Delhi District Court
Narsinga Rao vs . State Of Ap; Sc 2001 Crl.Lj. 515 (2) ... on 20 December, 2021
-:1:- CBI v. Surender Singh.
IN THE COURT OF SHRI ARVIND KUMAR:
SPECIAL JUDGE, (PC ACT) CBI10:
ROUSE AVENUE DISTRICT COURTS: NEW DELHI
In the matter of :
CNR No.: DLCT 110009172019
Case No.: 237/2019
RC No. : DAI2015A0035/DLI
Branch : ACB/CBI/New Delhi
U/Sec : 201 IPC & Sec 7, 13 (2) r/w
sec 13(1)(d) of PC Act, 1988
CENTRAL BUREAU OF INVESTIGATION ..... Complainant
Versus
SURENDER SINGH,
Son of late Shri Braham Singh,
R/o : H. No. A43, Main Road,
Gali No.01, Sonia Vihar, Delhi94 .......... Accused
Date of Institution : 22.01.2016
Date on which reserved for judgment : 14.12.2021
Date of Judgment : 20.12.2021
Present : Ms. Jyoti Solanki, Ld. PP for CBI.
Accused Surender Singh in person along with
Ld. Counsels Shri Rajiv Mohan and Sh. Rehan Khan.
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JUDGMENT :
1. Briefly stating, the case of the prosecution is that the complainant Sh. Manzoor Ahmed started a handcart/stall (Rehdi) of Biryani from 21.10.2015 at foot path near Seelampur Metro Station, Delhi. On the same day i.e. on 21.10.2015, Surender Singh, a Constable, Delhi Police, PS Seelampur came at his handcart/stall (Rehdi) and asked to remove his handcart/stall (Rehdi) from the said place. After some time another Constable namely Sh. Jitender came at his handcart/stall & asked him to remove his stall. Jitender further told the complainant that in case he wants to occupy the space for his handcart/stall, he would have to pay Rs.10,000/ as advance & Rs.3000/ per month for his handcart/stall of Biryani. On request of the complainant, Ct. Jitender asked him to pay Rs.5,000/ as advance & Rs.1500/ per month for the space of his stall. Later on Ct. Surender Singh again came at his stall and asked to pay advance money as agreed. Sh. Manzoor Ahmed gave Rs.2000/ to Const. Surender Singh out of fear. Thereafter Constable Surender Singh again visited the complainant and demanded the remaining amount of Rs.3,000/ and Rs. 1500/ per month.
2. Since the complainant did not want to give the bribe, he made a complaint to the Supdt. of Police, CBI, ACB Delhi on 28.10.2015.
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3. In order to ascertain the allegations mentioned in the complaint, Verifying officer Sh S.P .Singh, Inspector, ACB, CBI, Delhi arranged one independent witness namely Shri Anil Kumar, Assistant Commercial Accountant (ACA), Delhi State Industrial Infrastructure Development Corporation Ltd, (DSIIDC).
4. That Sh S. P. Singh Inspector arranged a digital voice recorder (DVR) make Sony of silver colour and a new 4 GB memory card make "Sandisk". The memory card was taken out of its sealed packet and inserted in the DVR and recorded the introductory voice of the independent witness after ensuring its blankness.
5. Thereafter, Verifying officer Sh S.P.Singh along with above mentioned independent witness left the CBI office at about 08:45 hrs in one official vehicle of CBI and reached near Seelampur Metro Station at about 10:00 hrs. Sh. Manzoor Ahmed was found present at his handcart stall i.e. near Seelampur Metro Station as directed by the verifying officer on 28.10.2015. Shri Anil Kumar, independent witness was introduced to Sh. Manzoor Ahmed (complainant). It was decided that the complainant shall wait for the accused at his stall and would record the likely conversation if any takes place between the complainant & accused. The independent witness was Page no. 3 of 74
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directed to remain close and try to overhear the likely conversation. The complainant was given DVR having memory card containing introductory voice of independent witness in recording mode which he kept in upper pocket of his shirt (Pathani Kurta). Verifying officer also took the position near the stall of complainant in discreet manner.
6. That at about 11:00 hrs, a person in Police uniform came at the stall of the complainant and started conversation with complainant for a short while and left the place. Then the complainant informed Verifying officer that the person who came in Police uniform at his stall was Ct. Surender. The DVR was taken back from the complainant by Verifying officer and switched off. Thereafter, Verifying officer, Sh. Anil Kumar, independent witness & the complainant left the spot and reached at the CBI office at about 13:00 hrs. The said conversation was heard by independent witness and Verifying officer, which revealed that Surender Singh was demanding the bribe and agreed to accept the bribe money i.e. Rs.3,000/ from him on next day i.e. on 30.10.2015.
7. The memory card was taken out from the DVR and sealed with CBI seal. The sealed envelope was marked as Q1. Independent witness, complainant and Verifying officer signed on the said Page no. 4 of 74
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envelope. The DVR used in verification of complaint no. CO 76/2015 was also sealed. The sealed DVR and brass seal was handed over to the independent witness for keeping in safe custody.
8. Thereafter, the complainant and witness were directed by Verifying officer to visit CBI office on 30.10.2015 at 07:00 hrs for further proceedings. The independent witness was directed to bring the sealed DVR and brass seal on 30.10.2015. This proceeding of verification started at 13:15 hrs and concluded at about 17:50 hrs. on 29.10.2015.
9. An FIR was registered under Section 7 of P.C. Act and marked to Sh K. S. Pathania, Dy. S.P. CBI, ACB, Delhi for investigation, who constituted a Trap team and directed them to reach the office at 07:00AM on 30.10.2015.
10. That on 30.10.2015, the trap team consisting of complainant, the two independent witnesses namely Sh. Anil Kumar who remained associated in verification of complaint on 29.10.2015 and other witness Sh. Mukesh Kumar Jamdagni, Sh. K. S. Pathania, Dy. SP/TLO, S/Sh. Ramesh Kumar, Arjun Singh, Pramod Kumar, S. P. Singh, all Inspectors and other subordinate staff assembled at the office of Superintendent of Police, CBI, ACB, New Delhi at about Page no. 5 of 74
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07:30 hrs. The above noted independent witnesses, the complainant, and the CBI officers were formally introduced to each other by TLO. The purpose of assembly for laying a trap on the accused was explained by TLO to all the members present. The complaint dated 28.10.2015 and verification memo dated 29.10.2015 were read over to all present there.
11. The complainant produced a sum of Rs.3,000/ comprising of 06 GC notes of Rs. 500/ denomination, which he had brought to give to the Shri Surender Singh as bribe. The distinctive numbers of the G.C. notes so produced by the complainant were mentioned in the Handing over memo dated 30.10.2015 prepared in CBI office. The aforesaid amount of Rs.3,000/ was then treated by Sh. Ramesh Kumar, Inspector with phenolphthalein powder. A demonstration was also given by Sh. Ramesh Kumar, Inspector to all present to explain the purpose and significance of use of phenolphthalein powder and its chemical reaction with solution of sodium carbonate and water. Sh. Mukesh Kumar Jamdagni, the independent witness was asked to touch the tainted amount of Rs.3,000/ with his right hand fingers and afterwards wash them in the freshly prepared colourless solution of Sodium Carbonate and water in a glass tumbler. On doing so, the colourless solution turned pink in colour and this pink colour solution was thrown away after explaining the Page no. 6 of 74
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significance of reaction.
12. The remaining phenolphthalein powder was returned to the Malkhana. The glass tumbler used for demonstration was also left behind in office. Personal search of complainant Sh. Manzoor Ahmed was conducted by independent witness Sh. Anil Kumar. Nothing was left in his possession except his mobile phone bearing mobile No. 9811222560. The tainted bribe amount of Rs.3,000/ was then put in the right side pocket of the shirt(Pathani Kurta) of the complainant by Sh. Anil Kumar, the independent witness. The complainant was directed not to touch the said tainted bribe amount and to hand over the same to the accused on his specific demand not otherwise or on his specific direction to some other person.
13. Thereafter, Sh. Anil Kumar, Independent witness, produced the sealed DVR used during verification and a new blank memory card was placed in it after taking it out from the sealed envelope. Thereafter, the introductory voices of both the above mentioned independent witnesses were recorded in it after ensuring its blankness. The DVR now fitted with this memory card was handed over to the complainant with a direction to keep it in his personal custody in hidden position and switch on it after reaching the spot. All the CBI team members, the complainant and the two independent Page no. 7 of 74
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witnesses washed their hands with soap and water. Sh. Mukesh Kumar Jamdagni, independent witness was directed to act as a shadow witness and to remain as close to the complainant, as possible and try to overhear the conversation and see the transaction of bribe money, which may take place between the complainant and the accused person. The complainant was also directed to give signal by giving a call to mobile phone No. 9650094292 of Sh. K.S. Pathania, Dy. SP/TLO, CBI, ACB, Delhi from his own mobile phone No.9811222560. He was also directed to give signal by rubbing his face by his both hands, after the transaction is over.
14. The other witness, Sh. Anil Kumar was directed to remain with the trap party. The envelope marked Q1 prepared during verification was handed over by Sh. S. P. Singh Inspector to TLO which was taken into police possession. All the members except the complainant mutually searched each other to ensure that they may not carry anything incriminating.
15. The Handing Over/Pre Trap memo was prepared in CBI, ACB, New Delhi office and was signed by all concerned in token of its correctness and genuineness. The proceedings of the said memo started at 07:30 hrs and concluded at about 08:30 hrs on 30.10.2015. Thereafter, all the trap team members including both independent Page no. 8 of 74
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witnesses and the complainant left for the spot at 08:35 hrs. in two CBI vehicles along with one motor cycle rider.
16. At about 09:10 hrs the CBI Team reached near Seelampur Metro Station and both the vehicles were parked at safe distance from the place of the handcart/stall (Thela) of the complainant. The Digital Voice Recorder in which voice of both the independent witnesses were recorded, was given to the complainant Sh. Manzoor Ahmed by keeping it on recording mode, which he kept in his left upper side pocket of his wearing shirt (Pathani Kurta). He was again directed by the TLO to hand over the bribe amount to Sh. Surender Singh on his specific demand or to any other person on his specific direction. Both the complainant and Independent witness Sh. Mukesh Kumar Jamdagni were again reminded to give miss call on the mobile phone No.9650094292 of TLO or to give signal by rubbing his face by both hands.
17. Thereafter, the complainant and the shadow witness Sh. Mukesh Kumar Jamdagni were directed by TLO to proceed towards the Biryani stall of the complainant, which was already being run by his son Md. Rehan. The complainant started helping his son at his stall and shadow witness also took position on the left side of the said stall. The other team members and other independent witness Sh.
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Anil Kumar took suitable position in discreet manner. It was a crowded place near the Seelampur metro bus stand in front of Metro Mall.
18. That at around 10:05 hrs a person in police uniform on a motor cycle was seen approaching towards the stall of the complainant which was seen by all the trap team members. The police personal was later identified as Surender Singh, Police Constable, PS Seelampur, Delhi. Shri Surender Singh stopped his bike near the biryani stall of the complainant and called complainant by gesture. The complainant was then seen approaching towards the said constable. After small conversation Surender Singh demanded bribe through gesture while sitting on his bike. The complainant took out the tainted bribe amount from his right side shirt (Pathani Kurta) pocket and extended toward the Const. Surender Singh, who accepted the said tainted bribe amount by his left hand and transferred in his right hand and kept the same in his right side pocket of his wearing khaki uniform pant without counting, which was seen by all the trap team members. The complainant gave signal by rubbing his face with his both hands.
19. Thereafter, TLO alerted all the team members and rushed towards the accused Surender Singh who was sitting on his bike, and Page no. 10 of 74
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challenged him after disclosing his identity. On this, accused Surender Singh got perplexed and kept mum.
20. The DVR given to the complainant was taken back by Inspector, Ramesh Kumar and recording was stopped. Inspector Ramesh Kumar caught hold of the right hand of Surender Singh from the wrist and Inspector Arjun Singh caught hold of the left hand of Surender Singh from the wrist. Thereafter, Constable Surender Singh was directed to get down from his bike. At this time, since it was very busy road, a lot of people started gathering at the spot. Keeping in view the safety of the trap team and accused, the accused was taken inside the premises of Metro Mall guarded by private security personnel.
21. Thereafter, a colourless solution of sodium carbonate with water was prepared in a neat and clean glass tumbler. The accused Surender Singh was directed to dip his right hand fingers in the said solution. On this the said solution turned into pink. This solution was transferred into a neat and clean glass bottle. After capping the bottle, the bottle's neck was wrapped with cloth tied with tag and sealed with CBI seal taken from the independent witness Sh. Anil Kumar. Both the witnesses, TLO, accused Surender Singh and complainant signed on the cloth wrapper as well as on the label pasted on the Page no. 11 of 74
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bottle. The bottle was marked as "Right hand wash (RHW) in RC 35(A)/2015", denoting Right Hand Wash. In the same manner the Left hand wash of the accused was taken and sealed in another glass bottle. The bottle was marked as "Left hand wash (LHW) in RC 35(A)/2015", denoting Left Hand Wash. Both the witnesses, TLO, accused Surender Singh and complainant signed on the cloth wrapper as well as on the label pasted on the bottle.
22. Sh. Mukesh Kumar Jamdagni was directed to recover the bribe amount. He recovered the bribe amount from right side pant pocket of accused Surender Singh. Both the independent witnesses were requested to cross check the denomination numbers of the recovered bribe amount with the denomination numbers mentioned in the handing over Memo. After cross checking the same, the witnesses confirmed that the denomination numbers of the recovered bribe amount of Rs 3,000/ tallied completely with the denomination as mentioned in the handing over Memo.
23. Thereafter, a payjama was arranged from local market and accused Surender Singh was directed to change the wearing pant with the payjama so arranged. He was allowed to change the payjama keeping his decency. Again fresh colourless solution of sodium carbonate with water was prepared in a neat and clean glass tumbler.
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The right side pant pocket of accused Surender Singh then dipped in the said solution. On this the said solution turned into pink. This solution was transferred in another neat and clean glass bottle. After capping the bottle, the bottle's neck was wrapped with cloth tied with tag and sealed with CBI seal. The bottle was marked as "Right Side Pant Pocket Wash (RPPW) in RC 35(A)/2015", denoting Right side Pant Pocket Wash. Both the witnesses, TLO, and complainant signed on the cloth wrapper as well as on the label pasted on the bottle and this bottle was given to accused Surender Singh for signing. While signing on the bottle, accused Surender Singh intentionally threw the bottle on the floor and the bottle broke down immediately in front of both the witnesses and trap team members, resulting into loss of right side pant pocket wash. The said broken bottle was then collected and wrapped in a piece of clothes and kept in a yellow envelope and sealed. This yellow colour envelope then sealed with CBI brass seal and marked as "RC 35(A)/2015DLI broken piece of sealed bottle of Right pant Pocket Wash" (RPPW). Both the witnesses, TLO, accused Surender Singh and complainant signed on the yellow envelope.
24. The pant of the accused was signed on the inner lining of right pant pocket by both the witnesses, TLO, accused Surender Singh and complainant. This pant was then kept in a yellow envelope and Page no. 13 of 74
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sealed with CBI brass seal. This envelope was marked "RC 35(A)/2015DLI Khaki pant Uniform of Surender Singh" which was also signed by both the witnesses, TLO, accused Surender Singh and complainant.
25. A rough site plan was prepared by Sh. Arjun Singh, Inspector on direction of TLO at the spot by showing the positions of trap team members, independent witnesses and the accused.
26. Thereafter, complainant Sh. Manzoor Ahmed was directed to narrate the incident. He stated that accused Surender Singh after reaching near his Biryaani Thela on his bike called him through gesture. He (complainant) started conversation with him and asked him to let complainant talk to Jitender. On this Surender Singh informed him that Jitender is not a police personnel and demanded the bribe amount by asking "Kitne hai". On this Complainant informed him "Teen Hazar hain". Thereafter, complainant took out the tainted bribe amount from his right side shirt pocket (Pathani Kurta) and extended toward Constable Surender Singh, who accepted the said tainted bribe amount with his left hand and transferred the same in his right hand and kept the same in his right side pocket of his wearing khaki uniform pant without counting. Thereafter, he (Complainant) gave the pre decided signal by rubbing Page no. 14 of 74
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his face with both hands and CBI team caught hold the accused Surender Singh and taken the DVR from complainant.
27. The recorded conversation was also heard at the spot which also corroborated the version of complainant.
28. The bribe amount of Rs 3,000/ was kept in brown envelope and sealed. This envelope was marked "RC 35(A)/2015DLI trap money". This envelope was signed by both the independent witnesses, complainant, TLO and accused Surender Singh.
29. The bike of the accused was searched and nothing incriminating was found. The said bike 'Hero Splendor Pro' having registration no. DL 5S BH 4680 was handed over to Constable Ranjeet Singh belt no. 1578/NE PS Seelam Pur, Delhi who was called from the police station. An intimation of the incident was also given by TLO to Sh. Ram Avtar Tyagi, SHO of PS Seelam Pur on his Mobile number.
30. Since the place was not conducive for conducting further proceedings, it was decided by TLO to leave for CBI office. The CBI team left the spot along with the accused Surender Singh at about 11:00 AM and reached CBI office at about 11:45 AM.
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31. On reaching at CBI office, the 4 GB Sandisk memory card was taken out from the DVR and kept in its plastic cover and marked as Q2. This plastic cover was signed by the independent witnesses, TLO and complainant. This plastic cover containing memory card was again kept in brown envelope and sealed. This envelope was signed by both the independent witnesses, TLO and complainant and was marked as 'Q2' RC 35(A)/2015DLI'.
32. Thereafter, the specimen voice of accused Surender Singh was taken, which he tendered voluntarily in front of both the independent witnesses. The 4 GB Sandisk memory card after recording the specimen voice was taken out from the DVR and kept in its plastic cover and marked as S1 and sealed in an envelope. This envelope was signed by both the independent witnesses, TLO and Surender Singh and was marked as 'S1' RC 35(A)/2015DLI'.
33. Accused Surender Singh was arrested vide separate personal search cum arrest memo at 01:10 PM. Intimation of arrest was given to his wife Smt. Pavitra through the search team, vide which search was conducted at the residence of accused.
34. The sealed envelope containing bribe amount of Rs.3,000/ Page no. 16 of 74
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and both the sealed hand washes i.e. RHW, LHW, envelope containing the broken bottle LPPW, sealed envelope containing a pant of Surender Singh, Sealed envelope containing Q2, and sealed envelope containing S1 were taken into police custody vide Recovery memo prepared by TLO.
35. TLO gave this seal to Shri Anil Kumar, independent witness for keeping it in safe custody and produce the same as and when required by the Court. The proceedings were recorded in Recovery memo prepared at CBI office. The proceedings concluded at 05:30 PM on 30.10.15.
36. During investigation, the certified copies of Duty Roaster (Chittha) of PS : Seelampur along with DD entries dated 29.10.2015 (3 numbers) and dated 30.10.2015 (2 numbers) were taken from SHO, Seelampur which shows that Constable Surender Singh was deployed at beat No. 5 which includes the spot of the trap. The DD entries also proved that he was on duty on 29.10.2015 and 30.10.2015 and relevant entries proved his presence at the spot on the day of verification as well as on day of trap. During investigation the voice of accused Surender Singh was identified by the complainant.
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37. The role of Jitender S/o Raju, Village & PostSiroli, Tehsil Loni, PSLoni, Dist Ghaziabad, U.P., who initially demanded the bribe from the complainant as mentioned in the complaint could not be established during investigation. Sh. Jitender is a private person and was working as Driver of QRT team with PS: Seelampur.
38. The CFSL, CBI, Delhi vide its report no. CFSL2015/C1640 dated 07122015 has confirmed the presence of phenolphthalein in the sealed chemical solutions i.e. RHW, LHW & Khaki pant of accused Surender Singh confirming thereby that the tainted money was handled by accused Surender Singh. "The exhibits Q1, Q2, S1 and DVR containing conversations recorded during verification and Trap proceedings were sent to CFSL, CBI, Delhi on 11.12.2015 and CFSL report, dated 27.01.2016 shows that there has not been any tampering in memory cards Q1, Q2 and S1.
39. Chargesheet is filed against accused Surender Singh for the offence punishable under section 201 IPC and sections 7, 13(2) r/w 13(1) (d) of the Prevention of Corruption Act, 1988.
40. Since, accused Surender Singh was a public servant at the time of commission of alleged offence, necessary sanction under Section 19 of Prevention of Corruption Act, 1988, was obtained qua him by Page no. 18 of 74
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the CBI.
41. On 20.05.2016, a formal charge under Section 201 IPC & Sections 7 and 13(2) r/w 13(1) (d) PC Act was framed against accused Surender Singh, to which, he pleaded not guilty and claimed trial.
42. In order to bring home the guilt of the accused, prosecution has examined as many as following 11 witnesses : PW1 Shri Manzoor Ahmed is the complainant. He deposed about verification proceedings conducted after he gave his complaint and regarding proceedings conducted at the time of laying trap and subsequent thereto.
PW2 Shri Faheem is nephew of complainant. He had written the complaint of Shri Manzoor Ahmed on the instructions of complainant.
PW3 Shri Amitosh Kumar is Senior Scientific Officer, GradeII, CFSL, New Delhi. He examined the parcels containing memory cards Q1, Q2 and S1 sent by CBI and prepared the report and exhibited several documents Page no. 19 of 74
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related to receiving of parcels and preparation of documents in this regard.
PW4 Shri Veenu Bansal, the Additional Commissioner, Traffic, Delhi Police. He exhibited the sanction order, Ex. PW4/B and other documents related to sanction for prosecution of accused.
PW5 Ms. Deepti Bhargava is Senior Scientific Officer, GradeII, CFSL, CGO Complex, Lodhi Road, New Delhi. She exhibited the report regarding presence of phenolphthalein in left hand and right hand wash of accused taken by the CBI officials and pant which the accused was wearing at the time of the trap proceedings.
PW6 Shri Anil Kumar, the then Account Assistant from DSIIDC is independent witness. He participated in verification proceedings, pretrap and posttrap proceedings conducted by CBI officials.
PW7 Insp. Ram Avtar Tyagi is SHO Mauris Nagar, North District, Delhi. He exhibited certain documents such as ProductioncumSeizure Memo, DD entries Page no. 20 of 74
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pertaining to posting of accused Surender.
PW8 Shri Mukesh Kumar Jamdagni, Assistant,Grade1 from DSIIDC is another independent witness. He participated in pretrap and posttrap proceedings conducted by CBI officials.
PW9 Shri S. P. Singh is Inspector, CBI, ACB, New Delhi, the Verification Officer. He verified the complaint made by complainant Manzoor Ahmed in presence of independent witness, PW6 Anil Kumar. He also participated in pretrap and posttrap proceedings and exhibited documents relating to verification, pretrap and post trap proceedings.
PW10 Shri Kamaljeet Singh, the then DSP in ACB, CBI is Trap Laying Officer. He constituted the trap team and conducted trap in presence of two independent witnesses and exhibited documents related to trap.
PW11 Inspector Anil Kumar Singh, ACB, CBI, New Delhi is IO of the case.
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43. The accused is examined U/S 313 Cr.PC. The accused denied to have demanded or taken bribe from the complainant. Accused stated that he was innocent and CBI officials had falsely implicated him in the present case. The complainant was unauthorizedly parking his rehri which was creating a lot of hurdle in using of the roads by pedestrian as well as vehicles. Such type of business activities were hazardous to the society. The local police was objecting on these activities in the area. The complainant to teach a lesson to accused and to create pressure upon local police for not objecting in conducting his such business activities falsely implicated accused in this case.
44. The accused preferred not to examine any witness in his defence.
45. I have heard Ld. Counsel for the accused as well as Ld. PP for CBI.
46. Ld. PP for CBI submits that accused has demanded bribe from the complainant to allow the complainant to park his rehri near Metro Station and a complaint was filed by complainant, Manzoor Ahmed and verification of the allegation was conducted on 29.10.2015 and thereafter, a trap was laid on 30.10.2015 and the Page no. 22 of 74
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accused Surender Singh was caught redhanded while taking bribe of Rs.3000/ from complainant. It is submitted that the accused Surender Singh has also broken one bottle containing Right Side Pant Pocket Wash when the said bottle was given to him to put his signature and has destroyed the vital piece of evidence. It is submitted that complainant PW1 has clearly testified regarding the demand of bribe made by accused and the testimony of PW1 is reliable. It is further submitted that the verification report clearly depicts the proceedings which has taken place and the memory card Q1, Ex.P7, containing conversation between accused and complainant, corroborate the aforesaid fact. Ld. PP, CBI submits that tainted money was accepted by the accused from the complainant and was recovered from the accused. Hand washes of the accused and pant wash gave positive result and the report of Chemical Examiner shows the presence of phenolphthalein in the aforesaid samples. Ld. PP submits that the recording in Memory Card, Q2, Ex.P9 corroborates the aforesaid fact of taking bribe by the accused. It is submitted that the CFSL report further shows that there has not been any manipulation or tampering in the recording in Memory Cards Q1, Ex. P7 and Q2, Ex. P9.
47. Ld. PP for CBI also submitted that accused has failed to give any justified explanation as to how his voice came in recorded Page no. 23 of 74
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conversation, which is in memory card, which is a primary evidence.
48. It is further submitted that the CBI official were not having any personal grudge against the accused and there is no reason for them to implicate the accused into false case. Ld. PP, CBI submits that testimony of PW1, Complainant is further corroborated by the testimonies of PW6, Anil Kumar and PW8, Mukesh Kumar, who are the independent witnesses and there is no reason to disbelieve the testimonies of these witnesses. Ld. PP for CBI also submits that even otherwise testimony of PW1 is reliable and no corroboration is required and his testimony alone is sufficient for convicting the accused.
49. It is also submitted that the prosecution has established beyond reasonable doubt that there was demand of bribe on the part of accused and the tainted money was accepted by the accused and the recovery of the tainted money was also established beyond reasonable doubts. It is submitted that scientific evidence has further lent corroboration to the prosecution case.
50. Ld. PP further submits that sanction has been accorded by the competent authority, PW4, Sh. Veenu Bansal after application of mind and sanction order is a speaking order containing all necessary Page no. 24 of 74
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facts. It is submitted that as per PW4, the complete material was placed before him and he has applied his mind while granting sanction. It is submitted by Ld. PP that purpose of sanction is not to shield the corrupt official but to provide them protection against false implication and hypertechnical approach need not be adopted.
51. Ld. PP for CBI also submits that it has also been proved by different witnesses examined by the prosecution that accused Surender Singh has broken the bottle containing right side pant pocket wash, when the said bottle was given to him to put his signature. It is submitted that PW1, complainant, independent witnesses, PW6 & PW8 and other witnesses from CBI have clearly deposed regarding destruction of evidence by the accused Surender Singh.
52. Ld. Counsel for CBI relied upon the judgments (1) M. Narsinga Rao Vs. State of AP; SC 2001 Crl.LJ. 515 (2) Madhukar Bhaskar Rao Joshi Vs. State of Mahrashtra ; 2000 AIR SCW 4018 (3) C.M.Sharma Vs. State of Andhra Pradesh; (2013) 2 SCC (Crl) 89 (4) Tahir Vs. State (Delhi Administration) ; AIR 1986 SC 3079 (5) Karamjeet Singh Vs. State ; AIR 2003 SC 1311 (6) Iqbal Mosa Patel Vs. State of Gujrat; (2011) SCC (Crl) 654 (7) Faquira Vs. State of UP; AIR 1976 SC 915 (8) Harabailu Kariappa Vs. State of Karnataka ; 1996 (2) Page no. 25 of 74
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Crimes 167 (9) Nathu Ram Vs. State of Haryana ; 1994 Cr.LJ 1095 (1067) SC (10) Babasaheb Apparao Patil Vs. State of Maharashtra ; AIR 1984 Crl.LJ 4 (11) State of Maharashtra Vs. Narsingrao; SC AIR 1984 SC 63.
53. On the other hand, Ld. Counsel for the accused submits that the CBI has falsely implicated the accused in the present case and has failed to establish its case against the accused. Ld. Counsel for the accused contended that no proper sanction was taken by the CBI for prosecution of the accused who was a public servant at the time of alleged offence, hence, the accused is liable to be acquitted. He further elaborated that PW4 Shri Veenu Bansal stated that entire material was placed before the competent authority at the time of grant of sanction to prosecute the accused, however, as per prosecution case, they had received the CFSL Report, Ex.PW5/B on 05.02.2016 while the order regarding sanction to prosecute is communicated to CBI vide letter dated 11.01.2016 which shows that CFSL report was not before the competent authority and the competent authority has not applied its mind and sufficient material was not placed before the competent authority and thus, the order of the competent authority on sanction, is bad in the eyes of law.
54. Ld. Counsel for accused submitted that the testimony of Page no. 26 of 74
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complainant PW1 is wholly unreliable. PW1 in his complaint mentioned that accused Surender Singh has demanded bribe on 21.10.2015 and he again came and demanded money and the complainant paid Rs.2000/ to the accused but the complainant did not report the matter to CBI prior to 28.10.2015 and there is delay of seven days in making the complaint and this has not been explained by the complainant. It is submitted that the complainant has also taken the name of one Jitender, who had allegedly demanded bribe from him, however, said person has neither been made accused nor witness in the present matter. It is submitted that in fact, the complainant was unauthorizedly parking his rehri which was creating a lot of hurdle in using the roads by pedestrian as well as in smooth movement of traffic. Such type of business activities are hazardous to the society. The local police was objecting on these activities in the area. The complainant to teach a lesson to accused and to create pressure upon local police, has falsely implicated the accused in this case.
55. It is also submitted by Ld. Counsel for the accused that the conversation recorded during verification proceedings, pretrap proceedings and post trap proceedings cannot be relied upon as there is serious discrepancy in the recordings and tampering has been done in the recording in order to implicate the accused into Page no. 27 of 74
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false case. It is submitted that DVR which was used to record the conversation was not kept in safe custody and there is serious lapse in the prosecution case as the prosecution has failed to explain the discrepancies in their case. Ld. Counsel for accused contended that with regard to handing over of the DVR to PW1 on 30.10.2015, there are different versions of prosecution. It is submitted that as per Handing Over Memo, the DVR was given to PW1 in CBI office while as per Recovery Memo, DVR was given to PW1 on the spot. Ld. Counsel submitted the the complainant stated that he deboarded from the vehicle half a KM from the place where rehri (Handcart) was parked and all team members took their position in discreet manner then how the DVR was given to complainant on spot by the CBI. It is submitted that these contradictions coupled with the fact that the DVR was not examined by the CFSL, makes the entire recording done by CBI unreliable.
56. It is further submitted by Ld. Counsel for accused that as per prosecution case they had recorded sample voice of accused. However, it is admitted fact that sample voice of complainant was not taken thus it cannot be said that the conversation recorded in memory cards Q1 and Q2 contained the complainant's voice and thus, the said recording cannot be relied upon. It is also submitted that as per prosecution, memory cards Q1 and Q2 were sent to Page no. 28 of 74
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CFSL however it is not clear from the record that whether original Memory Cards Q1 and Q2 were sent to CFSL or not and further, from the testimony of PW3, Amitosh Kumar, it is not clear when the DVR was returned or when it was sent to Photo Division and these facts does not rule out possibility of manipulation. It is also submitted that prosecution failed to explain as to why the DVR was opened in Photo Division when no copy of it was to be made.
57. Ld. Counsel for accused contended that prosecution has falsely alleged that the accused has broken a bottle containing right side pant pocket wash of the accused. It is submitted that there is contradictory statements of the prosecution witnesses on this point and the prosecution failed to establish the aforesaid allegation. Ld. Counsel for accused submitted that as per prosecution case the accused has put his signature on two bottles allegedly containing Left Hand wash and Right hand wash and handed over to the TLO, thus, there was no reason for the accused to have broken the third bottle. It is submitted that no intention can be drawn from the aforesaid facts that accused had intention to destroy the evidence. It is submitted that PW1 Manzoor Ahmed stated that accused has thrown the aforesaid bottle while PW6 Anil Kumar stated that accused had hit the said bottle on his head and the bottle was broken. It is submitted that PW8, Mukesh Kumar Jamdagni stated Page no. 29 of 74
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that the aforesaid bottle fell down from the hands of the accused. It is submitted that there are different versions on this aspect. Ld. Counsel for accused has also pointed out that when the broken pieces of bottle were shown to the witness in court, it was found that there was one polythene sheet used in wrapping the bottle pieces while at the time of sealing the broken pieces there is no mention of this polythene sheet.
58. It is submitted by the Ld. Counsel for the accused that PW5, Deepti Bhargava, the Chemical Examiner, has given her report regarding presence of phenolphthalein in Right Hand Wash, Left Hand Wash and Pant Wash, however, during her crossexamination stated that when phenolphthalein is added to sodium carbonate solution a new compound Disodium Salt of Phenolphthalein is formed, then question arise how the presence of phenolphthalein is noted in the said solution.
59. Ld. Counsel for accused submitted that CBI has not examined some of the material witnesses, which is a serious discrepancy and cast serious doubt on the investigation conducted by the CBI. It is submitted that as per prosecution one Mr. Rehan, son of Manzoor Ahmed and one Autowala were there on the spot but none of these witnesses have been examined by the CBI and further, Faheem, Page no. 30 of 74
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PW2 was also present on the spot but was examined only for limited purpose and it raises serious doubt on the investigation conducted by the CBI.
60. Ld. Counsel for accused submitted that there is glaring discrepancies in the testimonies of different witnesses, regarding location of rehri as the site plan does not support the oral evidences of the independent witness, Mukesh Kumar. It is further submitted that PW1 states that accused called the complainant by gesture and demanded the money by gesture while the recorded conversation contradicts the story of the prosecution. It is also submitted that there is also serious discrepancies regarding recording of conversation in Memory Cards, Q1 (Ex. P7) which was allegedly sealed after verification proceedings on 29.10.2015 and was again used by CBI while taking alleged sample voice of the accused on 30.10.2015.
61. Ld. Counsel for the accused relied upon the judgments (1) N. Vijay Kumar v. State of Tamil Nadu (2021) 3 SCC 687; (2) B. Jayaraj v. State of Andhra Pradesh (2014) 13 SCC 55; (3) Mukhtiar Singh (deceased) v. State of Punjab (2017) 8 SCC 136; (4) Nepal Singh Rawal v. CBI (2011) 185 DLT 479; (5) Suraj Mal v. State (Delhi Administration) (1979) 3 SCC 725; (6) C. M. Girish Babu v. CBI Cochin, Page no. 31 of 74
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High Court of Kerala (2009) 3 SCC 779; (7) Khatri Hemraj Amulakh v. State of Gujarat (1972) 3 SCC 671; (8) Deny Bora v. State of Assam (2014) 14 SCC 22; (9) Takhaji Hiraji v. Thakore Kubersing Chamansing (2001) 6 SCC 145; (10) P. Parasurami Reddy v. State of Andhra Pradesh (2011) 12 SCC 294; (11) Bahudur Singh v. State of M.P. (2002) 1 SCC 606 and (12) Tomaso Bruno v. State of Uttar Pradesh (2015) 7 SCC 178.
Sanction to Prosecute :
62. The first point for consideration is whether proper sanction is accorded for prosecuting accused Surender Singh.
63. Here the testimonies of PW4, Shri Veenu Bansal and PW11, Shri Anil Kumar Singh are relevant.
64. PW4, Shri Veenu Bansal stated that he had received documents from CBI for granting sanction for prosecution against Ct. Surender, accused and after examining the material, he accorded sanction to prosecute Ct. Surender for the offences committed under section 7 and 13 (2) read with section 13 (1) (d) of PC Act and section 201 IPC and it was forwarded to CBI vide letter dated 11.01.2016, Ex. PW4/A. PW4 also stated that being a Deputy Commissioner of Police, he was competent to remove Ct. Surender Singh from services. PW4 stated that CBI has provided him Page no. 32 of 74
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documents, statement of witnesses and report of CFSL and CBI has not placed before him the Voice Identification Report.
65. PW11, Anil Kumar Singh, Inspector, CBI, stated that a letter dated 11.01.2016, Ex. PW4/A was written by Shri Rajender Singh Sagar, Addl. DCP, NorthEast Delhi to Shri G. Bairwa, SP, CBI, thereby forwarding the sanction order, Ex. PW4/B.
66. Section 19 of the Prevention of Corruption Act deals with the sanction necessary for prosecution. Section 19(1) reads as under : "Previous sanction necessary for prosecution. (1) No court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 allged to have been committed by a public servant, except with the previous sanction [save as otherwise provided in the Lokpal and Lokayuktas Act, 2013]
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office.
67. Hon'ble Supreme Court of India in 2005 CRI. L.J. 2145 "C.S. Krishnamurthy Vs. State of Karnataka, while dealing with the Page no. 33 of 74
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issue regarding validity of sanction, observed as under :
".......It is no doubt true that the sanction is necessary for every prosecution of public servant, this safeguard is against the frivolous prosecution against public servant from harassment. But, the sanction should not be taken as a shield to protect corrupt and dishonest public servant."
"The sanction itself shows that there is something to be accounted by the accused. When the sanction itself is very expressive, then in that case, the argument that particular material was not properly placed before the sanctioning authority for according sanction and sanctioning authority has not applied its mind becomes unsustainable. When sanction order itself is eloquent enough, then in that case only formal evidence has to be produced by the sanctioning authority or by any other evidence that the sanction was accorded by a competent person with due application of mind."
68. Hon'ble Supreme Court of India in State of Maharashtra Vs. Mahesh G Jain, reported in 2013 Cri. L.J. 3092, observed as under :
....... The learned trial Judge, as it seems, apart from other reasons has found that the sanctioning authority has not referred to the elementary facts and there is no objective material to justify a subjective satisfaction. The reasonings, in our considered opinion, are absolutely hypertechnical and, in fact, can always be used by an accused as a magic trick to pave the escape route. The reasons ascribed by the learned trial Judge appear as if he is sitting in appeal over the order of sanction. True, it is, grant of sanction is a sacrosanct and sacred act and is intended to provide Page no. 34 of 74
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a safeguard to the public servant against vexatious litigation but simultaneously when there is an order of sanction by the competent authority indicating application of mind, the same should not be lightly dealt with. The flimsy technicalities cannot be allowed to become tools in the hands of an accused. In the obtaining factual matrix, we must say without any iota of hesitation that the approach of the learned trial Judge as well as that of the learned single Judge is wholly incorrect and does not deserve acceptance.
69. It is clear from aforesaid judgments that entire material should be placed before the competent authority and there should be application of mind by competent authority while granting sanction for prosecution of the concerned person. It would be enough for the prosecution to prove that sanctioning authority had all the relevant papers before it and it was satisfied that it was necessary in the ends of justice to accord prosecution sanction. While granting sanction, it is not for sanctioning authority to judge the truth of all the allegations made against the accused by insisting or calling for the records of the accused. It is also well settled that when the application of the mind by the sanctioning authority to the facts consisting the offences is discernible exfacie from the sanction order itself, there is no need for the sanctioning authority to depose before the Court with regard to the satisfaction arrived at by him in the case.
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70. The sanction order, Ex.PW4/B, is signed by PW4, Shri Veenu Bansal, Addl. Commissioner, Delhi Police and he has duly proved the said sanction order.
71. Perusal of the sanction order, Ex. PW4/B, shows that it clearly speaks about the fact of commission of offence by the accused and it says that PW4 has carefully examined the material placed before him including the statement of witnesses and the documents collected during investigation with regard to the allegations and circumstances of the case. The sanction order is expressive and eloquent and, therefore, it cannot be said that the competent authority has not applied its mind. Further, it is also clear from testimonies of aforesaid witnesses that entire material has been placed before competent authority. Hon'ble Supreme Court in State of Maharashtra Vs. Mahesh G Jain, has clearly observed that flimsy technicalities should not be allowed to be raised. The contention of Ld. Counsel for accused that entire material was not placed before Competent Authority, therefore, the sanction to prosecute accused Surender Singh is bad, is without any merit.
72. Now, I turn to next issue whether prosecution has succeeded in proving the guilt of accused beyond reasonable doubt.
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73. Section 7 of the Prevention of Corruption Act reads as under : " Public servant taking gratification other than legal remuneration in respect of an official act. Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or parliament or the Legislature of any State or with any local authority, corporation or government company referred to in clause (c) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than [three years] but which may extend to [seven years] and shall also be liable to fine."
74. Section 13(1)(d) and (2) of Prevention of Corruption Act reads as under : "13 Criminal misconduct by a public servant. (1) A public servant is said to commit the offence of criminal misconduct,
(a) .....
(b) .....
(c) .....
(d) if, he,
(I) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage ; or Page no. 37 of 74
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(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or
(e) .....
(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than [four years] but which may extent to [ten years] and shall also be liable to fine."
75. It is well settled that for proving case beyond reasonable doubt, the prosecution has to prove the following three aspects namely :
a) Demand of bribe by public servant.
b) Acceptance of bribe by public servant.
c) Recovery of bribe amount from public servant.
76. Now I consider the first point as to whether there has been demand of money on the part of accused.
Demand of bribe by public servant :
77. Here the testimonies of PW1, complainant, PW6, Shri Anil Kumar, PW8 Shri Mukesh Kumar, PW9, Shri S. P. Singh, Verification Officer and PW10 Shri Kamaljeet Singh, TLO are relevant.
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78. PW1, complainant stated that he had lodged a complaint with the CBI on 28.10.2015 in respect of demand of bribe by accused Surender Singh and Ct. Jitender of PS Seelam Pur. He stated that on 21.10.2015, beat Ct. Surender came and asked him to remove his stall and after some time beat Ct. Jitender came and told him that complainant would have to pay Rs.10,000/ as advance and Rs.3000/ per month and when complainant showed his inability to pay the said amount, Ct. Jitender asked him to pay Rs.5000/ as advance and Rs.1500/ per month for running his stall. PW1 stated that thereafter, Ct. Surender came and demanded Rs.5000/ and asked him to pay the amount, as was agreed between complainant and Jitender and complainant paid Rs.2000/ and accused Surender demanded further amount hence, he lodged the complaint. PW1 also stated that verification of his complaint was done on 29.10.2015. PW1 stated that on 29.10.2015 Inspector S. P. Singh alongwith independent witness, Anil Kumar came at his biryani stall at about 10.00 am and they handed over to him DVR in switched on mode to record the conversation likely to take place between accused and the complainant. PW1 stated that on 29.10.15 at about 11:00 am accused Surender came at his stall and demanded money but he showed inability to pay the same and then accused asked him to pay the remaining amount on the next day. It is stated that the Page no. 39 of 74
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DVR was taken back by S.P. Singh and was switched off and in CBI office the memory card, Ex. P7 (Q1) was played, which revealed demand of bribe and memory card was taken out and was sealed in an envelope and the DVR was also sealed and a verification memo, Ex. PW1/B, was prepared and an FIR, Ex. PW1/C, was lodged.
79. PW1 stated that thereafter on 30.10.2015, he visited CBI office with a sum of Rs.3000/ i.e. six notes of Rs.500/ denomination each and these notes were applied with phenolphthalein powder and he was instructed by the CBI official to pay the said amount only on specific demand and thereafter, CBI officials, independent witnesses namely, Anil Kumar and Mukesh Kumar, reached at the place where the complainant had his rehri. All the persons took their positions in discreet manner. PW1 stated that he was given DVR in switched on mode which he kept in front upper pocket of his kurta and at about 10:05 - 10.10 am, accused came in uniform at his stall on a bike and called the complainant by gesture and the complainant approached him and accused Surender demanded bribe by gesture by his hand and the complainant handed over the bribe amount of Rs.3000/ to him and the accused took the bribe from his left hand and then transferred to right hand and then kept the same in right side pant pocket. PW1 also stated about the proceedings conducted by the CBI officials regarding taking handwashes of the accused, Page no. 40 of 74
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arrest of the accused and preparation of recovery memo after hearing the conversation recorded in memory card, Ex. P9 (Q2). PW1 exhibited his complaint as Ex.PW1/A, Verification Memo as Ex.PW1/B, FIR as Ex.PW1/C, Handing Over Memo as Ex.PW1/D, Site Plan as Ex.PW1/E, Recovery Memo as Ex.PW1/F, Voice IdentificationcumTranscription Memo as Ex.PW1/G, Transcription of Memory Card Ex. P7 (Q1) as Ex.PW1/H, Transcription of Memory Card Ex.P9 (Q2) as Ex.PW1/I and also articles i.e. Bottle RHW as Ex.P1, Bottle LHW as Ex.P2, Envelope containing broken pieces of bottle as Ex.P3, Govt. Currency Notes as Ex.P4, Pant as Ex.P5, DVR as Ex.P6, Memory Card 'Q1' as Ex.P7, Memory Card 'S1' as Ex.P8, Memory Card 'Q2' as Ex.P9.
80. PW6 Anil Kumar, Account Assistant, DSIIDC, stated that on 29.10.2015 he joined the proceedings and reached CBI office. He stated that a new memory card was inserted in DVR and he alongwith CBI officials reached at Seelampur at Biryani stall and DVR was given to biryani owner by the CBI official and complainant was asked to inform regarding arrival of accused. Conversation between accused and complainant was recorded in DVR. PW6 stated that the complainant informed about the arrival of the accused and further informed that accused Surender told complainant that he would come on the next day to take money and Page no. 41 of 74
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thereafter, they went to CBI office, heard the conversation recorded in Memory Card, Ex.P7 and verification memo, Ex.PW1/B, was prepared. PW6 has also stated about the proceedings dated 30.10.2015 which took place in CBI office before laying trap. PW6 has stated that on 30.10.2015 accused Surender Singh came on a bike and stopped the bike near Manzoor Ahmad's rehri and talked to him and Manzoor Ahmad gave Rs.3000/ to accused. PW6 also stated about arrest of the accused, preparation of rough site plan and the subsequent proceedings, conducted in the CBI office. PW6 Anil Kumar exhibited Brass Seal as Ex.PW6/A and Transcription of Memory Card Ex.P8 (S1) as Ex.PW6/B.
81. PW8, Sh. Mukesh Kumar Jamdagni, Assistant, Grade1, DSIIDC stated that he joined the proceedings with the CBI officials on 30.10.2015 and the complainant Mansoor Ali produced six govt. currency notes, Ex.P4 in the denomination of Rs.500/ each, totaling to Rs.3000/. PW8 stated that he applied some powder on these notes and notes were kept in the pocket of complainant to be given to accused on specific demand and a new memory card was opened in his presence and was put in some machine and the machine was kept in the pocket of Mansoor Ali. PW8 has stated that they all reached at flyover, Seelampur and he was asked to remain with Mansoor Ali. PW8 stated that he stood besides the Page no. 42 of 74
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complainant, who was near his biryani rehri and remained there for about 20 minutes and accused Surender came on his Splendor bike at some distance and complainant went to him and gave him the money and accused Surender kept the said money in his pocket.
82. PW9, S. P. Singh, the Verification Officer has stated almost same facts as stated by PW1 regarding the proceedings conducted on 29.10.2015. PW9 stated that after hearing the conversation recorded in the memory card Ex. P7 (Q1) on 29.10.2015, it was revealed that accused Surender has agreed to accept bribe money of Rs.3000/ for allowing the stall of the complainant at the said place. PW9 has also stated about the proceedings dated 30.10.2015. PW9, S.P.Singh stated that on 30.10.2015 at 10.05 am, accused Surender had come and had some conversation with complainant for some time and by gesture demanded bribe amount from the complainant and the complainant took out the money and handed over the same to accused Surender.
83. PW10, Shri Kamaljeet Singh, the Trap Laying Officer has detailed the pretrap proceedings. PW10 has also stated that on 30.10.15 at 10:05 am a person in police uniform was seen approaching towards stall of complainant on a motorcycle. The police personnel made a gesture to complainant Manzoor Ahmed Page no. 43 of 74
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while sitting on motorcycle and asked by him by gesture to come and started talking. He demanded money by gesture and complainant took out money from his pocket and gave the money to the accused and accused took the money with his left hand and transferred to his right hand and kept in right side pocket of the pant. PW10 stated about subsequent proceedings regarding taking hand washes, pant washes of accused, arrest of accused and subsequent proceedings conducted in CBI office.
84. I have perused the testimonies of the aforesaid witnesses and gone through the material on record.
85. It is noted that the complainant, PW1 has categorically stated that accused has demanded bribe on 21.10.2015 and thereafter, he paid Rs.2000/ out of the demanded amount of Rs.5000/ when the accused came at his rehri and demanded money. PW1 has made complaint, Ex.PW1/A, to CBI as he did not want to pay bribe to accused. PW1 has proved this complaint. PW1 has also categorically stated that accused again visited him and demanded the remaining amount. Further, on 29.10.2015 when the verification was conducted, accused had demanded the remaining amount from the complainant and the complainant's testimony on this aspect is reliable and trustworthy. The accused's coming to the complainant Page no. 44 of 74
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and meeting on 29.10.2015 has been corroborated by the testimonies of PW6 Shri Anil Kumar, Account Assistant, DSIIDC and PW9 Shri S. P. Singh, the Verification Officer. Further, the conversation recorded in memory card, Ex.P7 (Q1) shows that accused visited complainant on 29.10.2015 and had conversation with him. This fact is apparent from the recorded conversation. During the said conversation, the accused said "diye nahin tumne......kyon" ; "kal ka pakka hai" and "koi baat nahin... yeh paise aap se lene hain... meri himmat to hai nahi ... jo main akele kha jaunga". The aforesaid part of conversation clearly shows that the accused has demanded money from the complainant. The memory card, Ex.P7 (Q1) was sent to CFSL and CFSL report, Ex. PW3/C shows that there has not been any tampering in the recording contained in memory card, Ex. P7 (Q1).
86. Further, the complainant, PW1 has also stated that on 30.10.2015 when the trap was led, the accused came at his rehri and called him by gesture and demanded money by gesture by his hand and the complainant handed over Rs.3000/ which was kept by the accused in his pocket. This tainted amount was recovered from the accused. Here again, the testimony of PW1 is consistent and is corroborated by the statement of PW10, Kamaljeet Singh, TLO who clearly stated that on 30.10.2015 accused had come near Page no. 45 of 74
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complainant's rehri and called the complainant by gesture and demanded money by gesture and tainted amount of Rs.3000/ was recovered from accused. Further, the conversation recorded on 30.10.2015 in memory card, Ex. P9 (Q2) shows that complainant said "uss din do to diye the tumhe" and accused said "ye kitne hain". The aforesaid statement of the accused only shows that there has been previous demand on the part of the accused. The conduct of the accused at the time of accepting the said money also shows that there was previous demand on the part of the accused. Here, it is also worthwhile to mention that the accused has visited the complainant on 29.10.2015 and 30.10.2015 for taking bribe money. From the testimonies of aforesaid witnesses, it is clear that there is money demand by accused for allowing the complainant, PW1 to park his rehri near Metro Mall. The testimonies of PW1 Shri Manzoor Ahmed, PW6 Shri Anil Kumar, PW8 Shri Mukesh Kumar Jamdagni, PW9 Shri S.P. Singh and PW10 Shri Kamaljeet Singh are consistent and reliable and no material contradiction could be elicited during their crossexamination. The totality of the facts and circumstances taken together clearly establish demand of bribery on the part of the accused and it leaves no doubt for any presumption or assumption.
87. Ld. Counsel for accused has contended that there has been Page no. 46 of 74
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delay of seven days in filing the complaint by the complainant. It is submitted that as per CBI demand of bribe was made on 21.10.2015 and thereafter, accused has demanded the bribe and the complainant has paid Rs.2000/ and the accused again came to demand remaining amount and the complaint was made by the complainant only on 28.10.2015.
88. It is noted that as per complainant, the accused has visited the complainant to demand bribe on three occasions from 21.10.2015 till 28.10.2015. The complainant had to pay Rs.2000/ because of pressure put by the accused. The complainant is an illiterate person and does not know even to write Hindi. Given the fact and circumstances, background of the accused person and his qualification, it was not expected from the complainant to lodge complaint immediately after the bribe was demanded, that too, against a police official posted there and particularly, when the complainant was to carry on his work of selling eatables on the road side. The seven days delay in making the complaint does not, in any way, affect the case of the prosecution nor it give any contrary inference.
89. Ld. counsel for accused has also contended that CBI has failed to prove date and place fixed to receive bribe and has relied upon the judgment passed by Hon'ble Supreme Court in "P. Page no. 47 of 74
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Parasurami Reddy v. State of Andhra Pradesh" (supra), wherein it was observed that "Considering the overall circumstances, we do feel that the prosecution has not been able to prove that the accused had fixed the time and place to receive the money. Further it has been held that " we eould choose to give him the benefit of doubt".
90. Here, it is noted that prosecution has established that date and place for payment of bribe was fixed by the accused. It is clear from the testimony of PW1 that the place of payment of bribe was at the place where the complainant was selling eatables on his rehri, which is clear from the fact that the accused has visited the complainant at his rehri and demanded bribe and as per complainant, he has already paid Rs.2000/ to the accused earlier and further, the accused had visited the complainant on the day of verification at the place where rehri was parked by the complainant and it is also clear from the conversation recorded in the Memory Card, Ex. P7 (Q1) that the accused was to come to collect bribe on next day. The date of payment of bribe to accused is also clear from the recorded conversation, Ex. P7(Q1) wherein accused has clearly stated that "Kal ka pakka hai". Further, the accused visited the complainant on 30.10.2015 at his rehri to take bribe further corroborate the fact that date and place of taking of bribe was fixed otherwise, there was no reason for accused to have visited Page no. 48 of 74
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the complainant on 30.10.2015 at the rehri where the complainant was selling eatables and took bribe. The entire facts and circumstances taken together shows beyond doubt that date and place was fixed for payment of bribe. The judgment cited by the counsel for the accused does not help the case of the accused.
91. Ld. Counsel for accused has also contended that there are contradictions in case of the prosecution regarding custody of DVR, Ex.P6, memory cards Ex. P7 and P9 and the pieces of the broken bottle, Ex. P3 and these inconsistencies have not been explained by the prosecution.
92. Ld Counsel for accused contended that the Handing Over Memo, Ex.PW1/D, mentions that the DVR was handed over to complainant in CBI office while the Recovery Memo, Ex.PW1/F states that DVR was given to the complainant on the spot. It is contended that as per prosecution, on 30.10.2015 when CBI officials, independent witnesses and complainant, went for laying trap, the complainant has deboarded from the CBI vehicle half kilometer from the place where rehri of the complainant was parked, therefore, question arises how the DVR was given to the complainant on the spot. Ld. Counsel for the accused also submitted that PW1, in his chief examination, stated that DVR was given to Page no. 49 of 74
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him when they reached at Metro Station. It is also submitted that DVR was not examined by the CFSL Expert, which further creates doubt regarding proceedings conducted by CBI.
93. It is noted that in Handing Over Memo it is recorded that DVR, Ex. P6 was given to the complainant, PW1 in the CBI office while Recovery Memo, ExPW1/F says that DVR was handed over to the complainant on the spot and as per testimony of PW11 DVR was given to the complainant at half kilometer before the place of trap, where the complainant deboarded from the CBI vehicle. No doubt there is some discrepancy as to when the DVR was handed over to the complainant. However, the oral testimonies of different witnesses, namely, PW1 Manzoor Ahmed and PW9 S. P. Singh make it clear that DVR was handed over to the complainant at the place where the complainant deboarded from the CBI vehicle on the day of trap. The aforesaid difference regarding the place where DVR was handed over to complainant is not a material contradiction and does not affect the prosecution case, when the testimonies of other witnesses are consistent and reliable and trustworthy. There is nothing to point out that there has been any tampering with DVR or it was manipulated. In fact the conversation was recorded in Memory Cards, Ex. P7 and Ex. P9.
94. One of the contentions of the Ld. Counsel for the accused is that Page no. 50 of 74
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the conversation recorded in Ex. P7 (Q1) is not reliable as there is contradiction regarding custody of Q1. It is submitted that as per CBI Memory Card, Q1, was sealed on 29.10.2015 in CBI office. However, on 30.10.2015 Sample Voice of accused was recorded after selecting sentences from Memory Cards Ex.P7 (Q1) and Ex. P9 (Q2), which means seal of Q1 was opened by CBI. It is submitted that chance of manipulation in Memory Card by CBI officials cannot be ruled out.
95. The Memory Card, Ex. P7 (Q1) was sealed on 29.10.15 and it was opened on 30.10.2015 when the specimen voice of the accused was taken and thereafter, it was sealed with CBI seal and was sent to CFSL alongwith DVR for examination on 06.11.2015 vide letter dt. 06.11.2015, Ex.PW3/DX1 and was returned and was re submitted in the Photo Division of CFSL on 18.11.15 and vide letter dated 05.01.2016, Ex. PW11/C it was collected by the CBI official. Thus, there is nothing on record to create any doubt on the chain of custody of memory card Ex. P7 (Q1). However even if CBI officials opened seal of Q1 on 30.12.2015 for the purpose of taking sample voice of accused and resealed it, there is no illegality or irregularity can be said to have been committed. It cannot be lost sight that memory cards Ex P7 and Ex.P9 were sent to CFSL for examination to check the authenticity of the recorded conversation Page no. 51 of 74
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and to rule out any tampering in the recording and the forensic expert PW3 Amitosh Kumar has categorically stated that there was no tampering in the memory cards, Ex. P7 (Q1) and Ex. P9 (Q2). The report, Ex. PW3/C given by PW3 is reliable and cannot be doubted.
96. It is also contended that as per prosecution, memory card Ex. P9 (Q2) was sealed in the CBI office after hearing the conversation while PW1 stated that conversation in memory card Ex. P9 was heard on the spot. It is submitted that memory card Ex. P9 should have been sealed in the Metro Mall and the aforesaid conduct of the CBI officials only increase the chance of manipulation in Memory Cards, Q2 (Ex. P9). Ld. Counsel for accused has relied upon judgment in "Bahudur Singh v. State of M.P." (supra) passed by the Hon"ble Supreme Court wherein Hon'ble Supreme Court held that "the question of applicability of Section 35 will not rise in the present case when recovery itself is doubtful. The appellant had disputed the recovery of contraband. There are serious discrepancies in its recovery, seizure and deposit in the malkhana. The prosecution has thus failed to prove its case beyond all reasonable doubts against the appellant who is accordingly entitled to benefit of doubt."
97. So far as sealing of memory Card, Q2 (Ex. P9) by the CBI Page no. 52 of 74
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official in CBI office is concerned, no fault can be found inasmuch as the CBI officials were to prepare the recovery memo and were to take sample voice of the accused after lifting sentences from memory card, Ex. P7 (Q1) and Ex. P9 (Q2) and these proceedings could have been done only in CBI office, thus there was no point in sealing the memory card, Ex. P9 (Q2) on the spot on the day of trap. Thus, there is no force in the contention of accused that there is no doubt in the seizure/recovery of articles and thus the judgment filed by the accused does not apply to the facts and circumstances of present case.
98. It is also submitted that broken pieces of the bottle, Ex. P3 as per CBI case, were kept in a cloth and were sealed in an envelope, however, when Ex. P3 was opened, the bottle pieces were wrapped in a polythene which was kept in a cloth and these were kept inside an envelope. It is submitted that it shows that there was manipulation with regard to the sealed parcel.
99. The discrepancy in respect of sealed bottle pieces, Ex. P3 is a minor discrepancy as when the parcel, Ex. P3 was opened the broken pieces of bottle were found to have been kept in a polythene while there is no mention of use of polythene when broken pieces of bottle were initially sealed. This discrepancy does not go to the root of the matter. This parcel was signed by the accused as well as by Page no. 53 of 74
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PW1 and independent witnesses at the time of sealing and when opened in court, the seal of CBI was found intact. No manipulation can be inferred only on the ground that borken pieces were found wrapped in polythene which is not mentioned in recovery memo, Ex. PW1/F. Here it is relevant to mention that the said parcel was bearing CBI seal which after use was given to the PW6 Sh. Anil Kumar who has produced the said seal in the court, therefore, it cannot be said that there has been tampering of the said parcel.
100. Ld. Counsel for accused also contended that sample voice of complainant was not taken by the CBI official, hence the voice contained in the conversation recorded in memory cards Ex. P7 (Q1) and Ex. P9 (Q2) cannot be relied upon. There was no need to take sample voice of the complainant as the complainant has himself appeared as a witness, PW1 in the court and has identified his voice in the aforesaid conversation.
101. Ld. Counsel for accused has contended that there are contradictions in the testimonies of the different witnesses and thus, testimonies of the witnesses cannot be relied upon. Ld. Counsel for the accused has pointed out that PW1, complainant at one place stated that on 29.10.2015 he had visited the CBI office in the morning while in chief examination, he stated that he was present at Page no. 54 of 74
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his rehri when CBI official and independent witness, Anil Kumar came to him for verification of the complaint. It is also submitted that as per testimonies of PW6, Anil Kumar & PW9 S. P. Singh, they met the complainant on 29.10.2015 at his rehri in the morning when they came for verification. It is further pointed out that there are other contradictions regarding location of different persons of CBI team on the day of trap. Ld. Counsel for the accused has placed reliance on the judgment passed by Hon'ble Delhi High Court in "Nepal Singh Rawal v. CBI" (supra) wherein the Hon'ble Delhi High Court observed that "there is no consistency in the statement sof the witnesses andinterse deposition of the witnesses. Every witness is parroting differently, therefore, there is no change in the circumstances. The appellant has succeeded to prove that there is no sufficient material on record to convict him".
102. It is noted that these are minor contradictions in the statement of witnesses but none of these are major contradiction affecting the sanctity of the prosecution case. The judgment cited by Ld. Counsel for accused is not applicable here in present matter as the testimonies of witnesses are consistent and reliable.
103. Here it would be relevant to refer the judgment passed by Hon'ble Supreme Court regarding minor inconsistencies in the testimony of witnesses. In the judgment Shyamal Ghosh Vs. State of Page no. 55 of 74
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West Bengal, AIR 2012 SC 3539. Hon'ble Supreme Court observed :
"47. .........Minor contradictions inconsistencies or embellishments of trivial nature which do not affect the ore of the prosecution case should not be taken to be a ground to reject the prosecution evidence in its entirety. It is only when such omissions amount to a contradiction creating a serious doubt about the truthfulness or creditworthiness of the witness and other witnesses also make material improvements, on contradictions before the court in order to render the evidence unacceptable, that the courts may not be in a position to safely rely upon such evidence. Serious contradictions and omissions which materially affect the case of the prosecution have to be understood in clear contradistinction to mer marginal variations in the statement of the witnesses. The prior may have effect in law upon the evidentiary value of the prosecution case; however, the latter would not adversely affect the case of the prosecution. Another settled rule of appreciation of evidence as already indicated is that the court should not draw any conclusion be picking up an isolated portion from the testimony of a witness without adverting to the statement as a whole. Sometimes it may be feasible that admission of a fat or circumstance by the witness is only to clarify his statement or what has been placed on record. Where it is a genuine attempt on the party of a witness to bring correct facts by clarification on record, such statement must be seen in a different light to a situation where the contradiction is of such a nature that it impairs his evidence in its entirety.
......... Furthermore, whether such omission, variations or discrepancy is a material contradiction or not is again a question of fact which is to be determined with reference to the facts of a given case. The concept of contradiction in evidence under criminal jurisprudence, thus, cannot be stated in any absolute terms and has to be construed liberally so as to leave desirable Page no. 56 of 74
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discretion with the court to determine whether it is a contradiction or material contradiction which renders the entire evidence of the witness untrustworthy and affect the case of the prosecution materially.
104. The testimonies of PW1, complainant, PW6, Shri Anil Kumar and PW8, Shri Mukesh Kumar and CBI officials i.e. PW9, Shri S.P.Singh and PW10 Shri Kamaljeet Singh are cogent, consistent and reliable. The minor inconsistencies are bound to creep in the testimonies of witnesses because of lapse of time. Applying the aforesaid legal proposition, it is a clear that there is no material contradiction or inconsistencies going to the root of the matter and does not materially affect the case of the prosecution. The prosecution has clearly proved that there was demand of bribe on the part of the accused.
Acceptance and Recovery of tainted money :
105. Now, turning to the next question whether there is acceptance of money on the part of the accused and whether there has been recovery of tainted money from the accused.
106. Here testimonies of PW1 Shri Manzoor Ahmad, PW3 Amitosh Kumar, PW5 Ms. Deepti Bhargava, PW6 Shri Anil Kumar, PW8 Shri Mukesh Kumar Jamdagni, PW9 Shri S.P.Singh, PW10 Shri Kamaljeet Singh are relevant.
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107. PW1, the complainant, deposed that on 30.10.2015 he reached CBI office and was introduced with other team members. PW1 produced Rs.3000/ in the denomination of Rs.500/ each and numbers of Govt. currency notes were noted down in the Handing Over Memo dated 30.10.15, Ex.PW1/D and these notes were treated with phenolphthalein powder and were kept in his right side pocket of his kurta by the independent witness, Anil Kumar and he was directed not to touch the said Govt. currency notes. PW1 stated that he was directed to rub his face with both his hands or to give a missed call on the mobile of TLO after transaction is over and the independent witness, Anil Kumar was directed to remain with him. PW1 stated that the CBI team reached near Seelam Pur Metro Station at about 9.00 am on 30.10.15. He stated that the DVR, in which a memory card was inserted, was given to him at the spot. The CBI team members took their positions and at about 10.05 10.10 am, accused Surender came, stopped his bike near his stall and called him by gestures and the complainant approached him. Accused demanded bribe by gestures by his hand and the complainant handed over the bribe amount of Rs.3000/ which accused had taken in his left hand and then transferred to his right hand and then, kept the same in his right side pant pocket. The complainant gave signal by rubbing his face with his both hands.
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108. PW1 further stated that all the team members reached there and inspector Ramesh caught hold of right wrist of accused and Inspector Arjun caught hold of left wrist of the accused. DVR was taken back from him and was switched off and as there was thick crowd, CBI took the accused to Metro Mall and there Right Hand Wash and Left Hand Wash of the accused were taken after preparing the solution of sodium carbonate and when accused dipped his hands in the solution, the solution turned pink and it was transferred in separate bottles. Independent witness, Mukesh Kumar recovered the bribe amount from the right side pant pocket of accused Surender and the numbers of the notes were tallied with the Handing Over Memo. Thereafter, wearing pant of the accused was taken by CBI and right side pant pocket wash was taken which also turned pink and it was transferred in a bottle and the bottle was given to the accused for signing however, while signing the bottle accused threw the bottle and bottle was broken. The broken pieces of the bottle were collected and separately sealed. Pant of the accused was also sealed separately. A rough site plan, Ex.PW1/E was also prepared. The complainant stated that he narrated the incident to TLO. It is also stated that recovered bribe amount of Rs.3000/ was kept in an envelope and was sealed. Accused was arrested and they all proceeded to CBI office and there Recovery Page no. 59 of 74
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Memo, Ex. PW1/F, was prepared. Subsequently, in the month of December, 2015, transcription of Memory Cards, Ex.P7 (Q1), Ex. P9 (Q2) and Ex. P8 (S1) was prepared.
109. Independent witnesses, PW6 Shri Anil Kumar and PW8 Shri Mukesh Kumar Jamdagni deposed almost on the same lines. PW9 Shri S. P. Singh was also the part of the team and has deposed on the same lines. PW10 Shri Kamaljeet Singh, TLO, deposed about the trap proceedings in detail, which shall be discussed at the relevant place.
110. I have perused the testimony of aforesaid witnesses. The testimony of PW1 Shri Manzoor Ahmed is reliable and consistent and there is nothing to discredit the testimony of PW1. PW1 has clearly stated that the accused has accepted Rs.3000/ which were handed over to accused by him. The complainant said in conversation "us din do diye the tumhe" and accused asked "ye kitne hai" and complainant said "teen pure hee hai.......aur Surender bhai ek dafa Jitender Bhai se agar baat karaa do.......meharbaani tumhari". This part of conversation is recorded in memory card, Ex.P9 (Q2) during trap proceedings. It only shows that accused has willingly accepted the said money. Further, immediately after receipt of bribe money, fingers of the accused Page no. 60 of 74
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were dipped in the sodium carbonate solution, which turned pink and pink colour solution was kept in different bottles marked RHW, Ex. P1, marked LHW, Ex. P2 and pant pocket wash was also taken and the bottle containing the said wash was allegedly thrown by the accused and was broken. Further, the bribe amount were recovered from the right side pant pocket by the independent witness and number of govt. currency notes were tallied with the numbers of notes noted in the Handing Over Memo, Ex.PW1/D. It is also established that bribe amount was recovered from the person of the accused.
111. Report of the Chemical Examiner and testimony of the Chemical Examiner, PW5 Ms. Deepti Bhargava, leaves no doubt that bottles marked RHW, Ex.P1 and LHW, Ex. P2 containing the hand washes of the accused gave positive result for presence of phenolphthalein. The pant was also sent to CFSL for Chemical examination and the pant wash was also found to have contained the phenolphthalein.
112. PW3 Shri Amitosh Kumar has given his report Ex. PW3/C which clearly shows that memory cards, Ex.P7 (Q1)), Ex.P9 (Q2) and Ex.P8 (S1) were not tampered with and it lends support to authenticity regarding the conversation recorded in the memory Page no. 61 of 74
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card. Further, PW6 Shri Anil Kumar and PW8 Shri Mukesh Kumar, the independent witnesses and CBI officials, PW9, Sh. S.P.Singh and PW10, Sh. Kamaljeet Singh have clearly stated about these proceedings and there is no major contradiction in the statement of these witnesses. Thus, it is clear that accused has accepted the bribe money from the complainant. There is also no doubt regarding recovery of tainted amount from the accused.
113. Now, I deal with the different contentions of Ld. Counsel for the accused. Ld. Counsel for accused contended that rough site plan is in contradiction with the testimony of the Trap Laying Officer. He pointed out that gate of the Metro Mall wherefrom they entered inside the metro mall has not been shown in the site plan and further, the location of different persons as shown in the site plan is different from what different witnesses stated. Here, it needs to be stated that the said rough site plan was prepared by CBI officials on the spot and discrepancies, if any, in the site plan does not affect the case of the prosecution and these are the minor discrepancies. Even otherwise it was a rough site plan and not the site plan prepared with measurement and as per scales.
114. One of the contentions of the counsel for the accused is that PW 5 Ms. Deepti Bhargava, Chemical Examiner, has stated that Page no. 62 of 74
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when the phenolphthalein powder is added to sodium carbonate solution, a compound, namely, Disodium Salt of Phenolphthalein is formed. It is submitted and when once said compound is formed then how it is possible to segregate phenolphthalein from the said solution. PW5, Deepti Bhargava has clearly stated that before performing the TLC (Thin Layer Chromatography) Technique they go through the extraction procedure of phenolphthalein from the solution containing sodium carbonate and di sodium salt of phenolphthalein. Thus, there is no substance in the contention of the counsel for the accused. PW5, Ms. Deepti Bhargava has proved the Chemical Examination report dt. 7.12.2015, Ex. PW5/B and there is no reason to disbelieve the said report.
115. One of the contentions of the Ld counsel for the accused is that it is not clear from the record that original memory cards, Ex. P 7 (Q1), Ex. P9 (Q2) were sent to CFSL for examination. The letter dated 06.11.2015, Ex. PW3/DX1, letter dated 11.12.2015, Ex. PW3/A, letter dt. 1.12.2015, Ex. PW11/A and letter dated 05.01.2016, Ex. PW11/C clearly shows that original memory cards Q1 and Q2 were sent and nowhere it is written in these letter that copies of memory cards were sent and wherever, the copies of the memory cards have been sent from one place to another, the same has been specifically mentioned in these documents.
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116. One of the contentions of the Ld. Counsel for the accused is that the proceedings regarding preparation of transcriptions Ex. PW1/H and PW1/I of memory cards continued till 6.00 pm on 11.12.2015 then how it is possible that memory cards, Ex. P7 and P9 were forwarded to CFSL for examination on 11.12.2015 itself. Here, it needs to be mentioned that Voice identification cum transcription memo dt. 11.12.2015, Ex.PW1/G shows that transcriptions of Memory cards P7(Q1) and P9(Q2) was prepared by the Investigating Officer from the copies of the memory cards and the original memory cards were forwarded to CFSL vide letter dated 11.12.2015. Hence, I do not find any discrepancy on this account on the part of the CBI.
117. It is also the contention of the counsel for the accused that as per case of CBI, independent witness Mukesh Kumar Jamdagni, PW8 took out tainted money from the pocket of accused and it was sealed on the spot while PW4 Mukesh Kumar Jamdagni has stated that he took out money and kept with him in his pocket and it was sealed in the CBI office. No doubt there is contradiction regarding place of sealing of Government Currency Notes/tainted money as Pw8 has stated that it was sealed in CBI office while other witnesses i.e. PW1,complainant, PW6 Anil Kumar, PW9, S.P.Singh and Page no. 64 of 74
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PW10, Kamaljeet have categorically stated that tained money was sealed in Metro Mall. It needs to be recoreded that testmony of PW8, Mukesh Kumar was recorded after about 4 years of the incident, hence there is every likelihood of such inconsistencies on account of lapse of memory. However, it has already come in the testimony of different Prosecution witnesses that number of government currency notes (tainted money) were noted down in the Handing Over Memo and after recovery from the pant pocket of the accused, same were tallied with the Handing Over Memo, which was signed by the independent witnesses again in token of matching the number of currency notes. Thus, there is no doubt that the Government Currency Notes, which were brought by the complainant with him and which were applied with phenolphthalein powder, were recovered from the accused.
118. Ld. Counsel for accused has contended that prosecution has failed to establish that there was demand on the part of the accused and in the absence of demand of money, the alleged recovery of money is of no consequence. It is also submitted by the counsel for the accused that in the absence of demand Section 20, P.C. Act cannot be invoked. Ld. Counsel for accused referred to the judgments passed by the Hon'ble Supreme Court in "N. Vijayakumar v. State of Tamil Nadu" (supra) and "Mukhtiyar Singh Page no. 65 of 74
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v. State of Punjab" (supra) and "B. Jayaraj v. State of A.P." (supra), "Suraj Mal v. State (Delhi Admin.) (supra) and "C. M. Girish Babu v. CBI, Cochin" (supra).
119. It has already been discussed in detail that demand of bribe amount on the part of the accused has been clearly established by the prosecution.
120. The prosecution has also established acceptance of tainted amount by accused and recovery of tainted amount has also been proved by the prosecution. Thus, the aforesaid judgment relied upon by the Ld. Counsel for accused does not apply to the present case.
121. Another contention of the counsel for the accused is that the prosecution has not examined Rehan, son of the complainant, who was present on the spot on the day of trap and autowala, who was conversing with the complainant on the day of verification or on the day, when trap was laid. It is submitted that prosecution also did not examine Faheem, nephew of complainant on the point of demand of bribe and all these were the material witnesses. It is also submitted that although it has been alleged by PW1 complainant Page no. 66 of 74
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that one Mr. Jitender has demanded bribe from the complainant but he has neither been made accused nor witness and thus, it creates grave suspicion on prosecution case. Ld. Counsel for accused has relied upon the judgments, "Khatri Hemraj Amulakh v. State of Gurarat"
(supra), "Deny Bora v. State of Assam" (supra) and "Takhaji Hiraji v. Thakore Kubersing Chamansing" (supra) passed by Hon'ble Supreme Court.
122. In "Khatri Hemraj Amulakh v. State of Gurarat" (supra), Hon'ble Supreme Court held that "The nonexamination of material witnesses would give rise to an inference that if the said witness is examined, he would not have supported the case of the prosecution."
123. In "Deny Bora v. State of Assam" (supra), Hon'ble Supreme Court held that "Non examination of material witnesses will always create a dent on the prosecution case."
124. In "Takhaji Hiraji v. Thakore Kubersing Chamansing"
(supra), it has been observed by the Hon'ble Supreme Court that " it is true that if a material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or examined, the Page no. 67 of 74
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prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the case of the prosecution."
125. On the other hand, Ld. Counsel for CBI has relied upon the judgments, "C.M. Sharma v. State of Andhra Pradesh" (supra), "Tahir v. State (Delhi Administration)" (supra) and "Karamjit Singh v. State (Delhi Administration)" (supra) passed by Hon'ble Supreme Court.
126. In "C. M. Sharma v. State of Andhra Pradesh" (supra), Hon'ble Supreme Court held that "on appreciation of evidence, witnesses can be broadly categorized in three categories viz., unreliable, partly reliable and wholly reliable. In case of a partly reliable witness, the court seeks corroboration in material particulars from other evidence. However in a case in which a witness is wholly reliable, no corroboration is necessary."
127. In "Tahir v. State (Delhi Administration)" (supra), the Hon'ble Supreme Court held that " Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence Page no. 68 of 74
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of some independent witness of the locality to lend corroboration to their evidence does not in any way affect the creditworthiness of the prosecution case."
128. In "Karamjit Singh v. State (Delhi Administration)" (supra) the Hon'ble Supreme Court held that "The testimony of the police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds."
129. The prosecution has examined complainant as PW1, two independent witnesses, PW6 Shri Anil Kumar, Account Assistant, DSIIDC and PW8 Shri Mukesh Kumar, Assistant Grade1, DSIIDC and CBI officials, PW9 Shri S. P. Singh, Verification Officer, PW10 Shri Kamaljeet Singh, TLO and Anil Kumar Singh, IO, who were present on the spot on the day of laying trap, are the material witnesses and have deposed consistently and are the reliable witnesses. At the time of verification, PW1, complainant, PW6 Anil Kumar Singh and PW9 S. P. Singh, Verification Officer were present on the spot and were examined. It is well settled that Page no. 69 of 74
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number of witnesses is not material to the prosecution case and what matters is the quality of witness. It was prosecution's prerogative to examine the witnesses, who they consider to be material and who may prove their case. Thus nonexamination of Rehan, son of complainant and autowala has no effect on the case of prosecution. The contention of the Ld. Counsel for the accused is without any substance and is liable to be rejected. So far as Jitender is concerned, Prosecution has already explained that there was no sufficient material against Mr. Jitender to chargesheet him as accused.
Causing Disappearance of Evidence
130. Now I turn to the last point of determination, as to whether accused has caused disappearance of evidence of offence. Here it is relevant to reproduce section 201 Cr. PC. It reads as under:
201. Causing disappearance of evidence of offence, or giving false information to screen offender.--Whoever, knowing or having reason to believe that an offence has Page no. 70 of 74
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been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false; .............
.............
"if punishable with less that ten years' imprisonment. and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to onefourth part of the longest terms of the imprisonment provided for the offence, or with fine, or with both."
131. The essential ingredients of section 201 IPC are that an offence must have been committed and accused knew about commission of an offence and has caused disappearance of evidence with the intention of screening of offender from legal punishment.
132. The testimonies of PW1 Shri Manzoor Ahmed, PW6 Shri Anil Kumar, PW8 Shri Mukesh Kumar, PW9 Shri S. P. Singh and PW10 Shri Kamaljeet Singh are relevant to decide the aforesaid point of determination. PW1 has stated that accused Surender Singh was Page no. 71 of 74
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taken inside Metro Mall and after conducting some proceedings regarding taking right hand wash and left hand wash of accused, sodium carbonate solution was prepared and right hand side pant pocket was dipped in solution and solution turned pink and it was transferred to a glass bottle and bottle was marked as RPPW and was wrapped with cloth and was sealed. PW1, TLO and independent witnesses signed on the label pasted on the bottles and the said bottle was given to accused for signing it and while signing the bottle, the accused thrown the bottle and bottle was broken. The pieces of broken bottle were collected by CBI team and kept in a cloth and was sealed in an envelope. PW1 has identified the broken pieces of bottle as Ex. P3. PW8 Shri Mukesh Kumar Jamdagni has stated that accused's pant wash was taken and the colour of the solution turned pink and it was poured in a bottle, however, the hand of the accused struck against the bottle and the bottle fell down and was broken and the CBI officials collected the remaining pieces of the said bottle and sealed them. Another independent witness, PW6 Anil Kumar has stated that accused had hit the bottle on his head and it was broken. There are different versions as to how the bottle containing RPPW was broken. In the recovery memo, it is stated that accused has broken the bottle containing Right Side Pant Pocket Wash of the accused while PW6 Anil Kumar stated that accused had hit the bottle on his head and it was broken. PW8 Sh. Mukesh Page no. 72 of 74
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Kumar stated that this bottle containing right side pant pocket wash fell down and was broken. There is contradiction in the statements of the witnesses on this aspect. Although, the prosecution succeeded in proving that the bottle was containing the material evidence and it was also proved that the bottle was in the hand of accused as was given to accused for putting his signature, however, the prosecution failed to prove that accused has thrown the bottle or deliberately broken the said bottle. One of the prosecution witnesses has stated that accused had hit the bottle on his head, which appears to be incorrect statement as no injury was reported on the head of the accused. PW8 Mukesh Kumar stated that bottle fell down and did not state that accused has thrown the bottle. Further, it is to be noted that accused has signed the bottle containing Left Hand Wash, Ex. P1 and Right Hand Wash, Ex. P2 and handed over to TLO after signing. It is also apparent from the record that accused had signed the packet containing broken pieces of bottle, Ex. P3 collected from spot. Therefore, it is very unlikely that he would throw the last bottle which was given to him for signing. Nothing has been surfaced from the evidence of the witnesses that accused had deliberately broken the said bottle and it is very much likely that under these circumstances, the bottle might have fell from his hand and was broken. Thus, prosecution has failed to prove the ingredients of the offence under section 201 IPC. The accused is Page no. 73 of 74
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accordingly acquitted for the offence U/S 201 IPC.
133. Pondering over the ongoing discussion, I am of the considered opinion that prosecution has succeeded to bring home the guilt of accused beyond the shadow of all reasonable doubts for the offences punishable under Section 7 and Section 13 (1)(d) of the Prevention of Corruption Act, 1988 which is punishable under Section 13(2) of the Prevention of Corruption Act, 1988, thus, I hereby hold the accused Surender Singh guilty thereunder.
ANNOUNCED IN THE OPEN COURT AS ON THIS 20th DAY OF DECEMBER, 2021. (ARVIND KUMAR) Special Judge (PC Act) (CBI)10 Rouse Avenue Courts Complex New Delhi.(pk) Page no. 74 of 74