recording. This conversation also supports the prosecution story regarding the demand by the accused.
36. Coming to hands and drawer washes, Ld. Defence counsel has argued that the prosecution failed to explain that how the right hand wash of the accused turned pink, when it is not even the case of the prosecution that the accused transferred money to his right hand after allegedly receiving the same from the complainant in his left hand. Record shows that in the chemical examination report, presence of phenolphthalein and sodium carbonate was found in all the three washes. As per the prosecution case, the accused accepted the bribe amount from the complainant in his left hand and kept the same CC No. 120/2019 Page 45 of 50 46 in the left side top drawer of his table. There can be circumstances where the accused might have transferred the tainted money to his right hand before keeping the same in the drawer or he might have touched his both hands after keeping the tainted money in the drawer before TLO and other team members reached in that room and in both these circumstances, the right hand of the accused will have traces of phenolphthalein powder, which have come in the hand wash. PW- 5 came out of that room immediately after acceptance of bribe by accused in his left and might have missed this fact of transfer of money by accused from left to right hand or touching his both hands. These minor discrepancies can not give any benefit to the accused when the other essential ingredients i.e. demand, acceptance and recovery are duly proved.
37. Ld. Defence counsel has also argued that there was ample opportunity to plant money in drawer of accused in his absence by complainant and independent witness who were there before accused. As per defence witness, he was already present in that when accused arrived there followed by complainant. This testimony by defence witness rules out any such possibility of planting.
38. As far as the defence of the accused is concerned, the accused has examined DW1 to prove his defence. The preposition of law argued by Ld. Defence counsel that the prosecution has to prove its case beyond reasonable doubt whereas the accused has to prove his defence only CC No. 120/2019 Page 46 of 50 47 on the preponderance of probabilities is undisputed. Let us examine the testimony of DW1 to ascertain whether the accused has been able to rebut the presumption against him U/s 20 of the PC Act or not. DW1, who was then posted as Head Constable with accused at PS Tilak Nagar, has stated that on 06.11.2015, he was present in the office room when accused came in that room followed by one person and there were some arguments between them and he asked that person to speak in low voice and when accused was fetching a file from his almirah, 7-8 persons entered the room and caught accused from both hands and one of them asked him to leave the room. Accused did not demand any bribe nor accepted any bribe from that person and after coming of that room, he informed the SHO about this incident. In the cross-examination conducted by Ld. PP, he stated that he did not make any complaint in writing to his superiors regarding apprehension of the accused by CBI despite the fact that allegedly no demand of bribe was made nor accepted by the accused. Neither he approached the IO of this case to give statement nor he made any representation before any Court regarding implication of accused in this case. In these facts, it is difficult to believe the testimony of this witness. Further he called the SHO and informed only about the apprehension of accused by CBI official but did not tell even the SHO immediately after the incident that accused has been falsely apprehended. The SHO appeared as PW7 and CC No. 120/2019 Page 47 of 50 48 stated in his cross-examination that HC Sher Singh (DW1) was in the room of accused at the time of CBI raid but did not admit the suggestion that DW1 informed him that accused has been wrongly apprehended by CBI. Even DW1 did not say in his testimony that he informed the SHO that accused has been wrongly apprehended in this case. DW1 being an ex-colleague of accused cannot be said to be an independent witness nor his testimony inspire any confidence to say that accused did not demand or accept the bribe more so, when the same was consciously done by the accused in gestures. Accused has not been able to prove his defence even by principles of preponderance.
39. Coming to the case law relied upon by both the parties, few of the judgments relied upon have already been discussed. I have perused all the judgments relied by the parties. There is no dispute to the law laid down in those judgments but the fact remains that the same can be applied only if the facts of this case are similar to those. Whether conviction can be based only on the testimony of independent witness or not, was settled by Hon'ble Supreme Court in the case of Vinod Kumar Vs. State of Punjab, in Criminal Appeal No. 554 of 2012 dated 23.09.2014, where the complainant resiled from his previous statement and one of the independent witness also resiled from his examination in chief in the cross- examination and only PW6, the other independent witness, supported the prosecution case in detail. The CC No. 120/2019 Page 48 of 50 49 Trial Court and the High Court convicted the accused on the basis of the testimony of PW6. The Hon'ble Supreme Court upheld the conviction by observing that PW6 has supported the prosecution case and stood firm and remained unshaken and nothing was elicited to dislodge his testimony. In the present case, PW5 has stood his testimony and remained unshaken. The testimony of the complainant on the points on which he admitted the prosecution case when he was declared hostile also corroborates the unshaken testimony of PW5 and can be considered in support of prosecution case. Ld. Defence counsel has argued that the judgment of Vinod Kumar Vs. State (supra) is a judgment of division bench of Hon'ble Supreme Court whereas the judgment of P. Satyanarayana Murty (supra) is judgment of three judges bench and therefore, will prevail over the judgment of Vinod Kumar (supra). I do not find any force in his submission since both the judgments are on different aspects. The judgment of P. Satyanarayana Murty (supra) has already been discussed where the complainant died before evidence and the demand was not proved by the prosecution. The case of Vinod Kumar (supra) is on different facts.
40. In the present case, prosecution has duly proved the ingredient of demand and acceptance from the testimony of PW5, which was duly corroborated by the transcript and the conversations recorded in the memory cards. The recovery was duly proved from the testimony of PW5 CC No. 120/2019 Page 49 of 50 50 and PW6, who both are independent witnesses and same is duly supported and corroborated by the testimony of other members of the CBI team as well as corroborated by the scientific evidence of chemical examiner, who found phenolphthalein powder in all the washes and also of the forensic examination of the voices, who opined that the voice in memory cards Q1 and Q2 is the probable voice of the accused. These corroboratory evidences supports the primary evidence contained in the testimony of PW5 and PW6.
41. In view of above discussion, the prosecution has proved the commission of offence punishable U/s 7 of the PC Act and offence punishable U/s 13 (1) (d) r/w 13 (2) of the PC Act against the accused beyond reasonable doubt and he, accordingly, is convicted for both the offences.
Digitally
signed by
AMIT AMIT KUMAR
Date:
ANNOUNCED IN THE OPEN COURT KUMAR 2022.05.31
11:11:29
TODAY i.e. ON 31.05.2022 +0530
(AMIT KUMAR)
SPECIAL JUDGE, PC ACT, CBI-04,
ROUSE AVENUE COURTS,
NEW DELHI
CC No. 120/2019 Page 50 of 50