Delhi District Court
State vs . on 3 February, 2023
1
In the Court of Dig Vinay Singh, Special Judge (PC Act) ACB-02
Rouse Avenue Courts, Delhi.
In re:
CNR No. DLCT110019112019
CC No. 345/2019
FIR No. 249/14
PS Mayur Vihar
U/s 7 of POC Act, 1988 &
Sec. 506 Part-2 of IPC
State
Vs.
Bhanu Kanwariya
S/o Sh. Nand Kishore Kanwariya
R/o 126, GH-1, Archana Apartment,
Paschim Vihar, Delhi-63.
Date of institution : 28.11.2019
Date of arguments : 21.01.2023
Date of judgment : 03.02.2023
JUDGMENT
1. Above named sole accused faced trial in this case for offences U/s 7 of POC Act, 1988 & Sec. 506 Part-II of IPC. At the relevant time, he was posted as Sub Inspector of Delhi Police in Police Station Mayur Vihar. He was investigating FIR no. 192 of 2014, U/s 279/394 of IPC, which was lodged on 30.03.2014. That FIR was registered on the complaint of one Sachin Goel against Yogesh Upadhyay, the complainant of the present case.
1.1. The present case was registered on 28.04.2014, on a written complaint of Yogesh Upadhyay, in which it is alleged that the accused being investigating officer of the earlier FIR against the complainant, initially demanded a sum of Rs. 50,000/- from brother of complainant, namely Rajiv Upadhyay. In the complaint Ex.PW8/A, what is alleged is that on the next date of registration of earlier FIR CNR No. DLCT110019112019; CC No. 345/2019; FIR No. 249/14; PS Mayur Vihar; State Vs. Bhanu Kanwariya; Dated 03.02.2023;
Page 1 of 34 2no. 192, which was registered on 29.03.2014, when Rajiv contacted the accused, the accused allegedly claimed that he did not mention name of Yogesh Upadhyay in the FIR and only the vehicle number was mentioned in the FIR and therefore he has option to remove the name of PW8, for which accused demanded Rs. 50,000/- from Rajiv. However as per statement under section 161 Cr. P. C. of Rajiv, the date of first demand was 09.04.2014. It is further alleged in the complaint Ex.PW8/A that thereafter on 12.04.2014 accused again demanded a sum equal to four times the amount earlier demanded but ultimately settled for Rs. 1 Lakh and thus demanded Rs 1 Lakh. The demand on 12.04.2014 was also made from Rajiv Upadhyay, in presence of his two more friends Pawan Khajuriya and Akhil Chaudhary, at Police Station Mayur Vihar. On 12.04.2014, the accused was annoyed since between the date of first demand and 12.04.2014, the complainant of this case had preferred an anticipatory bail application in the earlier FIR, which was dismissed. The accused allegedly stated on 12.04.2014 that when he had informed Rajiv that the name of Yogesh was not mentioned in the FIR, the anticipatory bail application was preferred and, because of filing of anticipatory bail application, name of Yogesh became apparent and therefore demand was also raised. This conversation dated 12.04.2014 was recorded by Rajiv on his mobile phone. It is also alleged in the complaint that Yogesh once again preferred another anticipatory bail application, but after the hearing, the accused threatened father of complainant S. S. Upadhyay outside the Court Room in which the accused stated that he would implicate S. S. Upadhyay and Rajiv in some false case and that the accused would also get both of them killed.
1.2. Prior to the complaint dated 28.04.2014, which is addressed to ACP, Kalyan Puri, one more complaint dated 25.04.2014 was also given by the complainant to DCP, Vigilance, Barakhamba Road, Delhi along with a copy of audio recording and transcript.
1.3. During investigation, the mobile phone in which recording was done was seized CNR No. DLCT110019112019; CC No. 345/2019; FIR No. 249/14; PS Mayur Vihar; State Vs. Bhanu Kanwariya; Dated 03.02.2023;
Page 2 of 34 3and the CD containing the copy of questioned audio recording and transcripts were also seized by the investigating agency. Also, the sample voices of the accused as well as Rajiv, Pawan and Akhil were obtained and were compared with the questioned audio recording from FSL, which were found to be matching.
1.4. Sanction U/s 19 of the POC Act was obtained against the accused for offence U/s 7 of the POC Act and on completion of investigation, charge sheet was filed.
2. Accordingly, charge U/s 7 of the POC Act, 1988 and 506 Part-II of IPC were framed against the accused, to which he pleaded not guilty and claimed trial.
3. In support of its case, prosecution examined total 18 witnesses, out of whom the complainant Yogesh, his brother Rajiv, his father Shanti Swaroop Upadhyay and Pawan Khajuriya were examined as PW8, PW9, PW13 and PW10, respectively. Relevant and admissible parts of their testimonies shall be discussed hereinafter at appropriate stage in order to avoid repetition. The rest of the witnesses are more or less formal in nature.
3.1. PW1 ASI Chander Bhan, the duty officer proved FIR of the present case;
endorsement on rukka and; also the earlier FIR no. 192/2014 as Ex.PW1/B, A & D, respectively.
3.2. PW2 HC Sushil was a witness to obtaining of the sample voices and to the seizure of the audio cassettes containing the voice samples of the accused, Rajiv, Pawan and, Akhil on 01.05.2014 at FSL, Rohini.
3.3. PW3 Inspector Vikas Kumar witnessed the seizure of copy of earlier complaint dated 25.04.2014; the mobile phone of the complaint; one CD containing copy of audio recording and; transcripts, on 29.04.2014, vide seizure memo Ex.PW3/A to C. 3.4. PW4 V. Lakshmi Narsimhan, the Assistant Director, Physics from FSL, Rohini, Delhi, proved his report dated 21.05.2014 Ex.PW4/A. He deposed that in the mobile phone, one audio file by the name of "Bhanu Meeting 12-apr-2014 4 CNR No. DLCT110019112019; CC No. 345/2019; FIR No. 249/14; PS Mayur Vihar; State Vs. Bhanu Kanwariya; Dated 03.02.2023;
Page 3 of 34 4pm.wav" was found and in the CD, one audio file by the name of "Track 01 in cda format" was found. The audio files contained in the mobile phone and the CD did not suggest any form of alteration. He then went on to compare the sample voices of the four persons including the accused and gave his report Ex.PW4/A opining that the sample voices of all the four persons matched with their respective questioned audio recorded portions. It is worth mentioning here that in the cross examination the witness admitted that he compared the sample voices with the data contained in the CD and not with the one contained in the mobile. He also admitted that he physically did not examine the mobile phone and therefore was not in a position to say whether there was any internal storage memory facility available in the phone or it had any slot for any memory card.
3.5. PW5 ASI Rajender Kumar was the malkhana moharrar of PS Mayur Vihar who deposed regarding deposition of the case property in the malkhana as well as about sending it to FSL and about receipt of FSL result and exhibits from the FSL in the malkhana, vide Ex.PW5/A, A1, B, B1, C, C1 & Ex.PW5/D. 3.6. PW6 Anil Kumar from MTNL proved the Customer Application Form of the mobile phone of the accused Ex.PW6/A with the CDR of the mobile phone of the accused for the dates 11 & 12.04.2014 as Ex.PW6/C along with the Cell ID Chart Ex.PW6/D as to location of tower and certificate U/s 65B of Evidence Act as Ex.PW6/E in support of the CDR.
3.7. PW7 Pawan Singh, the nodal officer from Vodafone similarly proved the Customer Application Form of the mobile phone of Akhil Chaudhary as Ex.PW7/B. No CDR of this mobile phone no. 9811810838 could be obtained as the CDRs were sought after more than one year from the requisite period and therefore it could not be supplied by the service provider.
3.8. PW11 HC Rohtash carried the sealed parcels from malkhana of PS Mayur Vihar to the FSL, Rohini, Delhi on 21.05.2014 and deposited them in the FSL as per directions of IO ACP Mohd. Iqbal vide RC Ex.PW5/B. CNR No. DLCT110019112019; CC No. 345/2019; FIR No. 249/14; PS Mayur Vihar; State Vs. Bhanu Kanwariya; Dated 03.02.2023;
Page 4 of 34 53.9. PW12 Surender Kumar, the nodal officer from Bharti Airtel, proved the Customer Application Forms of mobile no. 9910544977 belonging to Rajiv, and that of mobile no. 9810919678 belonging to Pawan, as Ex.PW12/B & 10/A, respectively. No CDR of these two mobile phones could be obtained as the CDRs were sought after for more than one year from the requisite period and therefore it could not be supplied by the service provider.
3.10. PW14 Yogender Pal Singh proved the copy of charge sheet of FIR no. 192/2014 and the relevant orders and FIR of that case as Ex.PW14/A to 14/C & Ex.PW1/D. 3.11. PW15 Pankaj Kumar Singh the Sanctioning Authority proved Sanction U/s 19 of the POC Act against the accused as Ex.PW15/B. 3.12. PW16 ACP K. K. Tyagi was part investigating officer of this case, during the tenure of which, virtually no investigation was done.
3.13. PW17 ACP Iqbal Mohammad was the main IO of this case who deposed that he received investigation of the present case on 28.04.2014 and, on 29.04.2014 he seized the mobile phone of the complainant containing the questioned audio recording vide seizure memo Ex.PW3/B after sealing it in a parcel; he also seized one CD containing copy of the audio recording as well as transcript vide memo Ex.PW3/C and; he seized a copy of the earlier complaint dated 25.04.2014 given by the complainant to the DCP, Vigilance vide seizure memo Ex.PW3/A. On 30.04.2014, he prepared site plan Ex.PW17/A. The IO also deposed that on 01.05.2014 he got recorded the voice samples of the accused as well as the three relevant witnesses Rajiv, Pawan and Akhil at FSL, Rohini and then he seized the audio cassettes containing the voice samples of those four persons vide seizure memo Ex.PW2/A. Subsequently, he got deposited the case property in the FSL and then he was transferred.
3.14. PW18 ACP Vineeta Tyagi further investigated the case and she deposed that during her tenure, she sought the call detail records of the relevant mobile phones CNR No. DLCT110019112019; CC No. 345/2019; FIR No. 249/14; PS Mayur Vihar; State Vs. Bhanu Kanwariya; Dated 03.02.2023;
Page 5 of 34 6of the accused and witnesses, but could not collect the CDR as more than one year had already elapsed. Thereafter, she obtained sanction U/s 19 of the POC Act, the FSL result was also already received and, then filed charge sheet.
4. Upon completion of the prosecution's evidence, all the incriminating evidence was put to the accused in his statement U/s 313 Cr.P.C. The accused denied having entered into any conversation with Rajiv, either physically or telephonically, or with anybody else regarding the FIR no. 192 in which he was the investigating officer and claimed that he did not meet the complainant, his brother or other witnesses and he did not demand any bribe at any point of time from anyone. He claimed that the dismissal of anticipatory bail applications of PW8 Yogesh were on merits; rather PW8 and his family members had threatened Sachin Goel, the complainant of the earlier FIR; PW9 Rajiv was not even present in the Court during hearing of the anticipatory bail application; the first anticipatory bail application of PW8 was dismissed on 11.04.2014, the second anticipatory bail application was dismissed on 17.04.2014 and even on that day he did not meet PW13 in the Court and he did not even see him on that day. Meeting PW9 and his friends on 12.04.2014 is completely denied by the accused and the accused claims that therefore there was no question of recording of any conversation between him and the witnesses; the CD and transcripts are claimed to be forged and fabricated intentionally to implicate the accused and that the complainant side wanted to secure anticipatory bail and wanted to save PW8 from arrest and prosecution and therefore he was implicated in a false and concocted case. Accused also claims that a false complaint was given against him at the behest of senior officials who did so at the behest of a senior journalist of Aaj Tak News Channel; no recording in the mobile phone of the complainant is proved in this case; the complaint and other documents of this case were fabricated to implicate him under the influence of complainant party; the CDRs of the mobile phone of the complainant party were deliberately not collected timely and taken on record, else it would have CNR No. DLCT110019112019; CC No. 345/2019; FIR No. 249/14; PS Mayur Vihar; State Vs. Bhanu Kanwariya; Dated 03.02.2023;
Page 6 of 34 7belied the version of the complainant side; the sanction granted against him was without application of mind and was granted mechanically as entire material was not sent to the sanctioning authority. The accused even denied that his voice sample was taken and he discredited the FSL result also as being unreliable claiming that PW4 gave a false report without examining the exhibits; the report is given on the basis of copy of audio recording which itself was inadmissible and also that PW4 was not a competent person to give opinion on electronic evidence in terms of Sec. 45A of the Indian Evidence Act. Accused claims that when PW8 could not secure anticipatory bail on two occasions, he created false CD and he again applied for third anticipatory bail, but it was also dismissed and thereafter the accused was implicated. The prosecution witnesses, particularly PW8, 9, 10 & 13 are claimed to be interested witnesses. The accused claims that he is innocent and instead the complainant side is disgruntled and are habitual offenders with criminal antecedents and also the complainant was habitual of making false allegations against public servants whoever wanted to take action against the complainant. The complainant also allegedly threatened and tried to win over Sachin Goel the complainant of the earlier FIR and when they could not succeed in securing anticipatory bail for PW8, the accused was implicated. The accused did not opt to lead any evidence in his defence.
5. I have heard Ld. Counsel for the accused and Ld. Prosecutor for the State.
5.1. Ld. Counsel for the accused argued that there is no evidence at all to convict the accused for alleged demand of bribe either on 30.03.2014 or 12.04.2014 and the witnesses qua that demand are all unreliable in view of material contradictions in their testimonies and also because the witnesses examined on that aspect are only the complainant, his family members and one close friend. Regarding the alleged audio recording containing fact of demand of bribe dated 12.04.2014, it is claimed that the same has not been proved and once the recording has not been proved and the oral testimony is unbelievable, the accused deserves acquittal U/s 7 of the POC CNR No. DLCT110019112019; CC No. 345/2019; FIR No. 249/14; PS Mayur Vihar; State Vs. Bhanu Kanwariya; Dated 03.02.2023;
Page 7 of 34 8Act. It is also argued that as regard the charge U/s 506 Part-II of IPC, even the same has not been proved by the prosecution beyond doubt and the allegations of threat extended allegedly on 26.04.2014 were introduced after more than four years of the date of threat.
5.2. On the other hand, Ld. Prosecutor for the State claims that the prosecution witnesses PW8, PW9, PW10 & PW13 have proved the fact of demand of bribe by the accused and also PW13 has proved the fact of criminal intimidation, beyond reasonable doubt. It is claimed that minor contradictions existing in the testimonies of prosecution witnesses are ignorable and cannot affect the merits of the case. It is also argued by the Ld. Prosecutor that even though the recording from the mobile phone could not be proved, but its copy has been proved which contains the factum of demand by the accused.
6. Before appreciating the contentions of both the sides and the evidence of PW8, 9, 10 & 13, let it be mentioned that the allegations against the accused as to demand of bribe, as per the initial case of the prosecution pertained to two dates i.e. initial demand made on 30.03.2014 or on 09.04.2014, and the second demand made on 12.04.2014. In the complaint Ex.PW8/A, what is alleged by the complainant is that on the next date of registration of earlier FIR no. 192, which was registered on 29.03.2014, when Rajiv contacted the accused, the accused allegedly claimed that he did not mention name of PW8 Yogesh Upadhyay in the FIR and only the vehicle number was mentioned in the FIR and therefore he has option to remove the name of PW8, for which accused demanded Rs. 50,000/- from Rajiv. The allegations in the complaint then speaks of the second demand made on 12.04.2014 when Rajiv along with his two friends Pawan and Akhil went to the police station where the accused demanded four times the amount earlier demanded and then settled it for Rs. 1 Lakh. This conversation dated 12.04.2014 was allegedly recorded by Rajiv in his mobile phone. Admittedly, there is no audio recording of the factum of the earlier demand made on 30.03.2014 or CNR No. DLCT110019112019; CC No. 345/2019; FIR No. 249/14; PS Mayur Vihar; State Vs. Bhanu Kanwariya; Dated 03.02.2023;
Page 8 of 34 909.04.2014. The second offence alleged against the accused is that when the third anticipatory bail application of PW8 was dismissed on 26.04.2014, the accused threatened PW13 (father of complainant) to kill PW13 Shanti Swaroop Upadhyay as well as PW9 Rajiv and also threatened to implicate them in false case. Admittedly, there is no audio recording even of this fact.
7. Taking up the charge U/s 506 Part-II of IPC first, the only admissible piece of evidence led by the prosecution on that aspect is oral testimony of PW13 Shanti Swaroop Upadhyay who was so threatened. PW13 Shanti Swaroop Upadhyay in this regard deposed that after the anticipatory bail application of PW8 was dismissed by the Court and when he came out of the Court, accused Bhanu Kanwariya exhorted "the Court does what the police says". PW13 also deposed that on that day PW9 Rajiv was also present and when PW13 questioned the accused as to why his son was implicated in the case, the accused exhorted "buddhey abhi to tere badey bete ko fasaya hai, jhootey case mein tere chottey bete ko bhi fansa dunga, tere ko aur tere chottey bete ko jaan se maar dunga". PW13 deposed that thereafter they left for their home. The witness deposed that the alleged date of criminal intimidation by the accused was 26.04.2014 and that thereafter sample voices of PW8, PW9 & deceased Akhil were recorded on 01.05.2014.
7.1. The investigating agency claims to have recorded two statements U/s 161 Cr.P.C of PW13. The first is dated 01.05.2014 i.e. after the date of alleged criminal intimidation. In the said statement dated 01.05.2014, there is not even a word mentioned about criminal intimidation and all that is recorded in that statement is about the factum of recording of voice samples. One wonders as to why not even a whisper was mentioned by this witness in his statement dated 01.05.2014 about the alleged threat had it been true. Admittedly, no complaint was given by PW13 or his sons to the Court or to any other authority on the date of alleged threat. It was only after more than four years of the threat, in the supplementary statement CNR No. DLCT110019112019; CC No. 345/2019; FIR No. 249/14; PS Mayur Vihar; State Vs. Bhanu Kanwariya; Dated 03.02.2023;
Page 9 of 34 10U/s 161 Cr.P.C of PW13 recorded on 23.06.2018, the fact of so-called threat extended by the accused to kill PW13 and his son, to teach them a lesson by implicating in false case, is mentioned. This delay of more than four years in recording supplementary statement of PW13 containing the alleged threat, which remains unexplained, causes a serious doubt about the genuineness of the alleged threat.
7.2. Had any threat been extended by the accused to PW13 on 26.04.2014, in all likelihood PW13 and his sons would have mentioned about it to the same Court outside which the threat was extended or at least in the local chowki within the Court Complex or in the local police station or to any other authority. But no such complaint was given in any manner, either on that day or even thereafter till statement dated 23.06.2018. This is particularly important when after the threat on 26.04.2014, one statement of this witness was recorded on 01.05.2014 in which there is absolutely no mention of such threat. There is also difference of what exactly was exhorted by the accused as contained in the evidence of PW13 and in his statement dated 23.06.2018.
7.3. In the cross examination by the accused, PW13 admitted that in the present case only once his statement U/s 161 Cr.P.C was recorded by the police which was recorded on the date when the voice samples were taken i.e. on 01.05.2014. PW13 specifically claimed that besides that day no other statement of his was recorded by the police. He also admitted that he did not lodge any oral or written complaint about the threat extended on 26.04.2014 anywhere at any point of time.
7.4. In the complaint Ex.PW8/A, which was lodged on 28.04.2014, PW8 did mention about the threat extended to PW13, but then PW8 was admittedly not present at the time of the alleged threat. Admittedly, no other witness including PW9 Rajiv was a witness to the fact of extension of threat by the accused to PW13.
7.5. PW9 in his testimony at one place did claim that after the dismissal of anticipatory bail application when he and PW13 came out of the Court the accused threatened CNR No. DLCT110019112019; CC No. 345/2019; FIR No. 249/14; PS Mayur Vihar; State Vs. Bhanu Kanwariya; Dated 03.02.2023;
Page 10 of 34 11PW9 & PW13 both. But, in the next breath PW9 deposed that the threat was not extended by the accused in his presence but his father PW13 had told PW9 about it after PW9 came out of the Court Room after some time. Thus, as per PW9's own version, he was not a witness to the fact of threat. No other prosecution witness was a witness to this fact.
7.6. In absence of timely complaint by PW13 about criminal intimidation to any authority and delay of more than four years in recording of his supplementary statement, creates adequate doubt about this fact in favour of the accused. It is particularly so, as the complainant side were already dissatisfied with the conduct of the accused. In such circumstances, they had no reason to not give timely complaint about the intimidation to any authority.
7.7. In such circumstances, so far as charge U/s 506 Part-II of IPC is concerned, the same is not proved by the prosecution beyond doubt and its benefit goes to the accused and the accused is acquitted of the said charge.
8. Turning to the charge U/s 7 of POC Act, 1988, as mentioned above, it pertains to two dates.
8.1. Taking up the allegation as to the first demand, as per the complaint Ex.PW8/A, the said demand was made from PW9 Rajiv on the next day of registration of earlier FIR no. 192. Whereas, in the statement U/s 161 Cr.P.C of Rajiv dated 30.04.2014 Ex.PW9/F, the date of demand is 09.04.2014. The said date is not specifically mentioned in the complaint Ex.PW8/A, where what was alleged was that after the FIR no. 192 was registered, which was registered on 29.03.2014, in the next morning the complainant side came to know about the registration of FIR, i.e. they came to know about it on 30.03.2014 and when Rajiv contacted the accused as to that earlier case in the police station, the accused demanded Rs. 50,000/-. Though, there is slight contradiction in the complaint Ex.PW8/A as to the date of initial demand, but since no specific date is mentioned in Ex.PW8/A and, even if the first date of demand is taken to be as 09.04.2014 and not CNR No. DLCT110019112019; CC No. 345/2019; FIR No. 249/14; PS Mayur Vihar; State Vs. Bhanu Kanwariya; Dated 03.02.2023;
Page 11 of 34 1230.03.2014, still this demand by the accused is not proved beyond reasonable doubt for the following reasons.
8.2. To this fact of initial demand of Rs. 50,000/-, whether on 30.03.2014 or on 09.04.2014, the only witness admittedly is PW9 Rajiv Upadhyay. Admittedly, the complainant PW8, or PW10 & 13 were not present when this demand was made by the accused from PW9 and therefore their testimony on this aspect is hit by the principles of hearsay.
8.3. On this aspect of matter PW9 deposed that when he went to the police station on 09.04.2014, he met the accused and the accused demanded Rs. 50,000/- in order to help PW8 secure anticipatory bail. As per PW9 his relative Balram Dixit was also present at the time when the demand was made by the accused. PW9 sought two days' time from the accused to think about the demand and left the police station.
8.4. Balram Dixit who was allegedly present with PW9 at the time of demand has not been examined by the prosecution and thus a material witness has been withheld from the Court. Absolutely no justification has been offered, either in the charge sheet or in the evidence of the prosecution as to why Balram Dixit was not named as a witness in this case and why he was not examined. Balram Dixit was none other than a relative of PW9. PW9 in his statement U/s 161 Cr.P.C dated 30.04.2014 did mention specifically that at the time of demand of Rs. 50,000/- by the accused on 09.04.2014 one of his relative was present with him. Though, in this statement U/s 161 Cr.P.C name of relative is not mentioned, but the investigating officer should have taken care of finding out the name and then listing the name of that relative as a witness in this case. No attempt was made by the investigating agency to do so for any justifiable ground. Neither statement of Balram Dixit was recorded, nor he was named as a witness.
8.5. Not only on this ground that a material witness has been withheld from the Court by the prosecution, but also for the following reasons this demand on 09.04.2014 CNR No. DLCT110019112019; CC No. 345/2019; FIR No. 249/14; PS Mayur Vihar; State Vs. Bhanu Kanwariya; Dated 03.02.2023;
Page 12 of 34 13is not satisfactorily proved beyond reasonable doubt. PW9 admitted in his cross examination by the accused that the fact of this demand on 09.04.2014 was averred in the second anticipatory bail application of PW8 preferred within few days of 09.04.2014. PW9 claimed that he had informed the lawyer before filing of the second anticipatory bail application about the demand made on 09.04.2014 and he had also told the lawyer specifically to mention about the fact of demand of bribe by the accused in the second anticipatory bail application. PW9 also claimed that in the said second anticipatory bail application, the fact of demand was mentioned. But factually this demand of 09.04.2014 is not mentioned in the second anticipatory bail application which was filed on 16.04.2014 and dismissed on 17.04.2014. This second anticipatory bail application was heard and then withdrawn by the Counsel for PW8 on 17.04.2014 and the said order also does not reflect that the Counsel for PW8 brought to the notice of the Court about any demand made on 09.04.2014. Also, even though the first anticipatory bail application was preferred on 02.04.2014, but it was heard and decided on merits only on 11.04.2014 and in the order dated 11.04.2014 also there is not even a word mentioned that the Counsel for PW8 brought to the notice of the Court hearing the anticipatory bail application about any demand made by accused on 09.04.2014.
8.6. PW9 also admitted that prior to complaint Ex.PW8/A, on which the present FIR has been registered, one complaint was submitted to DCP, Vigilance on 25.04.2014 Ex.PW8/C and that even in the said complaint there is no mention of the demand dated 09.04.2014. In his cross examination, at one place PW9 also faltered as to the date of his first visit to PS Mayur Vihar after the registration of FIR no. 192. He claimed that he had visited the police station after the said FIR only on two occasions. Second visit was on 12.04.2014. But as to the first visit, at one place PW9 claimed that he went on 5 th or 6th of April, at the second place he claimed that he went on 9th April and not on 5th or 6th April.
CNR No. DLCT110019112019; CC No. 345/2019; FIR No. 249/14; PS Mayur Vihar; State Vs. Bhanu Kanwariya; Dated 03.02.2023;
Page 13 of 34 148.7. Even if this discrepancy as to the date of first visit of PW9 to PS Mayur Vihar is ignored as a small error, the fact that Balram Dixit was neither cited as a witness nor examined as a witness and there is no mention about the demand in the second anticipatory bail application as well as in the complaint dated 25.04.2014 Ex.PW8/C, creates a reasonable doubt about the genuineness of the claim of PW9 as to the demand dated 09.04.2014. After all, why would PW9 and his brother not mention even a word about this demand dated 09.04.2014 in the complaint addressed to the DCP, Vigilance Ex.PW8/C wherein specific allegations have been made against the accused regarding demand made on 12.04.2014 and also regarding the conduct of Sachin Goel, the complainant of the earlier FIR. Ex.PW8/C runs into ten pages and is a complaint in detail. PW9 also admitted that this complaint was drafted with the assistance of a lawyer. Yet there is not even a word mentioned about the demand made on 09.04.2014 in Ex.PW8/C. Admittedly, there is no audio video recording of this demand dated 09.04.2014 and besides the oral claim of PW9, there is no other evidence of this demand.
8.8. As to the demand dated 09.04.2014, even PW10 Pawan deposed that prior to 12.04.2014, he did not come to know about any bribe demanded by the accused or anyone prior to that day from PW9, even though he had met PW9 twice between 29.03.2014 to 12.04.2014, and admittedly they are good friends.
8.9. For the above mentioned reasons, the Court is constrained to hold that the first demand dated 09.04.2014 by the accused from PW9 is not proved beyond reasonable doubt.
9. Turning to the only remaining allegation of demand of bribe on 12.04.2014, the prosecution proposed to prove the said allegation by the oral testimony of PW9 & 10 and, by the electronic evidence i.e. the audio recording of the demand, recorded by PW9 in his mobile phone. The testimony of PW13 Shanti Swaroop Upadhyay regarding the demand dated 12.04.2014 is absolutely of no help as he was not present at the time of demand and his testimony with respect to the demand on CNR No. DLCT110019112019; CC No. 345/2019; FIR No. 249/14; PS Mayur Vihar; State Vs. Bhanu Kanwariya; Dated 03.02.2023;
Page 14 of 34 15that day would be hit by the principle of hearsay. Similarly, the testimony of PW8 Yogesh Upadhyay as to demand dated 12.04.2014 is hit by the principle of hearsay as even PW8 was also admittedly not present at the time of demand.
9.1. The testimony of PW8 on this aspect of the matter is relevant only qua the fact that when his brother PW9 Rajiv informed PW8 about the recording made by PW9 in his mobile and when PW9 handed over his mobile phone to PW8, he prepared copy of the audio recording in CD and then got prepared its transcripts which were then submitted to the investigating agency on 29.04.2014 vide seizure memo Ex.PW3/C and also that he handed over the original mobile phone containing recording to the investigating agency vide seizure memo Ex.PW3/B. 9.2. It is only the testimonies of PW9 Rajiv & PW10 Pawan, both of whom supported the case of prosecution to the effect that the accused demanded bribe on 12.04.2014 from PW9 in presence of PW10 and one Akhil Chaudhary, which is admissible. Akhil Chaudhary could not be examined in the matter since he expired. Nevertheless, PW9 & 10 both supported the case of prosecution on the aspect of demand of bribe by the accused on 12.04.2014. Before adverting to the fact whether the oral evidence of PW9 & 10 is enough to base conviction against the accused for demand of bribe on 12.04.2014, let the admissibility of the electronic evidence sought to be proved by the prosecution on that aspect be dealt with first.
9.3. On this aspect of the matter, Ld. Counsel for the accused argued that the prosecution has failed to prove electronic evidence in accordance with law and the accused places reliance upon following seven cases.
1. Anvar P.V. Vs. P.K. Basheer AIR 2015 SC 180;
2. Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal & Ors. AIR 2020 SC 4908;
3. Jatinder Pal Singh Vs. Krishan Kishore Bajaj passed by High Court of P & H in CRM-M-37435 of 2018 (O&M) decided on 29.10.2018;
4. Tukaram S. Dighole Vs. Manikrao Shivaji Kokate AIR 2010 SC 965;
5. Ram Singh & Others Vs. Col. Ram Singh AIR 1986 SC 3; and CNR No. DLCT110019112019; CC No. 345/2019; FIR No. 249/14; PS Mayur Vihar; State Vs. Bhanu Kanwariya; Dated 03.02.2023;
Page 15 of 34 166. Nilesh Dinkar Paradkar Vs. State of Maharashtra (2011) 4 SCC 143.
7. Dola & Ors. Vs. The State of Odisha AIR 2018 SC 4020.
9.4. On the other hand, Ld. Prosecutor for the State argues that the CD has been proved in accordance with law and the concerned witnesses who recorded the audio conversation as to the demand dated 12.04.2014 have also identified the recording contained in the CD.
9.5. Though, the mobile phone in original Ex.M-1 was indeed submitted to the investigating agency on 29.04.2014 and it was duly sealed by the investigating agency before taking it into possession, but unfortunately the recording in the original mobile phone could not be proved in the matter. The original mobile phone was unfortunately ordered to be released to the complainant side by the Ld. Magistrate during investigation of the matter vide order dated 05.07.2016 Ex.PW18/B. The said order finds mention that the application for release of mobile phone on superdari was filed before the Ld. Special Judge on 28.06.2016 and that it was assigned to the Ld. MM through Ld. ACMM. The reasons for its assignment to the Ld. MM are not clear. Ld. Magistrate was not competent to deal with the application for release of the mobile phone containing the original questioned audio recording as it was only Court of Special Judge which should have dealt with the matter. Surprisingly, even the investigating agency and the prosecution did not object to release of the mobile at that stage of the matter. The said failure to oppose the release of mobile on the part of the investigating agency / prosecution could be inadvertent or deliberate to help the accused who is none other than a Delhi Police Sub- Inspector. No care was taken by the investigating agency to even get a mirror copy of the audio recording and the contents of the mobile phone prepared from the original mobile phone by the FSL. No efforts were made to even get prepared a copy of the audio recording on CD from the FSL. Despite non-preparation of mirror copies of the questioned audio recordings and non-preparation of the copies of the audio recording in the CD, the mobile CNR No. DLCT110019112019; CC No. 345/2019; FIR No. 249/14; PS Mayur Vihar; State Vs. Bhanu Kanwariya; Dated 03.02.2023;
Page 16 of 34 17phone was got released from the Court. The mobile was released to PW8 on 04.11.2016 vide panchnama Ex.PW8/F, by the IO ACP Gaurav Gupta, in presence of PW9 as well as the accused who are all signatory to the said document. Anyhow, during trial when this fact came to the notice of this Court, the mobile phone was immediately directed to be taken in custody of the Court, as mentioned in the testimony of PW4 dated 10.03.2021, when the superdar produced the mobile phone pursuant to the direction of Court on that day.
9.6. During the evidence of PW8, PW9 & PW10, when the said mobile phone was attempted to be played in the Court so that the witnesses can hear the audio conversation contained in the mobile phone, the mobile phone could not be started and therefore the recording could not be heard.
9.7. In the FSL, no copy of CD was prepared by the FSL authorities by copying the audio recording from the mobile phone. The FSL result Ex.PW4/A reflects that the concerned FSL expert PW4 V. Lakshminarshiman examined the mobile phone (marked as Exhibit 1 in the lab) and he also examined the CD make Moserbear (marked as Exhibit 2 in the lab) and then he went on to compare the sample voices of the accused, PW9, PW10 & deceased Akhil and then gave his opinion that the sample voices were matching with the respective voices of the accused and the witnesses. PW4 also gave finding under para 3(1) of his report Ex.PW4/A that when he conducted auditory analysis of the audio recording contained in the mobile phone and the audio file contained in the CD, there was no indication of any form of alteration.
9.8. In his testimony as PW4, though the FSL expert claimed that he had received the data retrieved from the mobile phone by the Computer Forensic unit of FSL, Rohini, which was found containing audio file by the name of "Bhanu Meeting 12-apr-2014 4 pm.wav", but no such CD or any other storage media in which any such data retrieval was copied by the FSL has been proved. The CD (marked as Exhibit 2 in the lab) examined by the FSL expert was in fact a CD which was CNR No. DLCT110019112019; CC No. 345/2019; FIR No. 249/14; PS Mayur Vihar; State Vs. Bhanu Kanwariya; Dated 03.02.2023;
Page 17 of 34 18supplied by PW8 to the IO and which was sent by the IO to the FSL. This fact is clear from the contents of the FSL report Ex.PW4/A which finds mention that the Parcel 2 contained the CD, which was marked as Exhibit 2 in the laboratory, and this Parcel was sealed with the seal of RK i.e. the IO. Ex.PW4/A does not find mention that any other storage media much less any CD in which the original audio recording in question was copied by the FSL was supplied to PW4. In the cross examination, PW4 specifically admitted that he did not physically examine the mobile phone and therefore was unable to answer whether the mobile phone Ex.M-1 contained any internal storage memory or had any slot for any memory card or, whether there was any memory card available in the phone or, whether the mobile phone contained any application for recording of audio files or, even whether the mobile phone was in working condition or not at that time. The witness again claimed that the mobile phone was examined by Computer Forensic Unit of FSL and that unit retrieved the data and he examined the retrieved data only. The witness even admitted that he did not hand over any such retrieved data, retrieved by the Forensic Unit, to the IO along with his FSL result Ex.PW4/A. He claimed that the retrieved data was received by him in a CD and he even did not care to see whether the contents of the mobile phone were same as contained in the CD containing retrieved data. He even claimed that the CD which was numbered as Exhibit 2 in the laboratory contained the data retrieved by the forensic unit. But then, the very fact that FSL result Ex.PW4/A reflects that Parcel-2 in which the CD was found was sealed with the seal of RK when received by this witness, disproves the oral claim of PW4 that this CD contained the data retrieved by the FSL from the mobile. Ex.PW3/C, i.e. the seizure memo vide which the CD and the transcript supplied by PW8 to the IO were taken into possession by the investigating agency, reflects that the IO sealed the same in Parcel with seal of RK. PW4 even admitted that in his report Ex.PW4/A, it is nowhere mentioned that he had examined the CD containing the retrieved data. Thus, there is no copy of retrieved data or any mirror copy of the contents of the CNR No. DLCT110019112019; CC No. 345/2019; FIR No. 249/14; PS Mayur Vihar; State Vs. Bhanu Kanwariya; Dated 03.02.2023;
Page 18 of 34 19mobile phone Ex.M-1, proved. As mentioned above, the original mobile phone could not be played.
9.9. Thus, the original audio recording could not be proved in the present case regarding the demand made on 12.04.2014.
9.10. The prosecution sought to prove the CD Ex. P-2 during the testimony of PW8 to PW10. This CD is the same CD which was seized by the investigating agency on 29.04.2014 under seizure memo Ex.PW3/C. No certificate U/s 65B of the Evidence Act qua this CD has been proved by the prosecution. This CD was claimed to have been prepared by PW8 after PW9 handed over the mobile phone containing the questioned audio recording to PW8. PW8 deposed that when his brother PW9 handed over the mobile phone Ex.M-1 to him, he heard the voice recording from the mobile phone and then he prepared copy of the audio recording in the CD and he also got prepared its transcript.
9.11. In the testimony of PW8, he gave different answers as to whether he himself prepared the copy of audio recording in the CD or he got it prepared from outside. In his initial examination in chief PW8 claimed that he prepared the CD and the transcripts. In his cross examination by the Prosecutor, after PW8 was partially declared hostile, he admitted that he had copied it on a CD with the help of his laptop at his house prior to preferring of his third anticipatory bail application which was preferred on 25.04.2014. In his cross examination by the accused, PW8 claimed that he himself did not prepare the CD, but he got it prepared by taking the mobile phone of PW9 to a cyber cafe where the mobile phone was connected to a computer with the help of a cable and then the audio file was copied on the computer of cyber cafe and then from the computer it was copied on to the CD. This process of copying was done by the cyber cafe owner / employee and not by PW8, admittedly. PW8 also claimed that total 4 CDs were got prepared and the person who copied was Rakesh, but he could not recollect the address or the name of the cyber cafe. PW8 also admitted that he got the transcripts of the audio CNR No. DLCT110019112019; CC No. 345/2019; FIR No. 249/14; PS Mayur Vihar; State Vs. Bhanu Kanwariya; Dated 03.02.2023;
Page 19 of 34 20recording prepared through some outside agency / person who was located through "Just Dial". He also admitted that the initial transcript supplied to the investigating agency was not containing true and complete account of the questioned audio recording and therefore it was again got prepared and supplied to the investigating agency. I need not go into other shortcomings in the preparation and proving of the transcripts for the reason that when the audio recording itself is not proved, its transcripts become useless.
9.12. Admittedly, PW8 did not even inform the investigating agency the name, address and details of the cyber cafe from where the CD was got prepared. Neither PW8 himself gave certificate U/s 65B of the Evidence Act, if he prepared the CD, nor there is any certificate U/s 65B of the Evidence Act from the cyber cafe. In absence of the said certificate, the CD, which is an electronic evidence, is not proved.
9.13. Once the electronic evidence, either in the form of CD or the mobile phone containing the questioned audio recording are held to be not proved in accordance with law, the transcripts becomes useless.
9.14. For the above mentioned reasons, I need not go into other shortcomings and details of the FSL result Ex.PW4/A under which the sample voices of the accused and the witnesses were compared. Suffice it to mention that admittedly PW4 did not compare the voice samples with the original audio recording contained in the mobile phone or its mirror copy, but the comparison was done only from the CD which is not proved; the audio file in the mobile phone was with a different name of "Bhanu Meeting 12-apr-2014 4 pm.wav", whereas the audio file contained in the CD was by the name of "Track 01 in cda format"; why there was a difference in the name and the format of the audio recordings; the transcripts of the audio recordings were supplied by the investigating agency to the FSL as Ex.PW4/D1 which were also admittedly seen by PW4 before comparison; the voice sample contained the repetition of the contents of the questioned audio recording by the CNR No. DLCT110019112019; CC No. 345/2019; FIR No. 249/14; PS Mayur Vihar; State Vs. Bhanu Kanwariya; Dated 03.02.2023;
Page 20 of 34 21concerned speakers, which is not in accordance with the directions passed by Hon'ble Supreme Court and; admittedly PW4 did not see the contents of the mobile phone and therefore could not confirm whether the contents of CD and mobile phone were same.
9.15. The argument of prosecution that the PWs 8, 9 & 10 had heard the audio recording in question on 29.04.2014 before the investigating agency, prior to the seizure of the mobile phone and the CD, and that these witnesses had confirmed before the investigating agency that it was the same audio recording, is of no use. Any such identification of the copy of audio recording before the investigating agency by the witnesses is useless once the electronic evidence is not proved in accordance with law in the Court.
9.16. Thus, this Court is constrained to hold that the electronic evidence of the questioned audio recording as to demand dated 12.04.2014 is not proved in accordance with law and cannot be used as a corroborative piece of evidence.
9.17. Turning to the only remaining evidence, i.e. the oral evidence of PW9 & 10 as to the demand dated 12.04.2014, it is argued by the accused that the oral evidence of PW8, 9 & 10 is not trustworthy at all and none of these three witnesses can be believed and their testimonies cannot be acted upon. It is argued that these witnesses are interested witnesses, particularly PW8 had animosity and purpose to implicate the accused; the witnesses made material improvements; they contradicted themselves and others on various points; the criminal antecedents of PW8 make him an unreliable witness; once material portion of their testimony is not believable as to the demand dated 09.04.2014 and other connected incidents, they cannot be believed even for the incident dated 12.04.2014; since they were declared hostile by the prosecution, their entire testimony has to be discarded; matter was not investigated fairly and the CDRs and other evidence to show presence of witnesses in the police station on 12.04.2014 was not collected and; all this was purposely done to save PW8 by concocting false story and evidence CNR No. DLCT110019112019; CC No. 345/2019; FIR No. 249/14; PS Mayur Vihar; State Vs. Bhanu Kanwariya; Dated 03.02.2023;
Page 21 of 34 22and ultimately PW8 succeeded in the design of evading arrest in the said earlier FIR no. 192.
9.18. The accused also places reliance upon the cases of Suraj Mal Vs. The State (Delhi Administration) AIR 1979 Supreme Court 1408; Ashok Narang Vs. State 2012 (2) LRC 287 (Del); L.K. Jain Vs. State Through CBI 124 (2005) Delhi Law Times 371; Yudhishtir, Rajkumar Vs. State of Madhya Pradesh 1971 Law Suit (SC) 146 decided on 19th February, 1971; Rudrappa Ramappa Jainpur & Ors. Vs. State of Karnataka AIR 2004 SC 4148; Shersingh & Others Vs. State of Rajasthan 1989 (1) Crimes 283 and Kishan Chand Verma Vs. State Through CBI, passed by High Court of Delhi in Crl. A. 788/2000 decided on 04.07.2019, on the points that where witnesses make two inconsistent statements in their evidence, the testimony of such witnesses becomes unreliable and unworthy of credence; if one integral part of story put forth by the witnesses is not believable the entire case fails; where the omissions in the statement of witnesses are substantial, it effects the truthfulness of the evidence; where material improvements are made by the witnesses in their subsequent statements or evidence, the veracity of the witnesses becomes questionable; and where there are serious contradictions in the prosecution's evidence it effects the merit of the case.
9.19. Accused also relies upon the cases of Sat Paul Vs. Delhi Administration AIR 1976 Supreme Court 294; Lachman Dass Vs. State of Punjab AIR 1970 Supreme Court 450; Ganapathi Sanya Naik Vs. State of Karnataka AIR 2007 Supreme Court 3213; N. Vijayakumar Vs. State of Tamil Nadu passed by Hon'ble Supreme Court in Crl. Appeal No.100-101 of 2021 decided on 03.02.2021; Chander Bhan Vs. State (CBI) passed by High Court of Delhi in Crl. Appeal No. 309 of 1977 and Prem Singh Yadav Vs. CBI passed by High Court of Delhi in Crl. Appeal No.206 of 2002 decided on 25.03.2011, on the points that where the complainant/ witness nurtures grudge against an accused and where there is an element of animosity against the accused, the testimony of such a witness has to be evaluated very CNR No. DLCT110019112019; CC No. 345/2019; FIR No. 249/14; PS Mayur Vihar; State Vs. Bhanu Kanwariya; Dated 03.02.2023;
Page 22 of 34 23closely and where such a witness improves a case, it poorly reflects upon the credibility of such a witness; where the witnesses have poor moral fiber and the witnesses are of bad antecedents which indicates possible motive to harm the accused, the evidence of such witnesses has to be scrutinized very carefully and ordinarily corroboration must be sought to the evidence of such witnesses.
9.20. The accused also places reliance upon the case of Varkey Joseph Vs. State of Kerala AIR 1993 SC 1892, to lay stress on the point that suspicion is not a substitute of proof and there is a long distance between 'may be true' and 'must be true' and that prosecution has to prove its case beyond doubt.
9.21. The accused also places reliance upon the case of Anand Ramchandra Chougule Vs. Sidarai Laxman Chougala and Ors. Crl.Appeal No. 1006-1007 of 2010 decided by Hon'ble Supreme Court on 06.08.2019, on the point that burden to prove a case lies on the prosecution which should be proved beyond all reasonable doubt, and in contradistinction to the same, the accused has to only create a doubt about the prosecution's case and the probability of his defence.
9.22. As mentioned above, PW8 & 13 are not primary witnesses to the said demand, and their testimony is hearsay on that point, therefore the discussion shall be confined to the admissible part of the direct and primary evidence of demand as deposed by PW9 & PW10.
9.23. PW9 Rajiv deposed that on 12.04.2014 he was telephonically called by PW10 from PS Mayur Vihar and he was asked to reach the police station. The accused was present in the police station as also PW10 and deceased Akhil. There the accused expressed displeasure as to why Sachin Goel was contacted by PW8 & PW9, particularly when they had assured that they will speak to the accused only. Accused also claimed that by preferring anticipatory bail application of PW8 Yogesh, they had disclosed the name of PW8 whereas accused had not named PW8 in the FIR and there was a scope of removing name of PW8 in the case. Thereafter the accused said that now PW9 would have to give four times the CNR No. DLCT110019112019; CC No. 345/2019; FIR No. 249/14; PS Mayur Vihar; State Vs. Bhanu Kanwariya; Dated 03.02.2023;
Page 23 of 34 24amount initially demanded and ultimately he brought down the demand to Rs. 1 Lakh. The witnesses then borrowed time from the accused and came out of the room of the accused in the police station which was located on the first floor, and this conversation was allegedly audio recorded by PW9. PW9 was declared partially hostile and was cross examined by the Prosecutor in which the witness admitted that at the time of demand, the accused had said that he was not demanding ten times the amount initially demanded and that he would take Rs. 1 Lakh in lump sum.
9.24. PW10 Pawan Khajuria corroborated the testimony of PW9 and deposed that he went to PS on 12.04.2014 regarding the earlier case registered against PW8 as he was a longtime friend of PW8 & PW9 and at the instance of accused he called PW9 to the police station in the afternoon. When PW9 came there, accused demanded the above mentioned amount of Rs. 1 Lakh. This witness also deposed that initially the accused told PW8 that he will have to pay ten times the amount initially demanded but ultimately the demand was settled for Rs. 1 Lakh and after few days of 12.04.2014 he came to know that PW9 had recorded the said conversation. Even this witness was declared partially hostile by the prosecution and was cross examined. In his cross examination by the Prosecutor, the witness admitted that the accused had said at the time of demand that he was not demanding ten times the amount and that he would not accept any amount lesser than Rs. 1 Lakh which will have to be paid in lump sum.
9.25. Nothing material could be brought out on record in the cross examination of PW9 & PW10 in order to discredit and impeach their testimonies as to the demand made by the accused on 12.04.2014. Though, some small discrepancies here & there do occur in the testimonies of these witnesses on other aspects of the matter, but so far as the demand of Rs. 1 Lakh by the accused is concerned, both the witnesses stood the test of cross examination and there is nothing which can discredit their version. Those small discrepancies as to what exact words were CNR No. DLCT110019112019; CC No. 345/2019; FIR No. 249/14; PS Mayur Vihar; State Vs. Bhanu Kanwariya; Dated 03.02.2023;
Page 24 of 34 25spoken to by the accused during conversation; at what exact time the call was made by PW10 to PW9; at what exact time PW9 reached police station; when exactly PW9 disclosed about the recording done by him to PW10 and others, are all trivial and inconsequential contradictions which do not affect the merits of the case. Merely because PW10 was known to PW8 & 9 for last several years cannot be a reason to throw away his otherwise inspiring oral testimony. Merely because he is known to PW8 & 9 cannot be enough to suspect his testimony and to disbelieve it. At the most, law requires that the testimony of interested witness has to be scrutinized carefully. Testimonies of such witnesses cannot simply be discarded. On a closer scrutiny of the evidence of PW10 as to the demand pertaining to 12.04.2014 it does not raise any suspicion at all in favour of the accused. Normally, public persons by themselves try to avoid becoming witnesses against policeman. In such eventuality when PW10 mustered courage and deposed about the demand, it cannot be brushed aside on the ground that he was an interested witness. He has no reason to falsely depose against the accused. It is uninspiring that he came to depose against a policeman, merely at the asking of PW8 & 9.
9.26. The call detail records of the mobile phone of accused has been proved in this case as Ex.PW6/C along with the certificate U/s 65B of the Evidence Act Ex.PW6/E. PW6 who proved these documents was not cross examined by the accused despite opportunity. It is not in dispute that the mobile number 9868759440 belongs to the accused as is clear from the Customer Application Form Ex.PW6/A. In the CDR Ex.PW6/C for the date 11.04.2014 & 12.04.2014, there are four calls between the mobile phone of the accused and the mobile phone of PW10 Pawan Khajuria. The mobile number of PW10 Pawan Khajuria is 9810919678. The Customer Application Form of PW10 is proved by PW12 as Ex.PW10/A and it is also proved by PW10 himself. Perusal of the CDR of the mobile phone of the accused Ex.PW6/C reveals that on 11.04.2014 at 22:03:46 CNR No. DLCT110019112019; CC No. 345/2019; FIR No. 249/14; PS Mayur Vihar; State Vs. Bhanu Kanwariya; Dated 03.02.2023;
Page 25 of 34 26there is a call between the number of accused and number of PW10, which lasted for 1385 seconds. This call was made one day prior to 12.04.2014. Perusal of the CDR of the mobile phone of the accused Ex.PW6/C also reveals that on 12.04.2014 there are three calls between these two numbers at 11:01:56 (for 43 seconds); at 14:16:17 (for 17 seconds) and; at 16:07:38 (for 11 seconds). These calls dated 11.04.2014 & 12.04.2014 between the number of PW10 and the accused also corroborates the version of PW10 that he spoke to the accused to pursue the case of PW8 and to help PW8. The accused has not explained these calls between him and PW10 at all.
9.27. In Appabhai and Anr. Vs. State of Gujarat 1988 Supp SCC 241, Supreme Court has emphasized that while appreciating the evidence, the court should not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. Similarly, the discrepancies which are due to normal errors of perception or observation should not be given importance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record as a whole and should not disbelieve the evidence of a witness altogether, if it is otherwise trustworthy.
9.28. The argument of accused that PW8 to 10 & 13 were all declared hostile witnesses by the prosecution and therefore their testimonies cannot be considered at all, is fallacious. Law is well settled that even if a witness is cross examined by the party summoning the witness, the evidence of such a witness does not get discarded in Toto. Believable part of testimonies of such witnesses can be indeed acted upon. It is well settled now that the testimony of a hostile witness does not get completely effaced and the Court may rely upon believable part of the testimony of a hostile witness too.
9.29. In State of U.P. v. Ramesh Prasad Misra, (1996) 10 SCC 360, Supreme Court held that evidence of a hostile witness would not be totally rejected if spoken in CNR No. DLCT110019112019; CC No. 345/2019; FIR No. 249/14; PS Mayur Vihar; State Vs. Bhanu Kanwariya; Dated 03.02.2023;
Page 26 of 34 27favour of the prosecution or the accused but required it to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated in Balu Sonba Shinde v. State of Maharashtra, (2002) 7 SCC 543; Gagan Kanojia v. State of Punjab, (2006) 13 SCC 516; Radha Mohan Singh @ Lal Saheb v. State of U.P., (2006) 2 SCC 450: AIR 2006 SC 951; Sarvesh Naraian Shukla v. Daroga Singh, (2007) 13 SCC 360: AIR 2008 SC 320 and Subbu Singh v. State, (2009) 6 SCC 462.
9.30. The argument of accused that the investigating agency did not prove presence of PW9, 10 & Akhil in the police station on 12.04.2014 by collecting their CDRs or locations of their mobile phones or through any other witness from the police station and therefore PW9 & 10 should be disbelieved as to the visit and demand dated 12.04.2014, has to be rejected. Indeed, the investigating agency failed to collect the CDRs of the mobile phones of witnesses and did not examine any witness from the police station, but because of that reason only, PW9 & 10 cannot be disbelieved. It would have been difficult for the investigating agency to have convinced any other police official from the same police station to stand and depose against the accused. Failure to collect CDRs, whether deliberately by the investigating agency to help their colleague or because of their incompetence, cannot go to the benefit of accused.
9.31. Merely because PW10 and Akhil went to the PS on 12.04.2014 of their own without informing family of PW8 cannot be a reason to suspect the incident dated 12.04.2014 as PW10 clarified that being a family friend, he was trying to help PW8 in the earlier case FIR no. 192. It is not unnatural that a family acquaintance of an accused tries to help accused in a case, either by visiting the police station or by speaking to an investigating officer.
9.32. A lot of stress has been placed by the accused on an answer given by PW10 in his cross examination by the accused that before entering the witness box PW10 as CNR No. DLCT110019112019; CC No. 345/2019; FIR No. 249/14; PS Mayur Vihar; State Vs. Bhanu Kanwariya; Dated 03.02.2023;
Page 27 of 34 28well as PW8 & 9 read the documents and statements. Merely because these witnesses read the statements, it would be insufficient to label them as tutored witnesses. After all, nothing has come in cross examination of these witnesses that what these witnesses deposed in the Court was untrue and not as per what had actually happened.
9.33. Similarly, merely because against PW8 there are earlier three FIRs registered, it cannot be held that PW8 or his family members bore animosity to the accused or for that reason they deposed falsely. In none of the earlier three FIRs registered prior to the FIR no. 192, the accused was the investigating officer or was connected in those earlier three cases in any manner. He was IO of FIR no. 192 only. Admittedly, the restaurant of PW8 was not even located within the jurisdiction of PS Mayur Vihar where the accused was posted and the FIR no. 192 was registered and therefore the claim of accused that PW8 was annoyed due to not getting free food from the restaurant of PW8 or for that reason the accused has been implicated, fails. The jurisdiction over the restaurant of PW8 is of some other police station and not of PS Mayur Vihar. The argument of accused that PW8 had earlier made allegations against some other policeman regarding some earlier incidents is also insufficient to hold that the present case was in any manner planted.
9.34. Similarly, the argument of accused that PW8 and his family members in order to secure his anticipatory bail made a false complaint of demand of bribe or that for that reason the recording was fabricated, which as per the accused is writ large from the fact that after registration of the present case against the accused investigating officer, no further anticipatory bail application was preferred by PW8 in FIR no. 192 and he was charge sheeted without arrest and even Sec. 394 of IPC was dropped from the charge sheet of FIR no. 192, does not appeal. Ordinarily, public persons are reluctant to make complaints against policeman, particularly a policeman who is an investigating officer against an accused. It does CNR No. DLCT110019112019; CC No. 345/2019; FIR No. 249/14; PS Mayur Vihar; State Vs. Bhanu Kanwariya; Dated 03.02.2023;
Page 28 of 34 29not appeal to common sense that merely to secure anticipatory bail in FIR no. 192, PW8 went to the extent of making serious allegations of demand of bribe by the accused who was an investigating officer in his case. Even if PW8 would have succeeded in convincing the Court dealing with his anticipatory bail application in that earlier FIR no. 192 that the IO was demanding bribe, that would not have entitled PW8 to claim or obtain anticipatory bail in that FIR merely on that ground. The said Court would have obviously dealt with the allegations in the earlier FIR only and not the subsequent conduct of the IO in demanding bribe, while dealing with the anticipatory bail application.
9.35. Non-conducting of the preliminary inquiry before registration of the present case is also not a ground to throw out the case of prosecution against the accused. Conducting of preliminary inquiry in such cases may though be desirable, but is not mandatory. (Reliance; CBI Vs. Thommandru Hannah Vijayalakshmi alias T.H. Vijayalakshmi and Another ...2021 SCC OnLine SC 923 Decided on October 8, 2021) 9.36. The argument of accused that since even Sachin Goel claimed that he was being threatened and pressurised to compromise the FIR no. 192 and Sachin also gave complaints against PW8 and others regarding threats and pressurisation and because of the previous involvement of PW8 in earlier criminal cases, none of the witnesses i.e. PW8, 9 & 10 should be believed, or that the prosecution witnesses had poor moral fiber, is fallacious. The complaints of Sachin Goel proved by the accused during cross examination of PW8 as Ex.PW8/D5, D6, D7 & D8, are all sent to different authorities by Sachin Goel after registration of the present FIR against the present accused. Those four complaints by Sachin Goel were sent on 30.04.2014 / 01.05.2014. It is quite possible that those complaints were got sent after the complaint against the accused of present case was filed and after the FIR of the present case was registered, in order to create evidence. In any case, even if for the sake of argument, it is taken as true that Sachin Goel was pressurised to CNR No. DLCT110019112019; CC No. 345/2019; FIR No. 249/14; PS Mayur Vihar; State Vs. Bhanu Kanwariya; Dated 03.02.2023;
Page 29 of 34 30compromise the earlier FIR no. 192, that by itself cannot reflect poorly on the moral fiber of the witnesses. Particularly, PW10 has no reason to get involved even in case it is assumed that PW8 & 9 had reasons. Merely because a witness was earlier involved in few criminal cases cannot be a ground to discredit the witness absolutely. At the most, the evidence of such a witness has to be scrutinized carefully which in this case has been done and which does not justify discarding the testimony of PW 10 particularly.
9.37. It is also vehemently argued that if the allegations of demand dated 12.04.2014 were true, in the anticipatory bail application of PW8 filed on second instance, this fact would have found mentioned. The second application was filed on 16.04.2014 and was dismissed on 17.04.2014. Indeed, in the said second application, there is no mention of demand dated 12.04.2014. But then, in the complaint Ex.PW8/C filed on 25.04.2014, there is specific allegation about this demand. Also in the third anticipatory bail application Ex.PW8/D4 the demand dated 12.04.2014 is mentioned. Qua the demand dated 09.04.2014, the absence of averment in the anticipatory bail applications were read in favour of the accused in this judgment earlier as not only there was absence of allegations qua 09.04.2014 in the bail applications but also there was absence of that demand in the complaint Ex.PW8/C. Whereas, regarding 12.04.2014 the third anticipatory bail application and the complaint Ex.PW8/C there are specific allegations. Therefore, the accused cannot argue that since this Court is disbelieving the demand dated 09.04.2014 because of absence of allegation in the bail applications, therefore this Court must disbelieve the lack of allegation about the demand dated 12.04.2014 in the second anticipatory bail application also. For the same reason, the argument of accused that when the witnesses are disbelieved qua one part of allegation, they must be disbelieved qua the rest of the allegations, also does not hold water.
9.38. It may be mentioned here that during evidence in this case though the third CNR No. DLCT110019112019; CC No. 345/2019; FIR No. 249/14; PS Mayur Vihar; State Vs. Bhanu Kanwariya; Dated 03.02.2023;
Page 30 of 34 31anticipatory bail application was proved as Ex.PW8/D4, but the first two anticipatory bail applications were not specifically put to PW8 or PW9 and they were not exhibited. Nonetheless, certified copies of those anticipatory bail applications were filed by the accused after obtaining its certified copies from the concerned Branch / Court. The fact of those applications are not denied by the prosecution.
9.39. In the case of Sheesh Ram and Ors. Vs. The State of Rajasthan, Criminal Appeal No. 191 of 2004, Decided on January 29, 2014, it is held as follows;
"7. ............................It is true that these witnesses have improved the prosecution story to some extent. But, that improvement or that exaggerated version can be safely separated from the main case of the prosecution. So far as the main prosecution case is concerned, all the witnesses are consistent. This is not a case where truth and falsehood are inextricably mixed up. Witnesses tend to exaggerate the prosecution story. If the exaggeration does not change the prosecution story or convert it into an altogether new story, allowance can be made for it. If evidence of a witness is to be disbelieved merely because he has made some improvement in his evidence, there would hardly be any witness on whom reliance can be placed by the courts. It is trite that the maxim 'falsus in uno falsus in omnibus' has no application in India. It is merely a rule of caution. It does not have the status of rule of law. ......................"
9.40. In Rizan v. State of Chhattisgarh (2003) 2 SCC 661, it is held as;
"Even if a major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of a number of other co-accused persons his conviction can be maintained. It is the duty of the court to separate the grain from the chaff. Where the chaff can be separated from the grain, it would be open to the court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of a particular material witness or material particular would not ruin it from the beginning to end. The maxim falsus in uno falsus in omnibus has no application in India and the witnesses cannot be branded as liars. The maxim falsus in uno falsus in omnibus has not received general acceptance nor has this CNR No. DLCT110019112019; CC No. 345/2019; FIR No. 249/14; PS Mayur Vihar; State Vs. Bhanu Kanwariya; Dated 03.02.2023;Page 31 of 34 32
maxim come to occupy the status of a rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called "a mandatory rule of evidence". (Also See Nisar Ali v. State of U.P AIR 1957 SC 366.)"
9.41. Accordingly, this Court finds the evidence of PW9 & PW10 qua the demand of bribe on 12.04.2014 by the accused, proved and completely believable and which can be acted upon. There is no adequate reason proved by the accused as to why he would be falsely imputed with such allegations of demand of bribe if it were not true.
9.42. In the case of A. Kanagrajan Vs. State 2014 SCC Online Madras 11323, quoting para no. 12 of the case of C. M. Sharma Vs. State of A. P. 2011 SAR (Criminal) 76, it was observed that corroboration of evidence of a witness is required when his evidence is not wholly reliable and on appreciation of evidence, witnesses can be broadly categorised in three categories viz., unreliable, partly reliable and wholly reliable. In the case of partly reliable witness, the Court seeks corroboration in material particulars from other evidence, whereas in the case of wholly reliable witness, no corroboration is necessary. In the present case at least PW10 is a wholly reliable witness and no corroboration is thus necessary.
9.43. The argument of accused that the Sanction was granted mechanically is all in the air. Merely because the Sanctioning Authority was not supplied with the audio recording; it cannot be said that the Sanctioning Authority was unable to form any prima facie opinion for according Sanction against the accused. The material supplied to the Sanctioning Authority were in itself enough for taking a decision as to grant or refusal of Sanction. While granting Sanction, a Sanctioning Authority has to form opinion only prima facie in nature based on the material supplied. Neither the Sanctioning Authority is required to undergo any detailed CNR No. DLCT110019112019; CC No. 345/2019; FIR No. 249/14; PS Mayur Vihar; State Vs. Bhanu Kanwariya; Dated 03.02.2023;
Page 32 of 34 33inquiry, nor it can be expected to undertake exercise equivalent to that of a mini trial in a criminal case, before granting or refusing Sanction.
9.44. In the case of Vinod Kumar Garg v. State (NCT of Delhi), (2020) 2 SCC 88, it is observed by the Apex Court as follows;
"25. On the said aspect, the later decision of this Court in State of Maharashtra v. Mahesh G. Jain [State of Maharashtra v. Mahesh G. Jain, (2013) 8 SCC 119: (2014) 1 SCC (Cri) 515: (2014) 1 SCC (L&S) 85] has referred to several decisions to expound on the following principles of law governing the validity of sanction: (SCC pp. 126-27, para 14) "14.1. It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.
14.2. The sanction order may expressly show that the sanctioning authority has perused the material placed before it and, after consideration of the circumstances, has granted sanction for prosecution.
14.3. The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and its satisfaction was arrived at upon perusal of the material placed before it.
14.4. Grant of sanction is only an administrative function and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence.
14.5. The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order. 14.6. If the sanctioning authority has perused all the materials placed before it and some of them have not been proved that would not vitiate the order of sanction.
14.7. The order of sanction is a prerequisite as it is intended to provide a safeguard to a public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hyper technical approach to test its validity."
9.45 Thus, the prosecution succeeds in proving its case U/s 7 of the POC Act, 1988 qua the demand dated 12.04.2014.
9.46 Sec. 7 of the POC Act, 1988 as it stood at the time of commission of offence of this case, provided that where a public servant being or expecting to be a public servant, either accepts or obtains or even agrees to accept or even attempts to CNR No. DLCT110019112019; CC No. 345/2019; FIR No. 249/14; PS Mayur Vihar; State Vs. Bhanu Kanwariya; Dated 03.02.2023;
Page 33 of 34 34obtain from any person any gratification 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 exercise of his official functions, any favour or disfavour or even for rendering or attempting to render any service or disservice to any person, such public servant shall be punished.
9.47 When the accused of the present case demanded bribe of Rs. 1 Lakh on 12.04.2014, he attempted to obtain gratification other than legal remuneration from PW9.
10 Accused Bhanu Kanwariya is thus acquitted U/s 506 II of IPC. However, he is held guilty and convicted U/s 7 of the POC Act 1988 for the demand of bribe of Rs. 1 lakh on 12.04.2014.
Announced in the open Court Digitally on 3rd February 2023. DIG signed by DIG VINAY SINGH VINAY Date: 2023.02.03 SINGH 14:11:28 +0530 Dig Vinay Singh Special Judge (PC Act) ACB-02 Rouse Avenue Courts / Delhi (r) CNR No. DLCT110019112019; CC No. 345/2019; FIR No. 249/14; PS Mayur Vihar; State Vs. Bhanu Kanwariya; Dated 03.02.2023; Page 34 of 34