Delhi District Court
Cbi vs Virender Singh Chauhan on 23 March, 2012
IN THE COURT OF SHRI P.S. TEJI : DISTRICT JUDGE &
ADDL. SESSIONS JUDGE, I/C (EAST) cum SPECIAL JUDGE
(CBI), KARKARDOOMA COURTS, DELHI.
AC No.05/2006
Unique Case ID No.02402R0112812006
FIR No.RCDAI2004A0027DLI
U/s 7 and 13(2) r/w Sec.13(1)(d) of PC Act, 1988.
CBI Versus Virender Singh Chauhan
S/o Gian Singh
R/o Qr. No.4, Police Colony,
Lajpat Nagar, New Delhi.
Permanent resident of 341, Village
Madan Pur Khadar, PS Sarita Vihar,
New Delhi 110076.
Date of Institution : 22.02.2006
Date of judgment reserved : 12.03.2012
Date of judgment : 23.03.2012
JUDGMENT
Accused Virender Singh Chauhan (on bail) has been sent to face trial by the Anti Corruption Branch of the CBI, for the offences punishable under Section 7 and 13(2) read with Section AC No.05/2006 CBI Vs. Virender Singh Chauhan Page 1 of 54 13(1)(d) of PC Act, 1988.
2 At the time of commission of the offence, accused was posted as SHO, PS Kalyan Puri, Delhi.
3 Briefly stating, the facts of the present case are that the FIR, Ex.PW10/C of the present case was registered against the accused on the basis of a written complaint dated 03.06.2004, Ex.PW10/A made by Mohd. Sharif (PW10) (hereinafter shall be referred as complainant) to the CBI written by Akram Khan(PW14). In the complaint Ex.PW10/A, it was alleged that the complainant was scrap dealer having his shop at Gazipur Main Road. It was alleged that on 01.06.2004, Beat Constable of PS Kalyan Puri came to the shop of the complainant at about 4.30 p.m. and informed that he was called in the PS Kalyan Puri by the SHO Virender Chauhan. In the evening, complainant went to PS and met SHO Virender Chauhan who told that some complaint had bee received against him with regard to purchase of stolen articles by him. SHO also threatened him to register a case against him and send him to jail. On asking, SHO refused to show him the alleged complaint and demanded Rs. 10,000/ to save the complainant. On the request of complainant, SHO agreed to receive Rs. 5,000/ as first installment and asked the AC No.05/2006 CBI Vs. Virender Singh Chauhan Page 2 of 54 complainant to give the money within a day or two. On 3.6.2004, complainant managed Rs. 5,000/ and made a complaint Ex.PW10/A to the CBI as he did not want to pay bribe to SHO Chauhan. 4 Trap team consisting of TLO Inspector A.K.Pandey(PW13), Inspector C.K.Sharma, Inspector S.S.Bhullar(PW15), SI Prem Nath, SI R.C.Sharma was formed. Two independent witnesses namely, Sh. Atlesh Kumar Sharma (PW11) and Gajender Pal Sharma (PW12) were arranged. Both the independent witnesses and trap party members were introduced to each other. Complaint was also shown to the independent witnesses. Thereafter, complainant (PW10) produced a sum of Rs. 5,000/ in the denomination of 1 GC note of Rs. 1,000/, 5 GC notes of Rs.500/ and 15 GC notes of Rs.100/ denomination each, numbers of which were recorded in handing over memo Ex.PW10/D. Inspector C.K.Sharma treated the GC notes with phenolphthalein powder and gave practical demonstration of its reaction with sodium carbonate. The significance of phenolphthalein powder's reaction with sodium carbonate solution was explained by practical demonstration. Independent witness Gajender Pal Sharma (PW12) was directed to act as shadow witness and accompany the complainant in order to see AC No.05/2006 CBI Vs. Virender Singh Chauhan Page 3 of 54 and overhear the conversation of transaction of bribe. Shadow witness Gajender Pal Singh(PW12) was directed to give signal to the trap party by scratching his head with both of his hands after transaction of bribe. Complainant was also directed to hand over the bribe money to the accused on his specific demand. Other independent witness Atlesh Kumar Sharma was directed to remain with the trap party. A digital voice recorder along was arranged and introductory voices of both the independent witnesses were recorded therein. The digital recorder was given to the complainant to record the spot conversation between him ad the accused. Complainant was also directed to switch it on before moving towards accused. Complainant was also directed to give signal from his mobile No. 56179431 on CBI mobile No. 9818615642 to the trap party after transaction of bribe. A leather bag containing empty clean glass bottles, tumblers, sodium carbonate powder, sealing material and phenolphthalein powder was arranged. The pretrap proceedings conducted in CBI office were recorded in Handing Over Memo Ex.PW10/D. 5 After conclusion of pretrap proceedings in CBI office, trap party along with complainant and both above independent witnesses left the CBI Office and reached in the vicinity of PS Kalyan AC No.05/2006 CBI Vs. Virender Singh Chauhan Page 4 of 54 Puri at about 1.40 p.m. Complainant was directed to swtich on the digital recorder before meeting the accused and he was sent inside the PS and independent witness Gajender Pal Sharma was directed to follow him. After sometime, a police Gypsy arrived and accused alighted therefrom. Complainant approached him near his office. Accused took the complainant to his office. After a few minutes, accused came outside his office and asked shadow witness the purpose of his visit and took him to main entrance of the PS. In the meantime, Inspector A.K.Pandey received preappointed signal on CBI mobile telephone No. 9818615642 from the mobile No. 56179431 of complainant. Accused was challenged and he refused to have accepted any bribe and he tried to escape from the spot. When Sh. Pandey disclosed his identity, accused pushed him aside and threw the tainted bribe money on the ground after taking it out from his left side pant pocket. In the meantime, other members of the raiding team also reached and caught hold of accused. CBI staff and one independent witness,namely, A.K.Sharma was deployed near the tainted money for its security and safe custody. Thereafter, on insistence of the accused, he was taken to the roof of ACP on the first floor and matter was explained to Sh. R.K.Joshi, ACP. AC No.05/2006 CBI Vs. Virender Singh Chauhan Page 5 of 54 6 Thereafter, washes of right hand and left hand of accused was taken which turned into pink colour. The washes were transferred in glass bottles marked RHW and LHW Ex.P2 and Ex.P3 respectively and their cloth wrappers are Ex.P27 and Ex.P28. Complainant disclosed that accused took him inside his room and inquired about bribe money by gesture to which he replied in affirmative. Complainant took out money and gave it to accused who accepted the same by his left hand, counted with both hands and then kept the same in his left side pant pocket. He further disclosed that when challenged, accused took out money and threw it on the ground near varandah. Thereafter, accused was brought to his room and asked to remove his pant. Inner left side pant pocket of accused was dipped into colourless solution which turned into pink colour. The same was transferred to a bottle which was marked as LSPPW Ex.P4 and its cloth wrapper is Ex.P29. The tainted bribe amount Ex.P5 to Ex.P25 lying on the ground in scattered position was recovered by independent witness Atlesh Kumar Sharma(PW11) in the presence of Gajender Pal Sharma(PW12) and CBI members. On comparison, they informed that number of recovered GC notes tallied with the numbers mentioned in the handing over memo Ex.PW10/D. Digital AC No.05/2006 CBI Vs. Virender Singh Chauhan Page 6 of 54 recorder was taken back from complainant and the conversation recorded in it was heard which confirmed the demand and acceptance of bribe by accused. The recorded conversation was transferred to audio cassette Ex.P30, its inlay card is Ex.P31 and cloth wrapper is Ex.P32. The conversation of the said cassette was later on reduced into writing vide transcription Ex.PW11/E. Transcription cum voice identification memos Ex.PW10/F and Ex.PW11/F were prepared. The pant Ex.P26 of the accused was seized. Accused was arrested vide personal search cum arrest memo Ex.PW11/A. During his search, one slip Ex.PW11/C was recovered in which money against names of several persons was mentioned. IO prepared rough site plan Ex.PW11/B. The proceedings conducted at the spot were recorded in recovery memo Ex.PW10/E. 7 During investigation, it revealed that there was no complaint pending against complainant(PW10) and certified copy of complaint register Ex.PW9/A of PS Kalyan Puri w.e.f. 25.05.2004 to 4.6.2004 was seized. On 4.6.2004, specimen voice of accused was taken vide memo Ex.PW11/D. Voice was transferred in audio cassette Ex.P33, its inlay card is Ex.P34 and cloth wrapper is Ex.P35. The specimen handwritings Ex.PW11/G1 to G9 of accused was AC No.05/2006 CBI Vs. Virender Singh Chauhan Page 7 of 54 taken on 7.6.2004 in the presence of witness A.K.Sharma(PW11). In the presence of another witness Bansi Dhar(PW4), specimen handwritings of accused Ex.PW4/1 to Ex.PW4/8 were taken on 22.09.2005. During investigation, vide letter dated 8.7.2005 Ex.PW8/A, DCP(East), Delhi Police forwarded admitted handwritings of accused Ex.PW8/B to Ex.PW8/L to the CBI. The call details of mobile phone No. 9818615642 Ex.PW6/B were obtained vide seizure memo Ex.PW6/A. The subscriber details of said phone is Ex.PW6/C. Call details in respect of phone No. 56179431 were also obtained and placed on record. 8 During investigation, the washes as well as cassettes containing conversation at the spot, specimen voice and handwritings of accused were sent to CFSL for obtaining expert's opinion vide covering letters Ex.PW16/X2, Ex.PW16/X1, Ex.PW16/A and Ex.PW16/B respectively. Voices contained in cassettes were examined in FSL by Sh. Rajender Singh (PW1) vide report Ex.PW1/A, whereas washes in FSL were examined by Sh. C.L.Bansal (PW2) vide report Ex.PW2/A. Handwritings of accused were examined by Sh. S.L.Mukhi(PW17) and report Ex.PW17/A has been given. The sanction Ex.PW5/A for prosecution of accused was AC No.05/2006 CBI Vs. Virender Singh Chauhan Page 8 of 54 accorded by Sh. B.S. Brar (PW5) (wrongly typed as B.S.Barar), the then Joint Commissioner of Police, New Delhi Range. 9 After completion of the investigation, the challan was put up in the court where the accused was supplied with the copies of the chargesheet and the documents of the CBI.
10 The charges under Section Section 7 and 13(2) read with 13(1)(d) of P.C. Act were framed against accused on 29.8.2009 which reads as under :
" Firstly that, you Virender Singh Chauhan, being a public servant while working as SHO PS Kalyan Puri, Delhi called Mohd. Sharif in the evening of 1.6.2004 at PS Kalyan Puri and threatened him to register a case and arrest him in connection with complaint of purchase of stolen goods and demanded bribe of Rs.10,000/ from Mohd. Sharif for not doing so and on asking of Mohd. Sharif fixed the amount to Rs. 5,000/ as first installment and you on 3.6.2004 at about 1.40 p.m. in pursuance of above demanded and accepted Rs.5,000/ from Sh. Mohd. Sharif at PS Kalyan Puri and thereby committed an offence under Section 7 of the Prevention of Corruption Act, 1988 and within my cognizance.
Secondly, that you Virender Singh Chauhan while working in the abovesaid capacity on the abovesaid date and place by corrupt or illegal means or by otherwise abusing your position as public servant obtained the AC No.05/2006 CBI Vs. Virender Singh Chauhan Page 9 of 54 pecuniary advantage to the tune of Rs. 5000/ and thereby committed an offence specified in Section 13(1)
(d) punishable under Section 13(2) of the P.C. Act,1988 and within my cognizance."
11 Accused pleaded not guilty to the charges framed against him and claimed trial.
12 The prosecution has examined 17 witnesses in support of its case. Out of those witnesses, PW 10 Mohd. Sharif is the complainant whereas PW14 Akram Khan is the writer of complaint. PW11 Atlesh Kumar Sharma and PW12 Gajender Pal Sharma are the independent witnesses of the trap whereas PW4 Bansi Dhar is the independent witness of specimen handwriting of accused. PW1 Sh. Rajender Singh examined the voices in the FSL, PW2 C.L.Bansal examined the washes in laboratory whereas PW17 Sh S.L.Mukhi examined handwritings of accused in CFSL. PW3 Sh.R.K.Joshi was the ACP of the area at that time. PW8 SI Nagender Kumar proved sending of admitted handwriting of accused to the CBI. PW9 Inspector Shyam Sunder Kaushik was the successor of accused as SHO. PW6 R.K.Singh and PW7 M.N.Vijayan proved the call details record of mobile No. 9818615642 as well as of complainant. PW5 Sh. B.S.Brar accorded sanction of accused. PW15 AC No.05/2006 CBI Vs. Virender Singh Chauhan Page 10 of 54 Inspector S.S.Bhullar remained associated with the investigation conducted by Investigating Officers PW13 Inspector A.K.Pandey and PW16 Inspector Shyam Parkash.
13 Statement of accused has been recorded under Section 313 Cr.PC. The accused has denied the present case against him. He has stated that he is innocent and has been falsely implicated in the present case. No money was ever demanded or accepted by him from the complainant. On 3.6.2004, he left the police station at about 9.30 AM for routine patrolling of the area. As soon as he boarded the official vehicle, he got a phone call from DCP (East) and was instructed to remain in the police station in connection with a case of gang rape, therefore, he deboarded the vehicle and came to police station. He discussed the matter of gang rape with the IO and instructed duty officer not to allow any person to meet him in the chamber. He remained in the chamber till 1.45 or 1.50 PM. Thereafter, he came out of his room and asked the duty officer to call his driver and wireless operator as he had to go in the area for round. When he was waiting for them in front of reception, 45 persons came running in civil dress and when he asked them as to what was the matter, they grappled with him. In the meantime, 1020 more persons AC No.05/2006 CBI Vs. Virender Singh Chauhan Page 11 of 54 also came and grappled with him. Duty officer, other officials of police station and public persons tried to intervene but Inspector Pandey threatened them to stay away by showing his Icard and threatened the duty officer to get the whole police station suspended. He was overpowered by 67 persons and was forcibly taken to the room of ACP at the first floor. He was made to sit there and nothing was done in his presence. He was removed to CBI office at about 6.30 PM. No documents were prepared by the CBI team in the police station. His hand washes and pant wash were not taken in the police station and they were subsequently planted. He did not refuse to sign any document. Tainted money has been planted upon him. At the time of grappling and before that, one Anshu Aggarwal of Ghaziabad was present as he was waiting to meet him outside his chamber. No paper slip was recovered from his personal search nor the sample voice or sample handwriting was taken by the IO. Complainant and panch witnesses have not supported the prosecution case. Accused opted to lead evidence in his defence and has examined as many as four witnesses, namely, DW1 HC Dharmender, DW2 Anshu Aggarwal, DW3 HC Arvind Kumar and DW4 HC Surender Pal. 14 I have heard Shri S. Krishna Kumar, learned PP for AC No.05/2006 CBI Vs. Virender Singh Chauhan Page 12 of 54 CBI and Sh. Sanjay Gupta, Ld. Counsel for accused. I have also carefully gone through their submissions and the material available on record.
15 It has been argued by Ld. PP for CBI that from the complaint as well as testimony of witnesses, it has been duly proved that accused demanded and accepted bribe from the complainant. He has further argued that a trap was laid and during trap, accused was caught red handed at the spot while demanding and accepting bribe money. Though, public witnesses have not supported the case of prosecution on some aspects, but their testimony is sufficient to bring home the guilt of accused as the testimony of witnesses cannot be discarded in toto when they become hostile on some aspects. He has further argued that the reports of wash, voice and handwriting Experts also go to prove the case of the prosecution.
16 On the other hand, Ld. defence counsel has argued that the initial demand of bribe as well as demand at the spot has not been proved by the prosecution. He has vehemently argued that neither the complainant nor the public witnesses have supported the case of prosecution. Their testimony is of no help to the prosecution to base the conviction of accused. Recovery of alleged bribe money AC No.05/2006 CBI Vs. Virender Singh Chauhan Page 13 of 54 was not effected from the accused and its recovery is doubtful. There was no occasion with the accused to demand bribe from the complainant. Documents and other material prepared at the spot is in doubt as the same have been fabricated. There is tampering in the recorded conversation. The washes taken at the spot have not been duly proved. It is further argued that accused has been falsely implicated in the present case by the complainant in connivance of CBI officials.
17 Our own Hon'ble High Court in case titled Ram Chander Versus State (Reported in 2009 Cri. L.J. 4058) has framed the guidelines in trap cases. In the said judgment, it was observed that to succeed in trap cases, the prosecution is obliged to prove the previous demand of bribe, its acceptance and the recovery of tainted money. It was further observed that the demand can be proved by the testimony of complainant as well from the complaint made by him. Demand of bribe at initial stage 18 Case of the prosecution is that on 1.6.2004, a constable approached the complainant (PW10) that the accused being SHO of PS Kalyan Puri had called him in police station. It is further case of the prosecution, that in the evening of that day, accused AC No.05/2006 CBI Vs. Virender Singh Chauhan Page 14 of 54 demanded the bribe of Rs.10,000/ from the complainant (PW10) for not booking him in a case and not arresting him. On the insistence of complainant, accused agreed to receive first installment of Rs.5,000/ from the complainant and asked him to pay the money within a day or two. Perusal of complaint Ex.PW10/A shows that the same facts have been mentioned by the complainant therein.
19 On the other hand, Ld. defence counsel has argued that the prosecution has failed to prove the making of initial demand of bribe by accused. He has submitted that the contents of complaint Ex.PW10/A have not been corroborated by any evidence. The complainant has put up an entire new story during his testimony in the court. The complainant has not identified the accused in the court. In support of his submissions, he has relied upon judgments in case of Panalal Damodar Rathi Vs. State of Maharashtra, 1980 SCC (Cri) 121 in which it was observed that the demand of bribe needs corroboration. He has relied upon another case titled Ram Chander Vs. State (Govt. of NCT of Delhi), 2009 (4) RCR (Criminal) 880 in which it was held that the prosecution has to prove the demand by accused twice, firstly before the trap and secondly at the time of trap.
AC No.05/2006 CBI Vs. Virender Singh Chauhan Page 15 of 54 20 Ld. Defence counsel has further relied upon the judgment in case of Subash Parbat Sonvane Vs. State of Gujarat, AIR 2003 SC 2169 in which it was observed that it was unreasonable to hold that accused demand money from the complainant as the complainant denied the said story and panch witnesses had not stated so. In Banarsi Dass Vs. State of Haryana, AIR 2010 SC 1589 it was similarly held that demand and acceptance of bribe is must in trap cases.
21 The complainant (PW10) has not corroborated the facts of his complaint Ex.PW10/A during his testimony in the Court. He deposed that on 1.6.2004, one police man came to his house and asked that SHO PS Kalyan Puri had called him. After half an hour, complainant reached PS Kalyan Puri at about 4.30 p.m. The complainant met one police man and said that he had to meet the SHO to which the said person said that he was the SHO but had not disclosed his name. That police man told that there was a complaint against him regarding keeping stolen goods to which complainant said that he was not engaged in such type of work. That police man said that if complainant had to escape from jail, he had to pay Rs. 10,000/. On asking, complainant told that he was having only Rs. AC No.05/2006 CBI Vs. Virender Singh Chauhan Page 16 of 54 5,000/ and then he handed over Rs. 5,000/ to that police man. Complainant has further deposed that police man warned him to pay remaining Rs. 5,000/ within three days failing which he would be lodged in jail. The complainant has specifically stated that the said police man was not present in the Court.
22 The complainant has not identified the accused to be the person with whom he had deliberation in the Police Station. He has not identified the accused as the person who demanded money from him in the PS. Even otherwise, the complainant during his testimony in the Court has made material improvements. In his complaint Ex.PW10/A, there is no mention of payment of Rs. 5,000/ in the PS to the accused whereas in his deposition in the Court, he has stated that on 1.6.2004, he made the payment of Rs. 5,000/ to the police man. This story of payment of bribe of Rs. 5,000/ on 1.6.2004 saw the light of the day in the court for the very first time. If the contents of the complaint Ex.PW10/A are to be believed, then it was the first installment which the accused demanded for which trap was laid on 3.6.2004. But on the other hand if the testimony of the complainant is to be believed that he had already made the payment of Rs. 5,000/ to a police man in the PS on 1.6.2004 itself, then it does AC No.05/2006 CBI Vs. Virender Singh Chauhan Page 17 of 54 not appeal to the reasons that he had gone to PS to make payment of first installment to accused. These improvement/contradictions are material and substantial which go to the root of the case which has not been clarified by the prosecution. (Reliance : Sat Pal Negi vs. State of Haryana, 1996 ( 1) CC Cases 64).
23 The genuineness of the complaint Ex.PW10/A is also in doubt in view of the fact that complainant(PW10) during cross examination by Ld. PP for the CBI has voluntarily stated that the complaint which was written prior to going to PS by Akram was not containing the name of SHO. He stated that after coming back from the PS, Kalyan Puri, name of SHO was mentioned by writing another fresh complaint. He denied the suggestion that the complaint Ex.PW10/A contains correct facts about the name of accused as Virender Singh Chauhan, SHO PS Kalyan Puri. The said complaint was read over to the complainant (PW10) who accepted the contents of the complaint to be true except the name of SHO as Virender Singh Chauhan. He further stated that the complaint was written by his friend Akram on his direction, but he voluntarily stated that the name of Virender Chauhan was not written at that time.
24 During cross examination by ld. Defence counsel, AC No.05/2006 CBI Vs. Virender Singh Chauhan Page 18 of 54 complainant stated that he signed documents on the request of CBI officials. He clarified that the documents which CBI officials made him to sign were put to him after 2/3 months of the day when he had gone to PS Kalyan Puri. This shows that all the documents including complaint Ex.PW10/A were prepared after 2/3 months of the occurrence.
25 Scriber of the complaint Ex.PW10/A, namely, Akram has been examined as PW14 who deposed that Ex.PW10/A is in his handwriting. On 3.6.2004, he attended CBI office along with Mohd. Sharif. During his cross examination by Ld. Defence counsel, this witness stated that he scribed complaint twice, once in the morning and another at the time of his second visit. He categorically stated that complaint Ex.PW10/A was scribed by him at the time of his second visit. He did not remember whether name of Virender Chauhan was mentioned in the complaint scribed by him in the morning.
26 PW14 Akram Khan has been examined by the prosecution to prove the genuineness of the complaint Ex.PW10/A, but his testimony also raises doubt about the genuineness of the complaint. Though, he has stated that Ex.PW10/A is in his AC No.05/2006 CBI Vs. Virender Singh Chauhan Page 19 of 54 handwriting but suspicion emerges from the fact that he scribed complaint twice, once in the morning and another at the time of his second visit. It has not been clarified by prosecution as to what were the complaint which were scribed by the scriber(PW14 Akram Khan) twice in CBI office. If the witness of the prosecution(PW14) is to be believed, then the prosecution was duty bound to place on record both the complaint which could have ruled out any manipulation of complaint by the CBI. If Akram Khan(PW14) is believed to be the scriber of the complaint Ex.PW10/A against accused, then he was supposed to remember the name of accused, but he has stated that he did not remember whether he mentioned the name of accused in his complaint made in the morning. Therefore, a doubt arises to the effect that the complaint made in the morning before laying trap against accused was containing his name or not. Thus, filing of complaint Ex.PW10/A by the complainant (PW10) cannot be taken as a proof of demand of illegal gratification by the accused. 27 In similar circumstances, our own Hon'ble High Court in Roshan Lal's (case) has held that mere filing of a complaint is not sufficient to held the accused guilty. It was observed that the contents of complaint are required to be corroborated. In the present AC No.05/2006 CBI Vs. Virender Singh Chauhan Page 20 of 54 case, there is no evidence on record that accused raised initial demand of bribe from the complainant. The contents of Ex.PW10/A have not been corroborated by any evidence.
28 There is no other evidence with regard to making of initial demand of bribe by accused on 1.6.2004. The only evidence against accused with regard to initial demand of bribe is complaint Ex.PW10/A only, the contents of which have not been corroborated by the complainant (PW10) and not even by its scriber Akram Khan (PW14). The ratio of judgment of Panalal's case (supra) is squarely applicable to the facts of the present case as the complaint Ex.PW10/A has not been corroborated by any other evidence. Even the complainant has not identified the accused to be the person with whom he had a talk on 1.6.2004. It is also not the case of the prosecution that conversation between accused and complainant regarding initial demand of bribe was recorded. There is no other evidence with regard to initial demand of bribe by accused and as per Ram Chander's case (supra) and Banarsi's case (supra), demand of bribe before trap is one of the essential ingredients of trap case. Consequently, the prosecution has failed to establish that there was any initial demand of bribe by accused from complainant on 1.6.2004. AC No.05/2006 CBI Vs. Virender Singh Chauhan Page 21 of 54 Demand at crucial stage 29 Case of the prosecution is that a trap was laid on 3.6.2004 during which accused demanded bribe of Rs. 5,000/ from the complainant in his room at PS Kalyan Puri. It is also case of the prosecution that shadow witness PW12 Gajender Pal Sharma was directed to remain close to the complainant to overhear the conversation between accused and the complainant and to watch the transaction of money. It is also case of the prosecution that the demand of bribe by accused in his room was also recorded, transcription of which has been proved as Ex.PW11/E. 30 Complainant in his testimony before the Court has stated that on 3.6.2004 in CBI office, independent witness Atlesh Kumar Sharma and Gajender Pal Sharma joined the CBI team. After completing formalities in CBI office, he was dropped at PS Kalyan Puri at about 1.40 p.m. He entered PS Kalyan Puri and he was instructed to switch on the recording machine. He entered alone in PS Kalyan Puri and asked police man where the SHO was. The moment SHO came, he asked him " AA GAYA". On the asking of SHO, he went near the stairs. SHO asked " Laya Hai" to which he AC No.05/2006 CBI Vs. Virender Singh Chauhan Page 22 of 54 replied " Haan". SHO said " De". He told SHO " Gin Lo Panch Hazaar Hain Pure". SHO asked " Tune Nahin Gine" to which he said " Maine To Gin Liye". Then SHO said " Jaa". Then he gave signal to the CBI and CBI team caught hold of SHO.
31 The complainant has not identified accused as the person with whom he talked in PS or as the person who demanded or accepted the bribe from him in the PS. During cross examination by Ld. PP of CBI, complainant(PW10) has categorically stated that at that time there were two SHOs. He denied that it was accused who demanded and accepted bribe from him. The cassette containing conversation was played in the Court and the complainant identified his voice as well as voice of SHO, but he has not stated anything against the accused that said cassette contains voice of accused. He identified the voice of SHO but he has not clarified whether the said voice was of accused or not.
32 In the absence of identification of voice of accused by complainant in the cassette allegedly containing conversation of the spot, I am of the considered opinion that prosecution has failed to establish the demand of bribe by accused at the spot. AC No.05/2006 CBI Vs. Virender Singh Chauhan Page 23 of 54 33 I have gone through the ratio of judgment in case of T.Subramanian vs. State of T.N.(2006)1 SCC 401 in which it was held that in the absence of proof of demand and acceptance of money as illegal gratification, mere proof of receipt of money by accused is not sufficient to establish his guilt. In case of Bhagwan Singh vs. State of NCT of Delhi 2010(4) LRC 73(Delhi), it was further observed that when the complainant has not categorically stated that accused demanded bribe from him, story of demand by illegal gratification by accused not found to be substantiated. 34 Ratio of above judgments is applicable to the facts of the present inasmuch as the complainant has not identified the accused who demanded bribe from him at the spot. The shadow witness has also not stated anything against the accused. He categorically stated that he had not seen any police officials demanding money from the complainant. There is no evidence on record that accused demand illegal gratification from the complainant.
35 It is important to note that in the chargesheet, it is mentioned by the prosecution that after laying trap, complainant disclosed to the trap laying officer that accused demanded the money AC No.05/2006 CBI Vs. Virender Singh Chauhan Page 24 of 54 by gesture. If this version of the prosecution as enumerated in the chargesheet is to be believed that the accused demanded money by gesture, then it could not have been the case of the prosecution that the recorded conversation contains the demand of bribe by accused. The prosecution has taken two stands at same time. On the one hand, case of the prosecution is that the accused demand bribe from the complainant by saying words, but on the other hand, it is alleged that the accused demanded bribe by gesture. The prosecution cannot be allowed to blow hot and cold at same time.
36 It is further pertinent to mention that in the charge sheet as well as in recovery memo Ex.PW10/E, it is mentioned by the prosecution that the cassette played at the spot confirmed the demand of bribe by accused. The words used by the accused at the spot have been reproduced in the chargesheet as well as in recovery memo Ex.PW10/E, which are as under : Chauhan : Kitne Hain Sharif : Theekh Hain Sir, Gin Lo Sir Chauhan : Kitne Sharif : Nahin Woh Kamti Badti Ka Mamla Hai.
AC No.05/2006 CBI Vs. Virender Singh Chauhan Page 25 of 54 37 It is pertinent to mention that when the cassette containing spot conversation was played in the Court, the exact wording has not come out. The prosecution has also proved the transcription of the said recorded conversation as Ex.PW11/E. In the transcription, the wordings allegedly spoken by accused as mentioned in the chargesheet and recovery memo Ex.PW10/E are not there. The complainant in his testimony was put the recorded conversation in which he stated that that there were talks for Rs. 5,000/ between him and the SHO. Had it been so, then the same must have been reflected in the transcription Ex.PW11/E. But perusal of entire transcription shows that there is no such talk in the same from which it could be inferred that there was demand of any money by the SHO/ accused. It is important to note here that the complainant switched on the digital recorder before entering the PS and the same was switched off after the apprehension of accused. Had it been so, the wordings of challenging the accused must have been recorded there, but the transcription nowhere shows any such wordings which also create doubt with regard to genuineness of recording. The prosecution has proved the voice Expert report as Ex.PW1/A. But in the absence of identification of voice of accused by complainant and also in the AC No.05/2006 CBI Vs. Virender Singh Chauhan Page 26 of 54 absence of any demand in transcription Ex.PW11/E, I am of the considered opinion that the report Ex.PW1/A is of no help to the prosecution.
38 It is the case of the prosecution that shadow witness Gajender Pal Sharma(PW12) was deputed with complainant to overhear the conversation and to watch the transaction of bribe at the spot. Gajender Pal Sharma(PW12) in his testimony has deposed that in the PS, complainant went with SHO inside his room. He also went after them but could not enter the room as the room was closed. After two minutes, SHO came outside and complainant remained inside. This witness has not stated anything against the accused that he heard the conversation between accused and the complainant that accused demanded bribe from him or that he accepted the bribe. He has not even identified the accused as the person with whom complainant met in the PS on the day of trap. The Ld. PP of CBI during testimony of this witness, pointed towards accused and after seeing him, witness stated that he might be the same person. Meaning thereby, witness was not sure whether the accused was the same person with whom complainant talked on the day of trap. The identity of accused has also not been established from the testimony of this independent AC No.05/2006 CBI Vs. Virender Singh Chauhan Page 27 of 54 witness (PW12). Even the recorded conversation of the spot contained in cassette Ex.P30 was not played before this witness to establish the identity of the accused.
39 During cross examination by ld. Defence counsel, this alleged shadow witness(PW12) completely demolished the case of prosecution. He stated that no proceedings were conducted after reaching PS Kalyan Puri for 1.302.00 hours. He stated that during that period, he and Inspector Pandey went to Canteen at first floor of PS for taking tea, but the complainant had not accompanied them to the Canteen. He further demolished the case of prosecution by saying that he did not talk to complainant in the PS as he was left outside the PS and that he did not see complainant in the building of PS when he came downstairs from canteen with Inspector Pandey. He categorically stated that he was told by Inspector Pandey that " Kaam HO Gaya". He admitted that he had not seen any police official in PS Kalyan Puri demanding and taking money from the complainant. 40 Therefore, testimony of PW12 Gajender Pal Sharma, alleged shadow witness, is of no help to the prosecution as he has not identified accused as the person who demanded and accepted money from the complainant. Apart from complainant (PW10), this witness AC No.05/2006 CBI Vs. Virender Singh Chauhan Page 28 of 54 (PW12) also failed to identify accused in the Court. In similar circumstances in case of R.V.Subba Rao vs. State 2005(4) RCR(Crl) 716, conviction of accused was set aside while observing that there was no evidence against accused that he did any official favour and that the witness failed to identify accused in the Court. 41 Witness (PW12) even went to the extent of saying that he was not present at the spot, rather he was having tea in the canteen on other floor of the PS. He has categorically stated that he had not seen any police official of PS Kalyan Puri demanding or accepting money from the complainant.
42 In similar circumstances, Hon'ble Supreme Court in case of Bal Kishan Sayal vs. State of Punjab JT 1987(1) SC 281 has observed that when the conversation took place at the spot has not been duly proved, the demand of bribe can not be said to be made. In another judgment titled State of Rajasthan vs. Mohan Lal 2009(2) RCR(Crl) 812, acquittal of accused was upheld on the ground that independent witness did not hear any conversation between the complainant and the accused and also did not see any transaction apart from other grounds. In the present case also, neither the complainant nor the shadow witness(PW12) supported the case of the AC No.05/2006 CBI Vs. Virender Singh Chauhan Page 29 of 54 prosecution. Moreso, independent witness has specifically stated that he did not hear the conversation between accused and complainant nor did he see the transaction. Even the recorded conversation was not put to the complainant.
43 The prosecution has failed to establish the demand of bribe by accused. I have gone through the ratio of judgment in case titled State of H.P. Vs. Sukhdev Singh Rana, 2005 Cri.L.J. 1136 (HP) wherein it was observed that in the absence of demand of bribe, conviction of the accused was improper. Therefore, prosecution has miserably failed to prove the demand of bribe by accused at the initial stage as well as at the spot. Consequently, the prosecution has also failed to establish the demand of bribe by accused from the complainant at the spot.
Acceptance and Recovery of bribe 44 Case of the prosecution is also that after pretrap proceedings, a trap was laid in the office of the accused during which he demanded and accepted bribe from the complainant. It is submitted by the Ld. PP that when the accused was about to be apprehended, he threw money on the ground which was recovered. It is also case of the prosecution that hand washes as well as pant wash AC No.05/2006 CBI Vs. Virender Singh Chauhan Page 30 of 54 of accused was taken in the solution of sodium carbonate which turned into pink. Ld. PP has submitted that as per report of wash Expert, the acceptance of bribe by accused has been established. He has further submitted that throwing of bribe money by accused on the ground and its recovery therefrom has duly been established from the testimony of witnesses.
45 Complainant(PW10) during his examination in chief has stated that on the day of incident, he entered alone in PS Kalyan Puri. He asked the police man as to where the SHO was as he was not present. When SHO came, he handed over tainted GC notes to him and then gave signal to the CBI. C.K. Sharma of CBI caught hold SHO but SHO pushed him and went upstairs. C.K. Sharma and S.S. Bhullar went upstairs and brought SHO down. SHO pushed both of them and threw away the money and ran away. By that time, SHO had already crossed the wall. Complainant told C.K. Sharma after his returned back that money was lying there which he handed over to SHO. C.K.Sharma took money and went in adjoining room and came out from that room after four hours. Thereafter, complainant along with CBI people went in their vehicle and his signatures were taken in CBI office.
AC No.05/2006 CBI Vs. Virender Singh Chauhan Page 31 of 54 46 During his entire examination in chief, complainant(PW10) has not identified accused as the person with whom he transacted in Police Station. He stuck to his stand that in the PS, he had talk and transacted with SHO but no dealing with accused had taken place by him. He has not stated anything that either hand wash or pant wash of accused was taken in his presence. He has not stated anything against accused that he was the person who accepted bribe from him or that on his apprehension, accused threw away money on the ground.
47 Complainant was declared hostile and was cross examined by Ld. PP for the CBI. During cross examination by Ld. PP, complainant has stated that initially witness Gajender Pal Sharma was also sent with him within the boundary of PS but later on he did not pay attention whether Gajender Pal Sharma remained inside or not. He categorically stated that right hand, left hand and inner lining of left side pant pocket of SHO were not washed in his presence. He denied the specific suggestion that accused present in the Court was the same SHO against whom he had lodged complaint and he was apprehended by the CBI at the spot. He also denied that AC No.05/2006 CBI Vs. Virender Singh Chauhan Page 32 of 54 accused demanded bribe from him, accepted bribe from him and then threw the same. He was confronted with the conversation allegedly recorded at the spot but even after hearing the voices in the cassette, complainant stuck to his stand that it was the SHO with whom he talked in Police Station. He has not identified the voice of the accused in the said conversation.
48 So far as preparation of documents by CBI is concerned, complainant has specifically stated that whenever he used to be called in CBI office, CBI used to obtain his signatures on some documents. During his cross examination by ld. Defence counsel, he stated that he was illiterate and could not identify the documents which were shown to him in this case. He signed documents on the request of CBI officials and the same were put to him after 2 or 3 months of the day when he had gone to PS Kalyan Puri. The cassette marked Q1 Ex.P30 was again played and after going through its contents, complainant has stated that except one sentence of SHO "
Akram Kaun Hai", he could not comprehend rest of the contents of the cassette.
49 From the testimony of complainant(PW10), there is nothing against the accused that he accepted bribe from him or its AC No.05/2006 CBI Vs. Virender Singh Chauhan Page 33 of 54 recovery was effected. First of all, complainant has not identified accused as the person who accepted bribe from him. He has also not stated anything against the accused that on his apprehension, he threw money on the ground. He has also not stated that the washes of hand and pant of accused were taken in his presence. During cross examination by Ld. PP, he clarified that he had not dealt with accused in the Police Station and the SHO who accepted bribe from him was not the accused. He has categorically stated that hand washes and pant wash of accused were not taken in his presence whereas it is the case of the prosecution that same was done in the presence of complainant. As regards preparation of documents by CBI at the spot, the complainant has also demolished the case of the prosecution by saying that first of all, he is illiterate and secondly all the documents were prepared 2 or 3 months after the day of incident and that too in the CBI office. He further demolished the case of prosecution by saying that he just put his signatures on the documents on the request of CBI officials. From this testimony of complainant, a doubt is cast upon the story of prosecution that any document was prepared at the spot in the manner as alleged. It is very strange to note that alleged recovered bribe money in the form of GC notes were AC No.05/2006 CBI Vs. Virender Singh Chauhan Page 34 of 54 not put to the complainant to get them identified. 50 It is also case of the CBI that shadow witness (PW12) remained with the complainant and had watched the transaction of bribe between complainant and accused. The shadow witness Gajender Pal Sharma (PW12) has also not supported the case of the prosecution. He has stated that after entering PS, he along with Inspector Pandey of CBI went to Canteen. When they returned, SHO had just come and complainant went with SHO inside his room. After two minutes, SHO came outside whereas complainant remained inside. He had some talks with SHO and thereafter Inspector Pandey of CBI told him that the work was over. He clarified that work assigned was handing over of the money. This witness came out of the Police Station and gave preappointed signal. The team rushed inside and by that time Inspector Pandey grappled with SHO. He saw GC notes lying in the verandah. He along with Atlesh Kumar Sharma (PW11) stood at the spot near GC notes. SHO was taken to the room of ACP. Inspector Pandey had directed him and Atlesh Kumar Sharma to pick up and count GC notes. After picking and counting, they found that GC notes were same which they had counted in CBI office. Thereafter, SHO was taken to his room where his hands as AC No.05/2006 CBI Vs. Virender Singh Chauhan Page 35 of 54 well as pant pocket were washed and on doing so, the colour of water turned pink.
51 He was declared hostile and was cross examined by Ld. PP for the CBI. In his cross examination by Ld. PP, this witness has also not identified the accused. In answer to a specific question, witness has not stated with certainty that accused present in the court was the same person or not. So, from the testimony of this witness also, the identity of the accused remained in doubt. Witness did not remember whether it was informed by the complainant that accused threw money in the verandah. Though he admitted the preparation of recovery memo Ex.PW10/E, but he clarified that his signatures on the same were obtained at CBI office. The recovered GC notes were put to this witness and after going through handing over memo Ex.PW10/D, he identified the same as Ex.P5 to Ex.P25. He further stated that he signed all the documents as asked by CBI officials but he had not gone into the correctness or falsity of the documents. 52 During his cross examination by Ld. Defence counsel, he stated that after their reaching at PS Kalyan Puri, during 1.302.00 hours, he along with Inspector Pandey went to Canteen and complainant had not accompanied them there. He stated that he was AC No.05/2006 CBI Vs. Virender Singh Chauhan Page 36 of 54 told by Inspector Pandey that Kaam Ho Gaya. He admitted that he had not seen any police official in PS Kalyan Puri demanding and taking money from the complainant in his presence. He further stated that he had not seen anybody throwing money. He categorically stated that he was told by Inspector Pandey about lying of money in an open area near staircase. He further stated that he was informed by Inspector Pandey about lying of money in a verandah. He admitted that hand wash and pant wash of any police official were not taken in his presence. He further stated that no pant of any police official was taken into possession by CBI in his presence. He admitted that his signature was obtained on recovery memo Ex.PW10/E in token of handing over him a copy of the said memo at CBI office. He further admitted that he had not seen anybody demanding, accepting money from the complainant or throwing any money anywhere. 53 After going through the testimony of shadow witness Gajender Pal Sharma (PW12), it came in evidence that he was not accompanying the complainant (PW10) at the time of alleged transaction of bribe money. PW12 has categorically stated that no person demanded, accepted or threw money in his presence. He clarified that he was informed by Inspector Pandey about the lying of AC No.05/2006 CBI Vs. Virender Singh Chauhan Page 37 of 54 money in verandah. Even the witness has not identified the accused in the Court. There is nothing in the testimony of this witness from which it could be said that it was the accused who accepted bribe money from the complainant (PW10) and then threw it on the ground. So far as identification of recovered GC notes is concerned, the same cannot be said to be properly identified by this witness (PW12) as he identified the said GC notes Ex.P5 to Ex.P25 only after going through the handing over memo Ex.PW10/D. Witness has not identified the recovered GC notes of his own, rather identified the same after going through the contents of handing over memo Ex.PW10/D, which cannot be said to be identification.
54 Another independent witness examined by the prosecution is Sh. Atlesh Kumar Sharma (PW11) who deposed that he along with team members remained outsider the police station. On receipt of indicator, all of them rushed inside the police station. CBI officials apprehended one person and took him to ACP office. After sometime, notices were located lying near Verandah. Notes lying in the verandah were recovered and their numbers tallied with numbers mentioned in list Ex.PW10/D. Accused was taken to SHO where hand washes of SHO and complainant were taken. Hand wash and AC No.05/2006 CBI Vs. Virender Singh Chauhan Page 38 of 54 left side pant pocket wash of SHO turned pink.
55 During crossexamination by Ld. defence counsel, witness (PW11) has stated that he had been participating as a witness in 10 CBI cases. He had signed the documents whenever CBI officials called in their office and put those documents before him for signing. He admitted that CBI people were saying that money had not been recovered. He further stated that he came to know about after 30 minutes of entering police station that notes were lying in the verandah. He further stated that some of the CBI officials told him that notes were lying in verandah.
56 As per testimony of this witness (PW11) itself, he is not the witness of acceptance and recovery of bribe from the person of accused. He has just stated that when he entered the police station he was told by CBI official that money was lying in the verandah from where it was recovered. It is also not the case of CBI that the bribe money was recovered from the person of accused. There is nothing in the testimony of this witness (PW11) to connect the accused with the acceptance and recovery of bribe money. 57 It is also pertinent to mention that in the transcription Ex.PW11/E allegedly recorded at the spot also there is nothing whcih AC No.05/2006 CBI Vs. Virender Singh Chauhan Page 39 of 54 could suggest that accused accepted bribe money and it was recovered from him. Transcription Ex.PW11/E is of no help to the prosecution to establish that bribe was accepted by accused from the complainant.
58 It is the case of prosecution itself that shadow witness (PW12) had not witnessed the transaction of bribe money. The shadow witness (PW12) himself has stated that he had gone to the canteen when complainant went inside the police station and when they returned back, he saw grappling of CBI official with SHO. Even he has not identified the accused in the Court. The other independent witness (PW11) remained with the trap party members outside the office of accused, so, his testimony is also of no consequence to rely upon the case of prosecution.
59 From totality of the evidence as discussed above, I am of the considered opinion that the statements of complainant as well as of independent witnesses are of no help to the prosecution. First of all, the complainant (PW10) as well as shadow witness (PW12) have not identified the accused and secondly they including another independent witness (PW11) have not deposed anything against the accused that he was the same person who accepted bribe AC No.05/2006 CBI Vs. Virender Singh Chauhan Page 40 of 54 from the complainant (PW10) and then threw the money on the ground. From their evidence, prosecution has failed to prove beyond reasonable doubt that accused accepted the bribe from the complainant.
60 Keeping in view the above discussion, I am of the considered opinion that prosecution has miserably failed to prove that accused accepted the bribe money from the complainant or threw the same on the ground when he was challenged/apprehended by CBI officials.
Washes 61 Case of the prosecution is that the hand washes and pant pocket wash of accused were taken in colourless solution and on doing so, it turned into pink colour, which establishes the case of prosecution that he accepted tainted GC notes from the complainant. 62 There are serious discrepancies in the statements of witnesses with regard to taking of washes. It is not established from the testimony of witnesses as to where the said washes were taken. The main dent to the case of prosecution is the testimony of complainant (PW10). Firstly, he has not identified the accused as the person who demanded and accepted bribe from him and secondly, AC No.05/2006 CBI Vs. Virender Singh Chauhan Page 41 of 54 complainant (PW10) has not stated anything during his entire testimony whether hand or pant wash of the accused were taken or not. Even during crossexamination by Ld. PP for CBI, no question was put to the complainant to the effect that the hand washes and pant pocket wash of accused were taken at the spot.
63 As per chargesheet hand washes of accused were taken in the office of ACP whereas his pant pocket wash was taken in his room. The independent witness Atlesh Kumar Sharma (PW11) has controverted the case of prosecution. He has deposed that hand washes of accused were taken in his room. Another independent witness (PW12) has also stated as such. The Trap Laying Officer, Inspector A.K. Pandey (PW13) has controverted the statements of both the independent witnesses. He (PW13) has stated that hand washes of accused were taken in the office of ACP. He himself contradicted his statement during crossexamination by saying that the proceedings of hand wash was conducted in the verandah outside the room of ACP.
64 The then ACP Sh. R.K. Joshi has been examined by the prosecution as PW3. He has deposed that on 3.6.2004, Virender Singh was brought to his office room by CBI people. During cross AC No.05/2006 CBI Vs. Virender Singh Chauhan Page 42 of 54 examination he stated that when he saw the accused in the custody of those persons, he was physically apprehended by them from their fist region. They had taken hand wash of accused in his presence. 65 It is very strange to note that it is the consistent case of the CBI that ACP was available in the office and he left the office immediately as he had to attend some meeting and no proceeding took place in his presence. But from the testimony of ACP Sh. R.K. Joshi (PW3), the hand washes of accused were taken in his presence, but he could not tell whether the colour of solution had changed or not. This witness has also stated that accused was being caught hold from his fist region, which creates doubt on the prosecution case. If this testimony of prosecution witness (PW3) is to be believed, then the possibility of plantation cannot be ruled out. It has also not been explained by the prosecution as to why ACP Sh. R.K. Joshi has not been made witness to the proceedings conducted in his presence. 66 Consequently, in view of the above discussion, I am of the considered opinion that the prosecution has failed to establish convincingly as to where the hand washes of accused were taken, either in the room of ACP or outside the room of ACP or in the room of accused himself, as there are so many contradictory versions of AC No.05/2006 CBI Vs. Virender Singh Chauhan Page 43 of 54 witnesses on this point. As per testimony of PW3 Sh. R.K. Joshi, he saw the accused being caught hold with his fist region, so the plantation of powder cannot be ruled. In view of this position of the matter, the report of CFSL report regarding washes Ex.PW2/A is of no help to the prosecution.
Sanction 67 To prove the sanction, the prosecution has examined Sh. B.S. Brar (PW5), the then Jt. Commissioner of Police, New Delhi Range. He deposed that at the relevant time, he was working as such. He was competent to appoint and dismiss an employee of the rank of Inspector in Delhi Police. Vide order Ex.PW5/A he accorded sanction for prosecution of accused Virender Singh Chauhan who was working as SHO, Police Station Kalyan Puri. He further stated that sanction was accorded by him after scrutinizing the material and after applying his mind. During crossexamination, witness denied that sanction order was passed mechanically without application of mind. He also denied that he merely endorsed the request made by CBI. 68 CBI has produced the sanctioning authority Sh. B.S. Brar (PW5) who duly proved the sanction order of the accused as Ex.PW5/A for his prosecution. The perusal of sanction order AC No.05/2006 CBI Vs. Virender Singh Chauhan Page 44 of 54 Ex.PW5/A shows that the sanctioning authority after carefully examining the material such as complaint, FIR, statements of witnesses, recovery cum seizure memos, other memos, CFSL report etc. collected during investigation and after applying his mind, granted the sanction for the prosecution of the accused. 69 Consequently, in view of the above mentioned discussion, it is held that the sanctioning authority PW5 Sh. B.S. Brar was competent to accord the sanction for the prosecution of the accused. It has been demonstrated from his testimony and sanction order that material was produced before him which was made basis for passing sanction order. Though, accused has challenged non application of mind by sanctioning Authority to pass sanction order but has not produced any material or evidence to show that the same was passed mechanically. The sanctioning authority while entering into the witness box duly proved the sanction order. Sanction order also reveals that material which is part of judicial record was placed before him and was gone into by him before according sanction. 70 Consequently, I am of the considered opinion sanction accorded for prosecution of accused persons is proper, valid and has been passed after due application of mind. AC No.05/2006 CBI Vs. Virender Singh Chauhan Page 45 of 54 Defence: 71 Defence taken by the accused is that on 3.6.2004, he left the police station at 9.30 a.m. for patrolling in the area along with driver Ct. Arvind and Operator Ct. Vinod. While boarding his vehicle, he received a call from DCP to remain present in the PS in connection with Gang Rape Case. He came back to PS and directed Duty Officer to make entry. He discussed the matter of gang rape with IO and remained in his chamber till 1.45/1.50 p.m. When he was waiting in front of reception for driver and operator, 4/5 persons in civil dress came and grappled with him. In the meantime, another group of 1012 persons came and grappled with him. Police officials tried to intervene but Inspector Pandey threatened them with suspension. Further defence taken is that accused was overpowered by 6/7 persons and was taken to the room of ACP and then in the evening, he was taken to CBI office. No document was prepared in the PS. Washes as well as tainted money were planted subsequently. At the time of grappling and before that one Anshu Aggarwal was also present and was waiting for him outside his chamber. 72 To probabilise his defence, accused examined HC Dharemender(DW1) who brought the original FIR No.291/04 AC No.05/2006 CBI Vs. Virender Singh Chauhan Page 46 of 54 registered on 2.6.2004 Ex.DW1/A in which one Anshu Aggarwal along with Shyam Lal are accused. He also proved the copy of DD entries in DD register A and B dated 3.6.2004 as Ex.DW1/B and Ex.DW1/C. 73 DW3 HC Arvind Kumar has deposed that he was driver with Virender Singh Chauhan on 3.6.2004. At about 9.30 a.m. on that day, he along with Inspector Virender Chauhan and operator Vinod left PS but in the meanwhile Inspector Virender Chauhan received phone call and they immediately returned to PS. At about 2.00 p.m., he received a call from Duty Officer that Inspector Virender Singh Chauhan had to leave PS. When he reached near reception, he saw quarrel between Inspector Virender Singh Chauhan and 1012 persons. After about 30 minutes, one person came who started arguing with Duty Officer. When this witness inquired about the matter, said persons asked him to remain shut by disclosing him as CBI officer. Almost similar type of statement has been made by DW4 HC Surender Pal, Duty Officer.
74 DW2 Anshu Aggarwal has stated that on 2.6.2004, a case was registered against him vide FIR No. 291/04 and he was asked by Inspector Chauhan to meet him next day in the PS. Next AC No.05/2006 CBI Vs. Virender Singh Chauhan Page 47 of 54 day, he went to PS during noon time. The person at reception instructed him to wait and he waited for Inspector Chauhan for 1015 minutes and when he came out, he talked to Mr. Chauhan. When he was talking to inspector Chauhan, 56 persons came and started grappling with Inspector Chauhan.
75 Perusal of copy of DD No.28 Ex.DW1/B shows that accused left the PS along with his driver and operator which reflects truthfulness of the defence which has been duly corroborated by his driver HC Arvind Kumar(DW3). FIR No. 291/2004 dated 2.6.2004 Ex.DW1/A also shows that FIR with regard to dousing of fire was registered and in connection thereof DW2 Anshu Aggarwal was present in PS on the day of incident. DW2 as well as DW3 HC Arvind Kumar and DW4 HC Surender Pal have stated in one voice that Inspector Virender Singh Chauhan caught hold by some persons in civil dress whose identity was later on revealed as CBI officials. Ld. PP for the CBI has cross examined the defence witnesses but has not disputed their presence at the spot. When their presence at the spot has not been disputed, their testimony can not be discarded merely on the ground that they have come forward to depose in favour of accused. It is a settled law that defence evidence is entitled AC No.05/2006 CBI Vs. Virender Singh Chauhan Page 48 of 54 to equal weight and appreciation as that of prosecution evidence. 76 In support of above proposition of law, Ld. Counsel for the accused has relied upon authorities reported as Anil sharma vs. State 2004(3) RCR(Crl.) 774 SC and State vs. Ram Singh 2002(1) JCC 385 SC to press his contention that equal treatment like prosecution witness is to be given to defence witnesses. In these authorities, it was observed that evidence tendered by defence witnesses can not always be termed to be a tainted one and defence witnesses are entitled to equal treatment and equal respect as that of the prosecution. It was further observed that issue of credibility and trustworthiness ought also to be attributed to the defence witnesses at par with that of the prosecution.
77 I have also gone through ratio of judgment of our own Hon'ble High Court in case of Sunil Kumar Sharma vs. State(CBI) 2007(3) Crimes 160 in which it was observed that the Evidence Act does not contemplate that accused should prove his case with the same strictness and rigour as the prosecution is required to prove a criminal charge. Similar observations have been made by our Hon'ble High Court in recent judgment reported as Ashok Narang vs. State 2012(1) JCC 482.
AC No.05/2006 CBI Vs. Virender Singh Chauhan Page 49 of 54 78 In view of above position of law and evidence adduced by accused, I find the defence of the accused plausible that trap as alleged by the prosecution does not stand proved beyond reasonable doubt. The testimony of defence witnesses can not be discarded in toto as observed by their lordships of Hon'ble Higher Courts.
Conclusion 79 The prosecution has miserably failed to prove that accused raised the initial demand of bribe from the complainant as the complainant himself has controverted the case of the prosecution. In his complaint Ex.PW10/A, he has mentioned that accused demanded bribe of Rs.10,000/ and agreed to take first installment of Rs.5,000/. But during his examination in chief, complainant (PW10) has not identified the accused who demanded bribe from him. He completely exonerated the accused from the allegations levelled against him. During his testimony in the court, complainant changed his version by saying that initially he paid Rs.5,000/ to one SHO. 80 The making of complaint Ex.PW10/A is itself in doubt. The complainant has stated that complaint was written twice, once in the morning and then in the evening time. The scriber of the AC No.05/2006 CBI Vs. Virender Singh Chauhan Page 50 of 54 complaint Ex.PW10/A has been examined as PW14 Akram Khan who after going through the complaint Ex.PW10/A stated that the said complaint was scribed by him at the time of his second visit and that he scribed complaint twice, once in the morning and another at the time of his second visit. He could not even tell whether he mentioned the name of accused in the complaint made by him in the morning. So, a doubt has erupted with regard to making of complaint and the fact remains that the allegations contained in the complaint Ex.PW10/A have not been corroborated by any evidence. There is no evidence on record that accused raised the demand of bribe at the initial stage.
81 Prosecution has also failed to establish the demand made by accused at the time of trap in his office. Case of the prosecution was that accused demanded bribe in his room from the complainant in the presence of shadow witness (PW12). The complainant (PW10) as well as shadow witness Gajender Pal Sharma (PW12) have not supported the case of prosecution. They have not identified the accused in the Court. Shadow witness (PW12) has even stated that he was not present at the spot at that time, rather he was in canteen. He has categorically stated that no police official demanded AC No.05/2006 CBI Vs. Virender Singh Chauhan Page 51 of 54 money from the complainant in his presence. Even the complainant (PW10) has demolished the case of prosecution by saying that it was not the accused who demanded bribe in PS Kalyan Puri. The prosecution has relied upon the transcription Ex.PW11/E from which it could not get any help as there is not even a single word from which it could be inferred that it was accused who had demanded or asked for money to be paid to him. The alleged shadow witness (PW12) and complainant (PW10) have not supported the case of the prosecution. They have not stated anything that accused demanded bribe from the complainant in his room.
82 It is the case of prosecution itself that alleged bribe money was not recovered from the possession of accused rather he threw the same on the ground when he was challenged/apprehended. It is the case of the prosecution itself that at the time of alleged transaction of bribe money, shadow witness Gajender Pal Sharma (PW12) was outside the room of accused, therefore, he had nothing to say about the transaction of bribe money. The complainant (PW10) has also demolished the case of prosecution. He has stated that accused was not the person with whom he transacted. He stated that accused never accepted money from him in his office and he had not AC No.05/2006 CBI Vs. Virender Singh Chauhan Page 52 of 54 seen him throwing money on the ground. The shadow witness (PW12) also not supported the case of prosecution. He has also stated that when he returned back from canteen, he saw SHO grappling with CBI officials. He has categorically stated that he had not seen any police official accepting money or throwing money on the ground. Even the transcription of the spot Ex.PW11/E does not support the case of prosecution. There is no mention of any money in the said transcription. The prosecution has failed to establish the acceptance of bribe money by accused from the complainant and also the fact that when accused was challenged, he threw money on the ground. There is no evidence on the record to connect the accused with such acts.
83 The prosecution has miserably failed to prove the necessary ingredients of trap case viz. demand of bribe at previous stage, demand of bribe at the time of trap, acceptance of bribe money and its recovery from the accused as laid down by Hon'ble Delhi High Court in case titled Ram Chander Versus State (supra). 84 Similarly, the Hon'ble Apex Court in case of Jagat Singh vs. Union of India (2007) RDRJ 2985 has observed that demand and acceptance of money for doing a favour in discharge of AC No.05/2006 CBI Vs. Virender Singh Chauhan Page 53 of 54 official duty is sine qua non for conviction of accused, but in the present case the prosecution has miserably failed to establish the demand and acceptance of bribe money by accused.
85 Consequently, accused Virender Singh Chauhan is hereby acquitted of the charges framed against him. He is directed to comply with the provisions of Section 437A Cr.P.C.
Announced in the open Court ( P.S. TEJI )
Dated: 23.03.2012 District Judge & ASJ, I/C (East)
Special Judge (CBI)
Karkardooma Courts : Delhi
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