Delhi District Court
Cbi vs Yoginder Kumar Etc on 28 November, 2014
CBI vs Yoginder Kumar etc
IN THE COURT OF SH. GURVINDER PAL SINGH,
SPECIAL JUDGE (PC ACT) (CBI)6,
PATIALA HOUSE COURT, NEW DELHI
CC No. 30/12 (Old CC No. 115/08)
RC No. 2A/2006/CBI/ACUI/NEW DELHI
U/S 120 B IPC/7,8,9,10,11,12 & 13(2) read with Section 13 (1)(d) of PC Act
CBI vs. Yoginder Kumar etc.
Unique ID No.: 02403R0969872008
Central Bureau of Investigation
vs
1. Yoginder Kumar (A1) S/o Sh Devinder Kumar
R/o A2/133, Hasthshal Road, Uttam Nagar, New Delhi59
2. Rakesh Kumar Bisht (A2)S/o Sh Bakhtawar Singh Bisht,
R/o A103, near A Block Market, Mother Dairy, Sector19, Noida
3. Jagdish Kumar Dhingra (A3) S/o Sh Kishan Chand Dhingra
R/o E5, 2nd Floor, Kailash Colony, New Delhi48
Previously R/o C83, Anand Vihar, Delhi92
4. Sanjeev Jain (A4) S/o Sh Naresh Chand Jain
R/o 195, Ram Vihar behind Surajmal Vihar, Delhi
5. Jawahar Lal Kataria (A5) S/o Late Sh Hukum Chand Kataria
R/o 20C, Citizen Enclave, Sector14, Rohini, Delhi
6. Kunwar Singh Rawat (A6) S/o Shri Mohan Singh Rawat
R/o Village & P.O Talwari, District Chamoli, Uttrakhand
Previously R/o A103, near A Block Market, Mother Dairy,
Sector19, Noida, UP
RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 1/107
CBI vs Yoginder Kumar etc
Date of FIR : 24/04/2006
Date of filing of Chargesheet : 24/12/2008
Case received by transfer on : 07/07/2012
Arguments concluded on : 31/10/2014
Date of Judgment : 28/11/2014
Appearances
For prosecution : Sh P.K Dogra, Ld. Senior PP for CBI.
For accused : Sh Anil Kumar, Ld. Counsel for A1, A2 and A6.
Sh Kundan Mishra, Ld. Counsel for A3.
Sh Samrat Nigam, Ld. Counsel for A4.
Sh Monicinmoy, Ld. Counsel for A5.
JUDGMENT
FACTUAL MATRIX OF PROSECUTION CASE RC no. 2A/2006/CBI/ACU1/New Delhi was registered by CBI on 24/04/2006 against arraigned accused aforesaid and Girdhari Lal Chawla and Rajeev Panwar for offences punishable under section 120B IPC r/w sec. 7,8,9,10,11,12 and 13 (2) r/w sec. 13 (1) (d) of Prevention of Corruption Act.
2. As per chargesheet, from December 2005 to April 2006 A1 was posted as Inspector and Sh Rajeev Panwar (since expired) as ASI in EOUVIII Branch of CBI, New Delhi. During that period number of cases relating to Cooperative Group Housing Societies (CGHS) scam were under investigation of CBI. A1 was indulging in corrupt activities of obtaining illegal gratification from different persons relating to CGHS RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 2/107 CBI vs Yoginder Kumar etc scam. After obtaining requisite permission from competent authority under Telegraph Act 1985 such activities of A1 were under telephonic surveillance and intercepted calls were recorded by the Special Unit of CBI. Total 51 such telephonic calls so recorded were found relevant during investigation.
3. As per chargesheet, A1 was investigating case no. RC SID 2005 E 008 registered on 19/12/2005 relating to Netaji Subhash Chandra Bose CGHS Ltd against Shri Dhanesh Chand Aggarwal, A4, Sachin Jain, A5, Rajeev Arora and others. A5 was controlling the affairs of Netaji Subhash Chandra Bose CGHS Ltd from 1990 till 2004, after which he transferred the control of the society to A4 in pursuance of their oral agreement. At the time of transfer of control of the society to A4, A5 obtained resignation of all the 60 members of the society. As per allegation of case FIR no RC 8/05EOUVIII, some of the resignations were forged. Sh S.S Marwah was one of the members whose resignation was allegedly forged by them. During investigation of the case, in March 2006, A5 visited Shri Marwah and tried to persuade him to confirm his resignation from Netaji Subhash Chandra Bose CGHS Ltd. and for this purpose A5 offered him a sum of Rs 20,000/. Despite repeated persuasion, Shri Marwah declined the offer of A5 to take refund and to own up his resignation, since he had never resigned from the society. As per chargesheet, A1 enquired from Sh Marwah over phone about his resignation letter and Sh Marwah denied the same.
RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 3/107 CBI vs Yoginder Kumar etc A1 tried to coerce Sh Marwah to own up his resignation and there was no point disputing his resignation letter. On refusal of Sh Marwah to do so, A1 issued notice to Sh Marwah for his appearance in CBI office on 26/04/2006. A5 requested A1 to postpone the appearance of Shri Marwah before him so that he could persuade him and A1 agreed to it. A1 demanded bribe of Rs 10 lakhs from A5 for helping him in criminal case which was subsequently reduced to Rs 8 lakhs. A5 told that he would bring 50% on 05/04/2006 and rest 50% after 4 days.
4. As per chargesheet, ASI Rajeev Panwar also took bribe of Rs 1500/ from A5. Allegedly, A1 also instructed A4 to pay Rs 5000/ to Rajeev Panwar in the said case. The illegal gratification was received by A1 from A5 on 05/04/2006 which he kept at residence of his sister. In support of these allegations, the telephonic call nos. 2 & 3 between A1 and N.M Sehrawat, call no. 17 by A5 to A1, call no. 28 by A1 to A5, call no. 29 by A1 to A5, call no. 30 by A1 to Neelam were relied by the prosecution. Allegedly, from the tone and tenor and overall context of the above conversations, it was established that A1 collected illegal gratification from A5 and kept it at the residence of his sister.
5. As per prosecution case, A5 and A1 were in constant touch over the phone. During the year 2006, a case RC BD1 2005 E 00015 pertaining to Radha Ballabh CGHS Ltd was under investigation against Narayan Diwakar, Devender Maan, G.L Chawla (PW14), A3 and RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 4/107 CBI vs Yoginder Kumar etc others. During this period PW14 was introduced by A3 to A2 as his friend. A3 told PW14 that A2 had influence with many officers in CBI and he (A2) was in a position to help him (PW14) in the case. During investigation, it was established that A1, A2 and Rajeev Panwar entered into the criminal conspiracy to obtain illegal gratification from PW14 and A3. A1 made a telephone call to PW14 in last week of March 2006 and called him (PW14) to attend his (A1) office on 31/03/2006. As per chargesheet, A1 was not present in his office on 31/03/2006. Telephonic conversation revealed that A1 instructed ASI Rajeev Panwar and accordingly Rajeev Panwar acted in a manner to scare PW14 showing fear of his arrest by A1. ASI Rajeev Panwar told PW14 to save himself by pleasing A1 i.e., "Achchhi Seva Pani". ASI Rajeev Panwar himself obtained Rs 240/ as "Kharcha Pani" from PW14.
6. As per chargesheet, A1 made several calls on the mobile phone of PW14 and during this period he remained in constant touch with A2 through phone. A1 increased pressure on PW14 to extract bribe. A1 also asked A2 to persuade PW14 and A2 advised PW14 to pay bribe to A1 to get rid of the case. A1 again called PW14. A1 remained in touch with A2 whereas PW14 also contacted A2 in respect of the demand of money by A1. On 03/04/2006, ASI Rajeev Panwar visited at the residence of PW14 to serve a notice issued by A1 for his appearance before CBI. There were telephonic conversation on record to RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 5/107 CBI vs Yoginder Kumar etc show that PW14 refused to accept the notice and then accused Rajeev Panwar telephonically informed A1.
7. A1 told Rajeev Panwar to demand "Dus" whereas PW14 was ready only for "One". As per telephonic conversation, A1 asked Rajeev Panwar to tighten up PW14 and asked Rajeev Panwar to finalise the deal as "Panch". In the context of the case "Dus", "One" and "Panch" had been interpreted as "Rs 10 lacs", "Rs 1 lac" and "Rs 5 lacs"
respectively by the prosecution. As per telephonic conversation, A1 telephonically informed A2 about the visit of Rajeev Panwar at the residence of PW14. He further told that PW14 was under influence and fear but he was not ready to pay more than Rs 1 lakh. A2 told A1 during telephonic conversation that his man i.e., Rajeev Panwar was not effective and PW14 was only required to be threatened with arrest.
8. As per chargesheet, there were further telephonic conversations on 04/04/2006 between A1 and PW14. Thereafter, there were telephonic conversations to show that A1 telephonically asked A2 to tackle PW14 whom he had asked to come to his office. A2 assured him to talk to PW14.
9. As per chargesheet, recorded telephonic conversations further established that on 05/04/2006 A1 telephonically contacted A5 and asked him to meet in Trans Yamuna area at 3 pm. A1 also RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 6/107 CBI vs Yoginder Kumar etc telephonically asked PW14 to meet him with bribe money outside Lazeez Restaurant, Vikas Marg, Delhi. PW14 met A1 at Lazeez Restaurant. PW14 gave an envelope of Rs 50,000/ to A1. When A1 was not ready to accept Rs 50,000/, PW14 also gave another envelope of Rs 50,000/ and thereby paid bribe of Rs 1 lakh to A1. PW14 gave statement before Ld. Metropolitan Magistrate under Section 164 Cr.P.C and corroborated the version of prosecution case on material points. By the order of the Court, PW14 was tendered pardon.
10. Allegedly, telephone numbers reflected in recorded conversations were being used by the accused persons at relevant time. During investigation, PW14 identified A1 in the presence of independent witnesses. Pertaining to the facts relating to the receipt of bribe of Rs 1 lakh by A1 from PW14, recorded conversation of call nos. 8,9,10,12,19,20,21,23,24,26,28,29,34 and 35 between A1, A2, Rajeev Panwar, A5 and PW14 corroborates the material facts of the charge sheet as well as statement of PW14 under Section 164 Cr.P.C.
11. As per chargesheet, A3 was appointed as property dealer in respect of the residential township in the name of Silver City at Jaipur by M/s U Turn Housing Pvt. Ltd. A1 and A2 conspired to obtain illegal gratification from A3. In pursuance to the said conspiracy, they booked four plots in their names or in the names of their relatives and friends at concessional rates through A3. A3 paid Rs 1 lakh from his RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 7/107 CBI vs Yoginder Kumar etc own pocket towards the booking amount of one plot. A3 booked four above mentioned plots in the name of Sh Rajinder Singh Gosai, A6, Smt Neelam and Shri Rakesh Kumar against cash payment for which receipt no. 245, 246, 247 & 248 dated 05/04/2006 were issued by Sh Nikhil Tripathi.
12. As per chargesheet, A3 was acquainted with A2 and requested his help in the cases of CBI against him. During investigation, notices under Section 160 Cr.P.C issued to (1) A3 in CBI case no. PE/4(E)/2005EOWI/DLI; (2) Shri S.P Saxena in PE/4(E) & 5(E)/2005 EOWI/DLI and (3) Sh Sanjay Kumar Kapasia in case no. RC 10 (E)/2005EOWI/DLI were recovered.
13. Investigation revealed that as per call details of telephone number of A2, A2 was in constant touch over telephone with A3.
14. As per investigation, A2 was working as tout for A1. During house search of A2, various incriminating documents pertaining to the material transaction of this case were recovered which corroborated role of A2 in the commission of crime.
15. As per chargesheet, no reference was found regarding the role of PW14 and A3 in the case diaries issued by A1 nor there was any reference in respect of issuance of notices under Section 160 Cr.P.C.
RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 8/107 CBI vs Yoginder Kumar etc PW14 and A3 were not involved in the case being investigated by A1, as Inspector.
16. As per chargesheet, A3 along with PW14 were accused in another case RC no. BDI/2005E0015 at CBI, BS&FC, Yashwant Place, New Delhi. A3 was also one of the accused in CBI case no. DST 2005 S0007 pertaining to Gautam Cooperative Group Housing Society registered in CBI, STF, New Delhi. In another case EOUI 2006 E 0002 pertaining to M/s Royal Friends CGHS, nephew of A3 was an accused along with S.P Saxena and others. Matters of all these accused were investigated by the other officers of CBI and A1 had nothing to do with these cases.
17. During search, a slip pad was recovered from the shop of A3 on which the names of A2, A6, Smt Neelam and Rajinder Singh Gosai were written. As per chargesheet, plots were booked by A3 in the names of these persons with M/s U Turn Housing Pvt Ltd. A paper on which the office address of A1 and a telephone diary containing mobile number of A1 were also seized from the house of A3. In statement under Section 164 Cr.P.C., PW14 also confirmed the booking of three plots by A1 in a housing scheme at Jaipur and the payment of Rs 1 lakh by A3 from his own pocket towards the booking of these plots. Recorded call conversation in call numbers 18,21,37,42 and 44 between A1 and A2; A3 and A1 were in respect of the transactions RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 9/107 CBI vs Yoginder Kumar etc pertaining to the booking of plots aforesaid.
18. From the telephonic conversation, it was also allegedly established in investigation that A1 asked A3 to book two more plots of 300 yards, each at Jaipur in the names of Rajkumar and Ghanshyam. A3 requested A1 to send Rs 2 lakhs for booking of two more plots. As per chargesheet, for booking amount of Rs 2 lakhs for booking two additional plots at Jaipur, A1 told A2 vide call no. 46 dated 04/06/2006 that he had to collect Rs 3 lakhs from A4. A2 volunteered to send his man to A4 to collect the said money. A2 gave telephone number of A6 to A1 and took the address of A4 from him. Vide call no. 47 dated 06/04/2006 at 2.01 pm, A1 told A4 to talk to A6 and gave his telephone number. A1 also told A4 that A6 would collect money from him. Immediately, thereafter vide call no. 48 at 2.06 pm, A1 called A2 and informed him that he had intimated A4 and A2 confirmed that A4 had called him.
19. Investigation further revealed that before visiting at the residence of A4, A6 made two calls to A4 at 3.10 pm and 3.21 pm and thereafter visited residence of A4. A6 collected an amount of Rs 3 lakhs in cash from A4. A4 confirmed transaction to A1 vide call no. 49 at 3.30 pm. A4 and A6 confirmed the transaction of Rs 3 lakhs. After collecting amount of Rs 3 lakhs, A6 visited at the office of A3. A3 was not present but his nephew Pankaj Dhingra was present. A6 RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 10/107 CBI vs Yoginder Kumar etc handed over Rs 2 lakhs to Pankaj Dhingra and Rs 1 lakh to A2.
20. As per chargesheet, on 13/04/2006 A1 sent his cousin Pradeep Kumar @ Raju to A2 to collect Rs 1 lakh and a mobile phone from him. Pradeep Kumar collected the same and gave it to A1 which was reflected in recorded call conversations in call nos. 50 and 51.
21. As per chargesheet, control of Netaji Subhash Chandra Bose CGHS Ltd was transferred by A5 to A4 and the case pertaining to the said society was investigated by A1. A1 had been demanding illegal gratification from A4. A1 was in constant touch with A4 through phone. A1 was in Bhubaneswar from 02/02/2006 to 05/02/2006 and 05/03/2006 to 10/03/2006 and was staying at BSNL Guest House, Bhubaneswar. During his stay at Bhubaneswar, A1 made 15 telephonic calls at the number of A4, N.M Sehrawat, A5 and Pradeep Kumar between 03/02/2006 to 08/03/2006. Recorded call conversations in telephonic call nos. 36, 44, 45, 46, 47, 48 and 49 between A1 and other accused persons revealed following facts. During conversation with Sh N.M Sehrawat, A1 admitted that A4 had agreed to his demand for bribe. On 05/04/2006, A1 made a call to A4 and asked him to bring Rs 3 lakhs but A4 expressed his inability by telling that he was in Ghaziabad. A1 asked A4 to meet on 06/04/2006.
22. Investigation revealed from the collected documents RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 11/107 CBI vs Yoginder Kumar etc pertaining to mobile phones and land line phones that A1 and A2 were using number of SIM Cards/Cell phones taken in pseudo/fake names by impersonation on the basis of false/forged documents to avoid identification. During house search of A1, a piece of paper bearing "colour television owner's manual" was found on which several telephone numbers including the numbers of A3 and A2 and others were found. CFSL report established that these writings were of A1. During investigation, it had been revealed by statement of number of witnesses that A2 was not only in touch with A1 but also with several other IOs of CBI which reflected that A2 was cultivating many IOs of CBI to abuse their position.
23. During investigation, voice samples of A3, A4, A5, A6 and Pradeep Kumar were sent with the recorded conversation for comparisons and obtaining expert opinion about the questioned conversations. A1 and A2 refused to provide their voice samples. Voice samples of A1 given in another case RC 1/06 were used for comparison. Expert of CFSL had given positive opinion on the comparison of voice samples.
24. PW14 was granted pardon by the Ld. Predecessor on 15/01/2007. Thereafter, he had been cited as a witness. Sanction for prosecution was accorded by competent authority against A1 under Section 19 of The Prevention of Corruption Act, 1988 which had been RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 12/107 CBI vs Yoginder Kumar etc filed on record. Accused Rajeev Panwar had expired during investigation and therefore, case stood abated against him.
25. A1 and A2 were arrested on 24/04/2006 and suffered detention till 23/06/2006 and then enlarged on statutory bail on failure of investigating agency to file chargesheet in prescribed period. A3 was not arrested in course of investigation. A4 was enlarged on anticipatory bail. A5 and A6 were arrested on 09/11/2006 and enlarged on bail on 24/11/2006.
26. On completion of investigation, chargesheet was filed on 24/12/2008. Cognizance of the offences was taken on 29/01/2009. Copies were supplied to the accused persons and requirements of Section 207 of Cr. PC were complied with.
CHARGE
27. In terms of order on charge dated 25/02/2012 of my Ld. Predecessor, charges for offence under Section (1) 120B of Indian Penal Code r/w Section 7,8,9,10,12,13 (2) r/w Section 13 (1) (d) of The Prevention of Corruption Act, 1988 against all accused; (2) 7,10,13 (2) r/w Section 13(1)(d) of The Prevention of Corruption Act, 1988 against A1; (3) 8,9 & 12 r/w Section 7 or/and Section 11 of The Prevention of Corruption Act, 1988 against A2; (4) 12 r/w Section 7 or/and 11 of The RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 13/107 CBI vs Yoginder Kumar etc Prevention of Corruption Act, 1988 against A3, A4 and A6; (5) 8,9,10,12 r/w Section 7 or/and 11 of The Prevention of Corruption Act, 1988 against A5; were framed by my Ld. Predecessor to which all accused persons pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
28. To connect arraigned accused with the offences charged, prosecution has examined in all 76 witnesses namely Sh R.K Gupta (PW1); Sh Pawan Singh (PW2); Sh Sanjeev Lakra (PW3); Sh Hoshiar Singh (PW4); Sh Ram Nayan Chauhan (PW5); Sh Jai Singh (PW6); Sh Raj Kumar (PW7); Sh Shashi Chawla (PW8); Smt Prem Kumari Chawla (PW9); Sh R.K.B Singh (PW10); Sh Praveen Kumar (PW11); Inspector R.P Sharma (PW12); Inspector Jagrup Singh (PW13); Sh Girdhari Lal Chawla (PW14); Sh Ashok Bansal (PW15); Sh Rajeev Singhal (PW16); Sh Anup Kumar Verma (PW17); Sh Bansi Lal (PW18); Sh Pradeep Kumar (PW19); Sh Nikhil Tripathi (PW20); Sh Surinder Singh Marwah (PW21); Inspector Jagdish (PW22); Sh K.S Lohchab (PW23); Sh Shyama Nand Mohanty (PW24); Inspector Rajinder Singh Gosai (PW25); Deputy SP M.C Kashyap (PW26); Sh R.S Yadav (PW27); Sh Arun Kumar (PW28); Sh Ziauddin Khan (PW29); Sh R.K Singh (PW30); Sh Mohd Aqil (PW31); Sh Vipin Bihari Kaushik (PW32); SP S.K Peshin (PW33); Sh Chander Sain (PW34); Sh Sunil Kumar Sharma (PW35); Inspector R.K Singh (PW36); Sh R.S Malik (PW37); Sh Matias Bihan (PW38); Sh Randhir Rawat (PW39); Sh Ram RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 14/107 CBI vs Yoginder Kumar etc Swarup Yadav (PW40); Sh S. Ingarsal (PW41); Sh Piyush Anand (PW42); Sh Kuldeep Singh (PW43); Sh Bhim Singh (PW44); Sh Ashok Kumar (PW45); Inspector R.L Yadav (PW46); Sh Raj Kumar (PW47); Sh Pankaj Kumar Dhingra (PW48); Deputy SP T.P Singh (PW49); Inspector Arun Rawat (PW50); Inspector Vipin Kumar (PW51); Sh M.S Bawra (PW52); Inspector Kapoor Singh (PW53); Sh Subhash Taneja (PW54); Sh Sanjiv Kumar Sharma (PW55); Inspector S.S Yadav (PW56); Sh Satnam Singh (PW57); Sh L.R Gulati (PW58); Sh Rajan Nayyar (PW59); SP D.S Dagar (PW60); Dr. Rajender Singh (PW61); Sh D.S Rawat (PW62); Ms. Lavang Lata (PW63); Additional SP Satvir Singh (PW64); Sh A.D Tiwari (PW65); Sh R.C Mendiratta (PW66); Sh Rajesh Kumar Singh (PW67); Sh Pradeep Kumar Gottam (PW68); Sh Anuj Bhatia (PW69); SP Tanmaya Behera (PW70); Additional SP S.C Dandriyal (PW71); Sh Pawan Singh (PW72); Colonel Anil Kumar Sachdeva (PW73); Sh A.S Chaudhary (PW74); Sh Sarat Chandra Pradhan (PW75) and Sh Ram Nath Rai (PW76).
STATEMENT OF ACCUSED
29. Thereafter all accused were examined under Section 313 Cr. P.C. All incriminating material in evidence was put to the accused persons. All accused persons pleaded innocence and false implication.
30. In his statement under Section 313 Cr.P.C, A1 stated that the sanction was invalid as it was given mechanically without RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 15/107 CBI vs Yoginder Kumar etc application of mind and without going through any documents. A1 also stated that FIR no RC 8 of 2005 was entrusted to him for investigation; Sh Rajiv Panwar never assisted him but he did not knew about the other IOs. A1 also stated that the voices in call nos. 1,2,3,4,5,6,7,8,9,10,11, 12,13,14,15,17,18,19,20,21,22,23,24,25,26,27,28,29,31,32,33,34,35,36, 37,38,39,40,42,43,44,45,46,47,48,49,50 and 51 in CD Ex Q1 were not his voice; no such conversations were held; the transcription D164 was a fabricated document. A1 admitted that PW25 Inspector Rajinder Singh Gosai was his batchmate. A1 admitted that he and PW53 Sh Kapoor Singh were in EOUVIII of CBI for sometime but they never used to sit in the same room. A1 stated that photograph at point A on Ex PW15/A (colly) (D50) appeared to be his photograph. A1 stated that he did not assist PW23 Sh K.S Lohchab in PE1/2005 registered in EOU VIII, New Delhi whereas case FIR No. RC 8/2005 was entrusted to him (A1) for investigation. A1 stated that PW23 had wrongly identified the writings and signatures on Ex PW23/A, Ex PW23/B, Ex PW23/C, Ex PW23/D, Ex PW23/E, Ex PW23/F, Ex PW23/G1 to G9 whereas PW23 had never seen him (A1) writing and signing. A1 stated that calls in CD Ex Q1 did not pertain to him and were tampered, manipulated and fabricated. A1 also stated that orders Ex PW26/E (D30), Ex PW26/G1 (D32), Ex PW26/G2 (D33), Ex PW26/G3 (D34), Ex PW26/G4 (D
35) were fabricated and even certificate Ex PW26/H (D83) was fabricated subsequently. A1 stated that his sample voice was never recorded; the memorandum Mark P62/1 was fabricated document. A1 RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 16/107 CBI vs Yoginder Kumar etc stated that he never used mobile phone numbers 9868030030 and 9911108009. A1 stated that he had never met PW54. A1 stated that he had not taken any mobile connection from M/s Radio Sales Corporation. A1 stated that PW19 had wrongly identified the conversation (1) in call no. 50, whose transcript is there in Ex PW19/C1[part of D164{Ex PW71/L (colly)}]; (2) in call no. 51, whose transcript is there in Ex PW19/C2[part of D164{Ex PW71/L (colly)}]. A1 admitted that PW19 is his cousin but they used to meet very rarely and he did not knew about duty hours and place of working of PW19. A1 stated that due process of law was not followed while recording the statement Ex PW67/B under Section 164 Cr.P.C of PW14, which statement was false and motivated and given at the behest of CBI to get pardon. A1 stated that the memorandum Ex PW10/A was fabricated. A1 stated that PW14 had wrongly identified the conversations in call numbers 12,13,21,25 and 34 and no such conversation was held and voice files in CD Ex Q1 did not contain his voice while D164 was a fabricated document. A1 admitted that he was posted in EOUVIII Branch, CBI and his office was situated in the same building where office of PW13 was located. A1 stated that he never refused to give voice sample; the memos (1) Ex PW32/B (D9) and (2) Ex PW32/A (D8) were fabricated. A1 stated that Ex PW71/C, Ex PW72/B, Ex PW10/A were fabricated documents. A1 stated that the search conducted at his residence on 24/04/2006 was illegal; he was living in a joint family; his parents, families of both his elder brothers namely Sh Ghanshyam Dass and Sh Yashpal and his family were RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 17/107 CBI vs Yoginder Kumar etc residing in the same house; the seized documents did not belong to him; nothing was seized from his possession. A1 also stated that the documents and the memorandums were manipulated and fabricated to make out a false case; his sample voice was never recorded; false and incorrect reports were managed from CFSL; his specimen writings were never obtained; false statements of witnesses were recorded; invalid sanction for prosecution was obtained and it was a false case against him. A1 stated that the search conducted at his office was illegal; the documents mentioned in the search cum seizure memo were related to the cases under investigation with him; some of the fabricated documents were planted to make out a false case against him. A1 stated that slip pad D97 was a planted document and did not contain his writing and handwriting expert opinion about writings in said pad was incorrect. A1 stated that piece of paper Ex PW23/F did not belong to him and he had no concern with this document. A1 stated that mobile phones Ex PW71/M, Ex PW71/O; Idea SIM Card Ex PW71/P as well as SIM Ex PW71/N did not belong to him. A1 stated that illegal search was conducted; he was living in a joint family along with his parents and families of his two brother in the same house, which was searched; the seized documents and articles did not belong to him and the same were not recovered from him. A1 stated that the voices Mark Ex Q1 (1) (A) to Q1 (51) (A) were not his voices; reports Ex PW61/C, Ex PW63/A (colly) were incorrect. A1 stated that he had been falsely implicated in this case in connivance with senior officers of CBI on the basis of false RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 18/107 CBI vs Yoginder Kumar etc and fabricated documents/articles and on the basis of inadmissible evidence.
31. In his statement under Section 313 Cr.P.C, A2 stated that the voices purported to him as 'RB' in transcript D164 pertaining to call nos. 6, 7, 14, 18, 23, 24, 26, 31, 32, 33, 35, 37, 38, 39, 42, 46 and 48 in CD Ex Q1 were not his voice; no such conversations were held; the transcription D164 was a fabricated document. A2 stated that he did not knew PW22 Inspector Jagdish, PW25 Inspector Rajinder Singh Gosai and Inspector Satender Gosain. A2 stated that he never met PW22 and PW22 had wrongly identified voices depicted as 'RB' in transcript D164 to be his (A2) voices in CD Ex Q1; CD Ex Q1 did not contain his voices in call nos. 6, 7, 14, 18, 23, 24, 26, 31, 32, 33, 35, 37, 38, 39, 42, 46 and 48 whereas CD Ex Q1 was tampered and fabricated. A2 stated that he did not knew whether the orders (1) Ex. PW 26/E (D30); (2) Ex. PW 26/G1 (D32); (3) Ex. PW 26/G2 (D33); (4) Ex. PW 26/G 3 (D34); (5) Ex. PW 26/G4 (D35) pertaining to the intercepted telephone numbers were seized vide seizure memos Ex PW26/D (D29) and Ex PW26/F (D36) but these orders were fabricated. A2 stated that Ex PW26/H (D83) was a fabricated document. A2 stated that he had not purchased any mobile connections of Reliance and other service providers, as alleged by PW18. A2 stated that mobile number 9811283390 was never used by him. A2 stated that he did not knew PW19 and had never met him. A2 stated that PW19 had wrongly RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 19/107 CBI vs Yoginder Kumar etc identified the conversation depicted allegedly between him, A1 in call no. 51 Ex PW19/C2 [part of D164 {Ex PW71/L(colly)}]; no such conversation was held; the said call did not contain his voice and he did not knew A1. A2 stated that he had booked the plots through M/s U Turn Housing Company after paying the market price for the same but had never met A3 in this regard. A2 stated that due process of law was not followed while recording the statement Ex PW67/B under Section 164 Cr.P.C of PW14; the statement Ex PW67/B of PW14 was false and motivated; false statement was given by PW14 to get pardon. A2 stated that he did not knew anything about conversations of call numbers 12, 13, 21, 25, 34 in CD Ex Q1whereas CD Ex Q1 and transcript D164 were fabricated. A2 stated that he had never met PW12 Inspector R.P Sharma nor knew any Mrs Neelam. A2 stated that the memos Ex PW32/A (D8) and Ex PW32/B (D9) were fabricated and he never refused to give voice sample. A2 stated that search conducted at his residence on 24/04/2006 was illegal and some documents were planted by CBI whereas the documents and the articles seized did not belong to him. A2 stated that the documents and the memorandums were manipulated and fabricated to make out a false case; his sample voice was never recorded; false and incorrect reports were managed from CFSL; false statement of witnesses were recorded and this is a false case against him. A2 stated that the document Ex PW23/F did not contain his mobile as well as land line numbers. A2 stated that PW71 had recorded false statements of witnesses. A2 stated that he did not knew A1 nor RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 20/107 CBI vs Yoginder Kumar etc his mobile number nor A1 asked him to change the mobile sets. A2 stated that he never refused to give voice sample. A2 stated that he did not knew A1, A3, A4, A5, Sh Pradeep Kumar and PW14. A2 stated that CD Ex Q1 and audio cassettes Exts. SV1, SV2, SV3, SV4, SV5 and SV6 were fabricated; incorrect report Ex PW61/C was given by the expert PW61 without any examination. A2 stated that he has been falsely implicated in this case in connivance with senior officers of CBI on the basis of false and fabricated documents/articles and on the basis of inadmissible evidence.
32. In his statement under Section 313 Cr.P.C, A3 stated that he did not knew PW25 nor ever met him; A2 deposited four forms and Rs. 5 lakhs in all towards booking of the four plots in Silver City Jaipur; there was one form bearing the name of Sh. Rajinder Singh Gosai, which was also given by A2 and the same along with other forms and Rs. 5 lakhs was collected by the company M/s UTurn officials from office of A3 and against them the receipts were issued by the company itself. A3 denied of being taken on 30/05/2006 with PW14 to CFSL Unit in Fourth Block, CGO Complex of CBI by PW56 for recording of voice samples there. A3 admitted that PW51 had conducted search at his residence and business premises on 24/04/2006 from where documents were seized vide search cum seizure memo Ex PW45/A (D94) including slip pad of Neelgagan Ex PW51/A (D95). A3 stated that he had noted down the size of plots and the name of persons in whose name the booking forms RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 21/107 CBI vs Yoginder Kumar etc were received for booking of plots in Silver City at Jaipur launched by M/s UTurn Private Limited; these all forms in the name of persons mentioned in the pad was provided by A2 in his office against which the payment of Rs. 5 lakhs in all were also duly received in office of A3 and the forms and payments were duly collected by the officials of M/s UTurn Company Private Limited from office of A3. A3 also voluntarily stated that Rs. 3 lakhs was given by A2 in the first time and on the very next day Rs. 2 lakhs was sent in office/shop of A3 by and through a person, who said that he was deputed by A2. A3 stated that mobile phone number 9810205111 was in his name and was postpaid. A3 stated that A2 came twice in his shop/office; first to collect the booking forms for the plots in Silver City Jaipur launched by M/s U Turn Company Private Limited and second time to deposit those forms in his shop / office along with payment of Rs. 3 lakhs; on the next day, a person who said himself to be deputed by A2 came to deposit in the office / shop of A3 remaining Rs. 2 lakhs; all those four forms and money totaling Rs. 5 lakhs was collected from the office / shop of A3 by officials of M/s UTurn Private Limited on the day when they were deposited and except that A3 had no contacts with A2. A3 admitted that in April 2006 A2 had come to the office of Dhingra Properties for the booking of plot at Diggy Road, Jaipur of U Turn Housing Private Limited, also called as Silver City. A3 also admitted that whenever he was in office, he used to receive the money for booking of plots in Jaipur from the persons booking the same and in his absence his relative RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 22/107 CBI vs Yoginder Kumar etc (nephew) PW48 used to receive such money but no receipt was issued by PW48 for cash or cheque received by him for such bookings. A3 voluntarily stated that the receipts used to be issued by the company M/s UTurn Private Limited itself after duly receiving the payments and forms; the company used to directly deal with the purchasers/buyers there onwards. A3 admitted that in April 2006 a person had come to his office in his absence and gave sum of Rs 2 lakhs in cash to PW48 and told that said money was sent by A2 which was received by PW48 and A3 further voluntarily stated that said sum of Rs 2 lakhs were collected by the officials of company from his office/shop on the same day. A3 admitted that from year 2003 till year 2007 PW48 had worked with him in his property business and remained in his (A3) office from 10 am to 7 or 7.30 pm; when A2 came to book plot, then A3 told PW48 that A2 was engaged in business of mobile phones; generally A3 used to tell such things about the other customers as well. A3 also admitted that in all four plots were booked by A2, but in four different names; for first two plots, A2 had given Rs 3 lakhs in advance; for other two plots, A2 had given Rs 1 lakh each as advance; in all A2 had given Rs 5 lakhs in advance. A3 also admitted that PW48 had handed over Rs 2 lakhs to him, saying that said money was sent by A2 for advance for two plots; PW48 used to report daily to A3 for the amounts received or whatever was done in the office in the absence of A3. A3 admitted that PW20 was Director of M/s U Turn Housing Private Limited and he (A3) was one of brokers of said company doing the property business in the name RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 23/107 CBI vs Yoginder Kumar etc of Dhingra Properties in Karkardooma Complex; even prior to 2006 A3 had done work of their some other projects. A3 clarified that PW20 had given written authorization Ex PW20/A (D13) dated 15/02/2006 to A3 after receiving letter to act as a broker. A3 admitted that PW20 had given letter Ex PW20/C (D14) dated 12/02/06 to CBI. A3 admitted that initially rate of Rs. 2000/ per Sq. Yd. was fixed as sale price of sale of Plots in Silver City project; later, from time to time such price was increased periodically; there was no fixed time period for A3 to sell plots; around hundred plus plots were sold by A3 in Dhingra in Silver City Project; bookings were done by A3 on their printed application forms; minimum booking amount was Rs 50,000/. A3 admitted that the application forms for booking in the name of A6, Mrs Neelam, A2 (part of Ex PW20/E collectively) and Rajinder Singh Gosai (Ex PW20/F2) were handed over to PW20 by him (A3) and in lieu of it PW20 issued the acknowledgment receipts of Rs 2 lakhs, Rs 1 lakh each in favour of A6, Mrs Neelam, Rakesh Kumar and Rajinder Singh Gosai respectively. A3 stated that neither he knew PW7 Raj Kumar nor had ever met him. A3 stated that he had no social acquaintance with PW14 and PW14 only knows him as a person doing property dealing in Trans Yamuna area. A3 stated that he had never given Rs. 810 lakhs to Devender Kumar Mann as advance for making member in Radha Ballabh Group Housing Society; he (A3) had no knowledge whether other persons had given such money or not and he (A3) had no knowledge whether PW14 had given money or not but he (A3) was RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 24/107 CBI vs Yoginder Kumar etc approached to verify the papers and as a property consultant had said that papers were not correct. A3 stated that he was called in the office of CBI where he handed over the papers of Radha Ballabh Group Housing Society to a CBI officer and it was the same papers which were shown to him by Devender Kumar Mann and asked by PW14 for verification and for which he (A3) gave his views that the papers were not correct. A3 admitted that search was conducted at his house and office from where documents were seized vide search cum seizure memo Ex PW45/A (D
94). A3 stated that report Ex PW61/C was incorrect and given without any examination whereas result of examination that the voices marked exhibits Q1 (44) (B) and Q1 (45) (B) were not the probable voices of him. A3 stated that he was appointed as a broker by M/s UTurn Housing Private Limited for receiving booking forms with advance token amounts towards booking from the buyers/purchasers of the plots launched in Silver City, Jaipur by M/s UTurn Housing Private Limited for Trans Yamuna area; his role was only to collect forms and advance payments and to hand over to the officials of the company, who used to come to his office/shop to collect the said forms and payments. A3 stated that he had no authorization and permission to verify the identity of the persons who used to hand over forms to him with their payments; anybody who used to come and to give that form and token money above Rs. 50,000/ was allowed to apply for the booking and there was no criteria fixed for receiving of other documents regarding identity or residence proof, etc; the receipts used to be issued by the company itself RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 25/107 CBI vs Yoginder Kumar etc and the company itself used to deal directly with the purchasers/buyers for the rest of formalities regarding papers, etc, if any. A3 stated that his shop/office was mere a collection centre of booking forms and token amounts and they used to work within the directions of M/s UTurn Housing Private Limited.
33. In his statement under Section 313 Cr.P.C, A4 stated that a case PE1/2005/EOUVIII was registered regarding five or six CGHS societies and Netaji Subhash Chandra Bose CGHS was registered and his statement was recorded by Inspector R.L Yadav PW46 in the said case. A4 stated that he had been falsely implicated in the aforesaid case as he had not committed any illegality and the said case was fabricated against him. A4 stated that the provisions of Section 5 (2) of the Indian Telegraph Act have not been properly followed in the present case. A4 stated that PW65 deposed falsely while he had never given any voice sample and Ex PW37/A and Ex PW37/B (both part of D24) were fabricated documents. A4 stated that PW16 Sh Rajeev Singhal never joined M/s National Architect and Engineers or M/s Rishabh Buildcon Pvt. Ltd but PW16 was merely an associate from the same premises from where these entities were operative. A4 stated that the statement of PW16 proved his innocence as PW16 admitted having signed Ex PW16/A [D60 (I)] himself and his (A4) signatures did not appear on either PW16/A or any related document. A4 stated that he never instructed PW16 to prepare Ex PW16/C [D60(III)] either as claimed or RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 26/107 CBI vs Yoginder Kumar etc otherwise; there was no reason for A4 to issue any such instructions as he had his own mobile number and did not need any new mobile number. A4 stated that in any event he did not use any Hutch connection number 9873173167. A4 stated that he had been named as an accused in the matter pertaining to MANAS PRYATASA CGHS. A4 admitted that PW12 Inspector R.P Sharma had recorded his statement in that case and the said case was falsely filed against him and he had not committed any illegality in that behalf. A4 stated that a raid was conducted at his residence on 24/04/2006. A4 denied of any raid conducted on the first floor but stated that the raid was conducted on the second floor which was his residence whereas he operated his office in the basement and nothing incriminating was found nor taken in custody by the team that conducted the raid. A4 stated that the mobile phone number 9873173167 was seized from the reception of the office in the basement as the office staff was using the same. A4 stated that PW71 gave false statement and Ex. PW 37/B was fabricated while no voice sample was given by him. A4 stated that transcript Ex PW71/L (colly) (D164) and report Ex PW61/C were a false and fabricated documents. A4 stated that as he had never given voice sample there was no question of any result of any examination being his probable voice. A4 stated that CD Ex Q1 and audio cassettes Exts SV1, SV2, SV3, SV4, SV5 and SV6 were fabricated and not admissible in evidence in the present case. A4 stated that the record revealed that no witness had deposed against him nor there any material on record either in the form of oral RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 27/107 CBI vs Yoginder Kumar etc testimony of any witness or any documentary evidence incriminating him. A4 stated that he had not committed any illegality.
34. In his statement under Section 313 Cr.P.C, A5 stated that the conversations, wherein voices as of 'YK' purported to A1 in transcript D164 pertaining to call nos. 4, 5, 15, 17, 22, 28, 29, 43 were not held; the transcript D164 was a fabricated document. A5 stated that case PE1/2005/EOUVIII was registered regarding five or six CGHS societies as well as Netaji Subhash Chandra Bose CGHS; his statement was recorded by Sh R.L Yadav in the said case and he had been falsely implicated in the said case as he had not committed any illegality and the said case was fabricated against him. A5 stated that neither his voice sample nor voice sample of Pradeep Kumar were taken and no procedure as alleged by PW60, PW68 was followed and PW60 falsely deposed at the behest of CBI. A5 stated that sample voice collection observation memorandums Ex PW38/A (part of D16), Ex PW38/B (part of D16), Ex. PW38/C (D15) were fabricated documents. A5 stated that the provisions of Section 5 (2) of the Indian Telegraph Act have not been properly followed in the present case. A5 stated that he did not knew whether PW21 Sh Surinder Singh Marwah had become member of Netaji Subhash Chandra Bose Cooperative Group Housing Society in 1989 through his brotherinlaw (Jija Ji) Sh. Satnam Singh; PW21 was a member of Netaji Subhash Chandra Bose Cooperative Group Housing Society but had subsequently resigned from the membership of the RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 28/107 CBI vs Yoginder Kumar etc society. A5 stated that he never visited the house of PW21 nor ever asked PW21 to give receipt of Rs 10,110/ and as per the records of Netaji Subhash Chandra Bose Cooperative Group Housing Society, PW21 had resigned from the said society as PW21 had taken membership of Sidharthkunj CGHS Limited, Sector7, Dwarka, New Delhi. A5 stated that PW21 had deposed falsely against him and no such incident occurred. A5 stated that he never visited the house of PW57 nor knew any Harish Kumar and PW57 had deposed falsely against him. A5 stated that no incident as on 6 th or 7th April 2006 in the evening, as alleged by PW14 ever took place and PW14 deposed falsely. A5 stated that report Ex PW61/C (part of D51) was a fabricated report which was prepared at the behest of CBI. A5 stated that the CD Ex Q1 and audio cassettes Exts SV1, SV2, SV3, SV4, SV5 and SV6 were fabricated and not admissible in evidence.
35. In his statement under Section 313 Cr.P.C, A6 stated that a false case was registered by CBI; calls in CD Ex Q1 did not pertain to him and were tampered and manipulated. A6 stated that orders Ex PW26/E (D30), Ex PW26/G1 (D32), Ex PW26/G2 (D33), Ex PW26/G3 (D34) and Ex PW26/G4 (D35) as well as certificate Ex PW26/H (D83) dated 26/10/2006 under Section 65B of Indian Evidence Act were fabricated. A6 stated that his sample voice was never taken; the Memorandum Ex. PW 35/A (D73/1) and other proceedings in this regard were fabricated. A6 stated that CD Ex Q1 did not contain his RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 29/107 CBI vs Yoginder Kumar etc voice and he had no concern with the case and he had no conversation with any of the accused persons. A6 stated that the documents and the memorandums were manipulated and fabricated to make out a false case; false and incorrect reports were managed from CFSL; false statements of witnesses were recorded. A6 stated that report Ex PW61/C was incorrect report based on fabricated material; no examination was done by PW61. A6 stated that he did not knew A1, A3, A4, A5, PW14 and Sh Pradeep Kumar. A6 stated that voice marked Ex Q1 (49) (C) was not his voice and Ex SV6 (A) was fabricated and not his sample voice. A6 stated that CD Ex Q1 and audio cassettes Exts SV1, SV2, SV3, SV4, SV5 and SV6 were fabricated; incorrect report Ex PW61/C was given by the expert PW61 without any examination. A6 stated that PW63 had deposed falsely and wrongly identified the signatures of Dr. Bibha Ray and Sh N.K Aggarwal. A6 stated that he had been falsely implicated in this case in connivance with senior officers of CBI on the basis of false and fabricated documents/articles and on the basis of inadmissible evidence.
DEFENCE EVIDENCE
36. Initially all accused persons except A1 denied to lead defence evidence but later A1 also denied to lead defence evidence.
RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 30/107 CBI vs Yoginder Kumar etc ARGUMENTS
37. I have heard the arguments of Sh P.K Dogra, Ld. Senior Public Prosecutor for CBI; Sh Anil Kumar, Ld. Counsel for A1, A2 and A6; Sh Kundan Mishra, Ld. Counsel for A3; Sh Samrat Nigam, Ld. Counsel for A4; Sh Monicinmoy, Ld. Counsel for A5; accused persons and have perused the record including the evidence led and given my thoughts to the rival contentions put forth.
38. Ld. Senior PP for CBI had argued that by the documentary evidence, recordings of the call conversations, transcripts of such call conversations and the deposition of prosecution witnesses, the prosecution has been able to prove that the arraigned accused persons entered into a criminal conspiracy with each other to obtain illegal gratification from different persons relating to CGHS cases and in pursuance thereof A1, being public servant as Inspector of CBI obtained or agreed to obtain or attempted to obtain the illegal gratification from the coaccused/interested persons relating to CGHS matter as a motive or reward for doing the official act for showing favour in CGHS cases in exercise of official function; A1 abetted A2 and A5 to accept or attempt to accept or agreed to accept illegal gratification by using illegal and corrupt means and personal influence from PW14 for himself; in pursuance thereof A1 himself or through coaccused in abuse of his official position obtained bribe; A2 accepted bribe from A4 through A 6 exercising personal influence through A1 for showing favour in RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 31/107 CBI vs Yoginder Kumar etc CGHS cases being investigated by A1. Also was argued that A2 abetted the commission of offences punishable under Section 7 and/or Section 11 of The Prevention of Corruption Act, 1988 by A1 by aiding him in accepting bribe from A3, A4, A5 and PW14. Also was argued that in furtherance of said conspiracy A5 attempted to obtain/aided in obtaining bribe from PW14 by inducing/exercising personal influence with A1 for showing favour in CGHS cases being investigated by A1; A5 abetted PW14 by way of inducement to give bribe to A1 or attempted to obtain bribe for himself and A1 and thus abetted the commission of the offence punishable under Section 7 and/or Section 11 of The Prevention of Corruption Act, 1988 by A1. Also was argued that in furtherance of criminal conspiracy A3, A4 and A6 abetted by aiding the commission of offence punishable under Section 7 and/or Section 11 of The Prevention of Corruption Act, 1988 by A1 by offering bribe/aiding and receiving of bribe for showing favour in CGHS cases being investigated by A1. Ld. Public Prosecutor for CBI has prayed for conviction of the arraigned accused persons accordingly relying upon the following precedents submitting that prosecution has proved its case beyond reasonable doubt:
(1) R.M Malkani vs State of Maharashtra, (1973) 1 SCC 471; (2) Gulzar Ali vs State of Himachal Pradesh, 1998 (2) SCC 192.
39. Ld. Counsel for A1, A2 and A6 argued that on the basis of evidence on record none of charges framed could be substantiated by RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 32/107 CBI vs Yoginder Kumar etc the prosecution even by degree of preponderance of probability as has been revealed by evidence though the charges were required to be proved by the prosecution beyond any reasonable doubt. Also was argued that the allegation of demand and acceptance of illegal gratification from PW14 could not be substantiated during the course of trial since his statement Ex PW14/B under Section 164 Cr.P.C was a statement of an accomplice and obtained under fear of arrest with promise to make him an approver in the case, being motivated cannot be relied upon nor is trustworthy as it even does not get any support from other prosecution witnesses namely PW6, PW8 and PW9; such version of PW14 is devoid of material particulars, instead embodies major improvements, major contradictions, severe infirmities and embellishments. Also was argued that the CD Ex Q1 containing alleged questioned conversations was not admissible but instead fabricated / tampered as even Hard Disc in which such conversation was originally recorded was neither seized nor sealed nor got examined from any expert; none of the voices in questioned CDs belonged to the accused persons A1, A2 and A6 nor any independent witness confirmed it; only police officers and approver PW14 had wrongly identified the voices; nobody knows how 51 questioned call conversations were segregated from thousands of calls and then burnt in the CD Ex Q1; certificate under Section 65 B of Indian Evidence Act was defective and even there is no mention in seizure memo of such certificate whereas PW26 was even not competent to issue such certificate; investigation RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 33/107 CBI vs Yoginder Kumar etc copy of the CD, recorded call information report, sample seals on separate paper as seals specimen were not produced; no independent witness was joined in segregation of calls; no evidence is on record as to how mobile phones were put on surveillance and how service providers were requested for such purposes. Also was argued that PW26 deposed that the calls were segregated after registration of FIR on 24/04/2006 but the different modified dates and time in various calls in CD Ex Q1 reflected to be before 24/04/2006 establish the falsehood of deposition of PW26 and prove tampering of CD Ex Q1. Also was argued that the then Secretary (Home), MHA who purportedly issued orders for surveillance was neither cited nor examined as prosecution witness and such MHA orders D30, D32 to D35 were fabricated documents. Also was argued that transcript D164 is an admissible piece of evidence since IO PW71 claimed to have himself identified the voices contained in questioned CD though he never worked with A1 nor met any other accused before this case nor was acquainted with the voices of any of the arraigned accused persons nor the transcript was prepared in presence of any independent witness, even approver nor it contained the date of its preparation, any signatures/initials of any person. Also was argued that the FIR finds no mention of the alleged CD and the questioned conversations. Also was argued that the alleged voices of Panwar, A3, A4, A5, A6 and other voices in CD Ex Q1 had not been identified by anyone. Also was argued that seized mobile phones were not sealed during investigation and there was every probability of tampering/manipulation and fabrication of data RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 34/107 CBI vs Yoginder Kumar etc therein. Also was argued that there was no evidence on record that (1) mobile phone number 9313671793 belonged to A2 or was used by A2; (2) phone number 06742542294 was ever used by A1; (3) phone numbers 01124362654, 24361839, 24360275, 24360276 were used by Panwar; (4) mobile phone number 9871771750 was ever used by Sh N.M Sehrawat, whereas PW55 testified that said mobile was obtained by him. Also was argued that call detail records of the mobile/landline phone numbers were not accompanied with requisite mandatory certificate under Section 65B of Indian Evidence Act casting doubt over their authenticity and genuineness. Also was argued that the voice expert report D51 was manipulated and a managed report. Also was argued that no test identification parade or identification of A2 in course of investigation was got organized. Also was argued that there was no cogent admissible evidence with regard to allegation of obtaining of Rs 3 lakhs by A6 from A4 at the asking of A2 on behalf of A1; even PW19 could not identify A2. Also was argued that A1 could not be linked to the matter of booking of plots; moreover booking of plots after paying the advance, in itself is no offence whatsoever. Also was argued that there was no evidence on record to establish the criminal conspiracy amongst arraigned accused persons nor was there any evidence to connect A6 with the offences charged. It was also argued that sanction Ex PW42/A was an invalid sanction granted without application of mind and accorded by PW42 who himself was examined by IO in this case and as a matter of propriety PW42 should have not dealt the aspect RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 35/107 CBI vs Yoginder Kumar etc of sanction. It was argued by Ld. Counsel for A1, A2 and A6 that prosecution has failed to prove its case against A1, A2 and A6 beyond reasonable doubt and relying upon the following precedents acquittal of A1, A2 and A6 is prayed for:
(1) Chonampara Chellappan vs State of Kerala, (1979) 4 SCC 312; (2) Ashok Kumar Aggarwal vs CBI & Anr., 2007 (98) DRJ 80 (DHC); (3) Dagdu & Ors vs State of Maharashtra, AIR 1977 SC 1579; (4) Bhiva Doulu Patil vs State of Maharashtra, AIR 1963 SC 599; (5) Suraj Mal vs The State (Delhi Administration), AIR 1979 SC 1408; (6) Vadivelu Thevar vs The State of Madras, 1957 AIR 614 SC; (7) Rampal Pithwa Rahidass and Ors. vs State of Maharashtra, 1994 Cri.L.J 2320 (SC); (8) P.V Narasimha Rao vs State through CBI, 97 (2002) DLT 452 (DHC);
(9) Dharambir vs CBI, 148 (2008) DLT 289;
(10) Mahabir Prasad Verma vs Dr. Surinder Kaur, 1982 AIR 1043 SC;
(11) Nilesh Dinkar Paradkar vs State of Maharashtra, JT 2011 (3) SC 429;
(12) People's Union for Civil Liberties (PUCL) vs Union of India & Anr., (1997) 1 SCC
301;
(13) Hukum Chand Shyam Lal vs Union of India & Ors, (1976) 2 SCC 128;
(14) Smt K.L.D Nagasree vs Govt. of India & Ors., AIR 2007 Andhra Pradesh 102;
(15) L.K Advani vs CBI, 1997 III AD Delhi 53, 1997 Cri.L.J 2559, 1997 (4) Crimes 1;
(16) Anvar P.V vs P.K Basheer & Ors., Civil Appeal No. 4226/2012, decided by Supreme
Court on 18/09/2014.
40. Ld. Counsel for A3 argued that A3 had no acquaintance with A1 and vise versa nor any call records suggest so nor is there is any proof of third party facilitation on record suggesting links between A3 and A1. Also was argued that A3 was not involved in the case investigated by A1 at any point of time; even in another cases where A 3 was investigated by other officers of CBI, A1 had nothing to do with those cases or their IOs. Also was argued that neither A1 had done any favour nor A1 could have done any favour nor A1 had nor A1 could have any favour done through other Inspectors of CBI. Also was argued RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 36/107 CBI vs Yoginder Kumar etc that A3 had never been a member or President or Secretary or any office bearer of any of the societies whatsoever any where and at any point of time in Delhi or any other place and no record suggest so. Also was argued that PWs 13, 23, 36 and 46 had given clean chit to A3 in the matters discussed/investigated by them. Also was argued that the prosecution has failed to prove of A3 having committed the offence of abetment by aiding A1 in any manner whatsoever in demand or receipt of bribe from any person including arraigned accused persons. Also was argued that the booking amount was flat Rs 50,000/ irrespective of sizes of plots which was acceptable and permissible by M/s U Turn Company and regarding booking amount whatever was done was under expressed permission from the company and the company duly issued receipts Ex PW20/E (colly), Ex PW20/F1 and Ex PW20/F2, so all the bookings were in the knowledge of PW20 and no concession at all was given to anyone as prices of plots were very low itself as is reflected in Ex PW20/DA. Also was argued that there was no record of any nature to reflect/prove that A3 paid any money from his own pocket. Also was argued that A3 was merely an agent for the company, never gave any concessions or booking or fixing of prices of the plots and his role was limited to receipt of application forms and advance money towards registration against commission of two and half per cent and money collected used to be given to the company through its Managing Director/agent against receipt issued later and it was the company who had to verify the details of the customers directly whereas A3 was RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 37/107 CBI vs Yoginder Kumar etc neither supposed nor authorized to verify the source of money given by customers and details of customers and his office was mere collection centre of forms with token amount. Also was argued that phone/mobile number of A3 could have been with anyone as he was in dealing in booking of properties and mere mention of the phone number of A3 in note pad Ex PW51/A (D95) no where proves complicity of A3 in commission of crime alleged or meeting of minds with arraigned co accused persons for commission of offences charged. Also was argued that A3 had no connection whatsoever with PW14, for which even PW14 stated so. Also was argued that A3 simply received application form in his office deposited by A2 with sum of Rs 5 lakhs for booking of plots and from said fact also no presumption can be raised for A3 acting in conspiracy with arraigned co accused persons for commission of offences charged. It has been argued that prosecution has failed to prove its case against A3 beyond reasonable doubt and relying upon the following precedents acquittal of A3 is prayed for:
(1) CBI vs V.C Shukla & Ors., 1998 Cri.L.J 1905 (SC); (2) Rajat Prasad vs CBI, (2014) 6 SCC 495;
(3) P.V Narasimha Rao vs State through CBI, 2002 Cri.L.J 2401 (DHC); (4) Mohd. Hussain Umar Kochra etc vs K.S Dalipsinghji & Anr etc, AIR 1970 SCC 45; (5) Pradeep Kumar Jain alias Babbe vs State of U.P & Anr., 2003 Cri.L.J 682 (Allahabad High Court);
(6) Suresh Chandra Das & Anr. vs State of Meghalaya, 1971 Cri.L.J 1232 (V 77 C 352).
41. Ld. Counsel for A4 argued that A4 is an Architect by profession and apart from call detail records of call numbers 36,46,48 and 49 there is no material on record to seek to incriminate or link A4 to RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 38/107 CBI vs Yoginder Kumar etc the commission of any offence charged since not a single witness of prosecution deposed against A4 much less identified his voice. Also was argued that the call detail records are inadmissible in evidence since they have be purportedly recorded in contravention of the provisions of Indian Telegraph Act 1885 and The Indian Evidence Act 1872. Also was argued that no voice sample of A4 was taken and only signatures of A 4 were obtained on blank sheets of papers during investigation which were fabricated. Also was argued that there was no explanation as to how and whose instance a total of 51 out of several recorded telephonic calls were chosen, transcribed and handed over for investigation/prosecution. Also was argued that though voice in call numbers 36, 46, 47, 48 and 49 is not of A4 but even for the sake of arguments the alleged recorded purported voice of A4 in the calls find no mention of words 'lakhs' or 'rupees' or 'money' and the allegation that A4 parted with sum of Rs 3 lakhs is merely a presumption having no legal basis. Also was argued that A4 is linked to have been using mobile number 9873173167, which as per PW16 was not in the name of A4 nor A4 had applied for said number nor Ex PW16/A, B and C bear any signatures or identity of A4 nor mobile phone having SIM number 9873173167 was recovered from A4 but said SIM number was found in the office of M/s Rishabh Buildcon Private Limited during the search conducted by CBI on 24/04/2006; A4 was not the user of said mobile phone connection. Also was argued that no requisite certificate under Section 65B of The Indian Evidence Act was obtained in respect of the RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 39/107 CBI vs Yoginder Kumar etc call detail records and the recorded call conversations which was fatal to the case of prosecution. Also was argued that there was no legally admissible evidence to link A4 to the commission of any offence charged and it has been prayed that A4 is entitled for acquittal since prosecution has failed to prove its case against A4 beyond reasonable doubt.
42. Ld. Counsel for A5 argued that none of the examined prosecution witnesses deposed of any demand and/or acceptance of Rs 10/8 lakhs of bribe by A1 from A5 nor any such fact is borne out of recorded conversations of call numbers 17, 28, 29 and 30. Also was argued that voice of A5 was not there in any of the alleged recorded telephonic conversations and even otherwise the alleged telephonic conversations were inadmissible in evidence since they were obtained in contravention of the settled provisions of The Indian Telegraph Act 1885 and The Indian Evidence Act 1872. Also was argued that not a single witness of prosecution had identified the voice of A5 in the recorded call conversations as no voice sample of A5 was taken/recorded, as claimed by prosecution; falsity of versions of PWs 38,58,60 and 68 is apparent from their varying depositions with regard to alleged collection of voice sample of A5. Also was argued that version of PW25 is contrary to version of his brother in law PW57 who even failed to identify A5. Also was argued that PW21 alleged that he was summoned by A1 vide notice Ex PW21/B under Section 160 Cr.P.C and as such RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 40/107 CBI vs Yoginder Kumar etc there was no question of any understanding, much less a tacit understanding, between A1 and A5; even otherwise there was reason for A5 to approach PW21 as PW21 had already become a member of Siddhartha Kunj CGHS in September 1993 and as such PW1 could not have become member of said society without resigning from the membership of the Netaji Subhash Chandra Bose CGHS Limited in terms of Delhi Cooperative Societies Act and Rules governing Cooperative Group Housing Societies. Also was argued that even PW14 admitted of A5 having no role to play in entire incident of alleged demand, payment and acceptance of the alleged bribe of Rs 1 lakh, as sought to be put forth by the prosecution. Also was argued that none amongst PWs 6, 8, 9 and 14 deposed anything to support the charge of abetment qua A5; PW14 even did not know A5, so for that reason PW14 failed to even identify A5. Also was argued that prosecution failed to prove that at the relevant time A5 was using mobile number 9810204873 nor said mobile or the SIM card of said number was ever recovered. Also was argued that nothing incriminating was recovered in the search conducted at office of A5 on 24/04/2006. Also was argued that since requisite certificates under Section 65B of The Indian Evidence Act were not obtained, in view of law laid in the case of Anvar PV (supra), it was fatal to the case of prosecution. Also was argued that none amongst examined prosecution witnesses deposed any fact regarding any conspiracy inter se A5 and other arraigned accused persons; there was no legally admissible evidence to link A5 to the RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 41/107 CBI vs Yoginder Kumar etc offences charged. It has been prayed that A5 is entitled for acquittal since prosecution has failed to prove its case against A5 beyond reasonable doubt.
43. In the case of Gulzar Ali (supra), relying upon the law laid in the case of Ram Chandra vs State of UP, AIR 1957 SC 381, Supreme Court held that in order to prove identity of handwriting of a person concerned in terms of the Section 67 of The Indian Evidence Act, any mode not forbidden by law can be resorted to and the expert evidence regarding handwriting is not the only mode by which genuineness of a document can be established.
44. In the case of Vadivelu Thevar (supra), Supreme Court held that "Hence, in our opinion, it is a sound and wellestablished rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
In the first category of proof, the court should have no difficulty in coming to its conclusion either way - it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial.
RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 42/107 CBI vs Yoginder Kumar etc There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses."
45. In the case of Suraj Mal (supra), it was held that mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. Mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe.
46. In the case of V.C Shukla & Ors. (supra), the Appeals arising out of 1997 Cri.L.J 2559 i.e., the case of L.K Advani (supra), it was interalia held by the Supreme Court that Section 10 of The Indian Evidence Act cannot be pressed into service for holding that conspiracy amongst all accused was proved when in the evidence one prosecution witness only indicated that one of the accused in question was known to other accused persons and had gone to their residence on formal occasions whereas the witnesses did not speak even a word about the other accused in question and mere entries in books of account did not suffice to show conspiracy amongst all accused persons as even correct and authentic entries in books of account cannot without independent RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 43/107 CBI vs Yoginder Kumar etc evidence of their trustworthiness, fix a liability upon a person.
47. In the case of Rajat Prasad (supra), it was interalia held that Mensrea or criminal intention of sting operator has to be proved by prosecution on the basis of surrounding facts established by material on record in a fullfledged trial.
48. To constitute a conspiracy, meeting of minds of two or more persons for doing an illegal act or an act by illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every detail of the conspiracy. Neither is it necessary that every one of the conspirators takes active part in the commission of each and every conspiratorial acts. The agreement amongst the conspirators can be inferred by necessary implication. In most of the cases, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. The existence of conspiracy and its objects are usually deduced from the circumstances of the case and the conduct of the accused involved in the conspiracy. Criminal conspiracy is an independent offence in the Penal Code. The unlawful agreement is sine qua non for constituting offence under the Penal Code and not an accomplishment. Conspiracy consists of the scheme or adjustment between two or more persons which may be express or implied or partly express or partly implied. Even Section 10 of the Evidence Act introduces the doctrine of agency and if the conditions laid down therein RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 44/107 CBI vs Yoginder Kumar etc are satisfied, the act done by one is admissible against the co conspirators.
49. In the case of Shivanarayan vs. State of Maharashtra, AIR 1980 Supreme Court 439, it was held that "It is manifest that a conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the same. The offence can be only proved largely from the inferences drawn from acts or illegal omission committed by the conspirators in pursuance of a common design."
50. While speaking for the Bench it is held by Hon'ble Mr. Justice P.Venkatarama Reddi in State (NCT of Delhi) vs. Navjot Sandhu, AIR 2005 SUPREME COURT 3820 as follows:
"We do not think that the theory of agency can be extended thus far, that is to say, to find all the conspirators guilty of the actual offences committed in execution of the common design even if such offences were ultimately committed by some of them, without the participation of others. We are of the view that those who committed the offences pursuant to the conspiracy by indulging in various overt acts will be individually liable for those offences in addition to being liable for criminal conspiracy; but, the non participant conspirators cannot be found guilty of the offence or offences committed by the other conspirators. There is hardly any scope for the application of the principle of agency in order to find the conspirators guilty of a substantive offence not committed by them. Criminal offences and punishments therefor are governed by the statute. The offender will be liable only if he comes within the plain terms of the penal statute. Criminal liability for an offence cannot be fastened by way of analogy or by extension of a common law principle."
RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 45/107 CBI vs Yoginder Kumar etc
51. In the case of State of Maharashtra and Others vs. Som Nath Thapa and Others, (1996) 4 SCC 659, it was held that "To establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that particular unlawful use was intended, so long as the goods or service in question could not be put to any lawful use. Finally, when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do, so long as it is known that the collaborator would put the goods or service to an unlawful use."
52. In the case of K.R. Purushothaman vs. State of Kerala, 2005 (4) Crimes 191 (SC), it was held by the Apex Court that to constitute a conspiracy, meeting of mind of two or more persons for doing an illegal act or an act by illegal means was primary condition and mere knowledge, even discussion, of plan by an accused would not per se constitute conspiracy. It was also held that although, the agreement among the conspirators can be inferred by necessary implication, the inference can only be drawn on the parameters in the manner of proved facts, in the nature of circumstantial evidence and whatever be the incriminating circumstance, it must be clearly established by reliable evidence and they must form the full chain whereby a conclusion about the guilt of the accused can be safely drawn.
RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 46/107 CBI vs Yoginder Kumar etc
53. In the case of Pradeep Kumar Jain alias Babbe (supra), it was held by Supreme Court that merely basing on the confessional statement of a coaccused and without there being any other evidence to support the charge, the accused even cannot be asked to face the trial.
54. In the case of Suresh Chandra Das (supra), it was held that there must be substantive and independent evidence connecting the accused with the offences charged and only thereafter the confession of a coaccused can be taken into consideration to aid in the appreciation of such substantive evidence.
TAPE RECORDED CONVERSATION
55. In the case of Dharambir (supra), it was interalia held that "(i) As long as nothing at all is written on to a hard disc and it is subjected to no change, it will be a mere electronic storage device like any other hardware of the computer. However, once a hard disc is subject to any change, then even if it is restored to the original position by reversing that change, the information concerning the two steps, viz., the change and its reversal will be stored in the subcutaneous memory of the hard disc and can be retrieved by using software designed for that purpose. Therefore, a hard disc that is once written upon or subjected to any change is itself an electronic record even if does not contain any accessible information at present. In addition there could be active information available on the hard disc which is accessible and convertible into other forms of data and transferable to other electronic devices. The active information would also constitute an electronic record.
(ii) Given the wide definition of the words 'document' and 'evidence' in the amended Section 3 the EA, read with Sections RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 47/107 CBI vs Yoginder Kumar etc 2 (o) and (t) IT Act, a Hard Disc which at any time has been subject to a change of any kind is an electronic record would therefore be a document within the meaning of Section 3 EA.
(iii) The further conclusion is that the hard disc in the instant cases are themselves documents because admittedly they have been subject to changes with their having been used for recording telephonic conversations and then again subject to a change by certain of those files being copied on to CDs. They are electronic records for both their latent and patent characteristics."
56. In the case of People's Union for Civil Liberties (supra), it was directed that an order for telephone tapping in terms of Section 5 (2) of Indian Telegraph Act, 1885 is to be issued by the authorities designated there and its copy is to be sent to the Review Committee concerned within one week of passing of such order; procedural safeguards were laid and the Review Committee within two months is to investigate whether there is a relevant order under Section 5 (2) of said Act and/or whether there has been any contravention of Section 5 (2) of said Act and in case of any such contravention of said provision the said committee will set aside said order under scrutiny and direct destruction of copies of intercepted material while in case of no contravention a finding to that effect shall be recorded by the Review Committee.
57. In the case of Hukum Chand Shyam Lal (supra), it was held that the appropriate authority has to form an opinion with regard to occurrence of a 'public emergency' with a view to take further action RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 48/107 CBI vs Yoginder Kumar etc under Section 5 (1) of Telegraph Act, 1885.
58. In the case of Smt K.L.D. Nagasree (supra), it was held that compliance with procedural safeguards provided Rule 419A of Telegraph Rules 1951, containing procedural safeguards in terms of pronouncement in case of People's Union for Civil Liberties (supra), was mandatory, particularly since violation of said provisions would result in infraction of right to privacy of an individual which is part of right guaranteed under Act 21 of Constitution; in event of non compliance, whatever information is obtained pursuant to that order cannot be taken into consideration for any purpose whatsoever.
59. In case of Dharambir Khattar vs. Union of India & Anr in W.P. (Crl) 1582/2007 it was held by Hon'ble Mr Justice Badar Durrez Ahmed on 21/11/2012 that "It is apparent that the Supreme Court categorically held that the question of admissibility of a tape recorded conversation illegally collected or obtained was no longer in issue in view of the decision in R.M. Malkani (supra), where the Supreme Court held that a contemporaneous tape record of a relevant conversation was a relevant fact and was admissible. The Supreme Court clearly held that the noncompliance or inadequate compliance with the provisions of the said Telegraph Act did not per se affect the admissibility.
45. Therefore, without going into the issue of whether there was noncompliance of the provisions of Section 5(2) or of Rule 419A, it is clear that even if there was, in fact, no RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 49/107 CBI vs Yoginder Kumar etc compliance, the evidence gathered thereupon would still be admissible.
"
60. So without going into the issue of whether there was non compliance of the provisions of Section 5(2) the Telegraph Act or of Rule 419A the Telegraph Rules, it is clear that even if there was, in fact, no compliance, the evidence gathered thereupon would still be admissible.
61. In R. M. Malkani (supra) Supreme Court laid down the essential conditions which, if fulfilled or satisfied, would make a tape recorded statement admissible otherwise not; and observed thus :
"Tape recorded conversation is admissible provided first the conversation is relevant to the matters in issue; secondly, there is identification of the voice; and, thirdly, the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the tape record."(Emphasis supplied)
62. In the case of R.M Malkani (supra), it was also held that the telephonic conversation of an innocent citizen will be protected by Courts against wrongful or high handed interference by tapping the conversation. The protection is not for the guilty citizen against the efforts of the police to vindicate the law and prevent corruption of public servants. It must not be understood that the Courts will tolerate safeguards for the protection of the citizen to the imperiled by permitting the police to proceed by unlawful or irregular methods.
RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 50/107 CBI vs Yoginder Kumar etc
63. In the case of Ram Singh vs. Col. Ram Singh, AIR 1986 SC 3 it was held that:
"A tape recorded statement is admissible in evidence subject to the following conditions:
(1) The voice of the speaker must be identified by the maker of the record or other persons recognising his voice. Where the maker is unable to identify the voice, strict proof will be required to determine whether or not it was the voice of the alleged speaker.
(2) The accuracy of the tape recorded statement must be proved by the maker of the record by satisfactory evidence direct or circumstantial.
(3) Possibility of tampering with or erasure of any part of the tape recorded statement must be totally excluded.
(4) The tape recorded statement must be relevant.
(5) The recorded cassette must be sealed and must be kept in safe of official custody.
(6) The voice of the particular speaker must be clearly audible and must not be lost or distorted by other sounds or disturbances."
64. In the case of Mahabir Prasad Verma (supra), it was held that tape recorded conversations can only be relied upon as corroborated evidence of conversation deposed by any of the parties to the conversation and in the absence of evidence of any such conversation, the tape recorded conversation is indeed no proper evidence and cannot be relied upon.
RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 51/107 CBI vs Yoginder Kumar etc
65. The conditions laid for admissibility of tape recorded statement in evidence in the cases of Ram Singh (supra) and Mahabir Prasad Verma (supra), found approval of the Supreme Court in the case Nilesh Dinkar Paradkar (supra).
66. In the case of Anvar P.V (supra), it was held by three Judges Bench of Supreme Court that any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A of said Act, can be proved only in accordance with the procedure prescribed under Section 65B of said Act; Section 65 B deals with the admissibility of the electronic record and the purpose of these provisions is to sanctify a secondary evidence in electronic form, generated by a computer. It was also held that electronic records are more susceptible to tampering, alteration, transposition, excision, etc., so without safeguards taken to ensure the source and authenticity, the whole trial based on proof of electronic records can lead to travesty of justice. Also was held that the Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65B of The Evidence Act are not complied with. Following are the four specified conditions under Section 65B (2) of the Evidence Act:
(i) the electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 52/107 CBI vs Yoginder Kumar etc activity regularly carried on over that period by the person having lawful control over the use of that computer; (ii) the information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity; (iii) during the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and (iv) the information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity. It was also held in aforesaid precedent that under Section 65B (4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied: (a) there must be a certificate which identifies the electronic record containing the statement; (b) the certificate must describe the manner in which the electronic record was produced; (c) the certificate must furnish the particulars of the device involved in the production of that record; (d) the certificate must deal with the applicable conditions mentioned under Section 65B (2) of the Evidence Act; and (e) the certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device. It was also held in aforesaid precedent that the evidence relating to electronic record, being a special provision, the general law on secondary evidence under Section 63 read with Section RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 53/107 CBI vs Yoginder Kumar etc 65 of The Indian Evidence Act shall yield to be same; Generalia specialibus non derogant, special law will always prevail over the general law. It was also held that Section 63 and 65 of The Indian Evidence Act have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65A and 65B of The Indian Evidence Act, so to that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by the Supreme Court in case of State (NCT of Delhi) vs. Navjot Sandhu alias Afsan Guru, (2005) 11 SCC 600 does not lay down the correct legal position, which requires to be overruled and was accordingly overruled. It was also held that an electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B of The Indian Evidence Act are satisfied. It was also held that in the case of CD, VCD, chip, etc., the same shall be accompanied with the certificate in terms of Section 65 B of The Indian Evidence Act obtained at the time of taking of document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.
67. PW26 Dy. SP CBI of Special Unit of CBI testified that the telephonic surveillance after taking approval of Union Home Secretary, under Section 5(2) of Indian Telegraph Act, 1885 was done through computer based system which automatically recorded intercepted calls of the telephone numbers under surveillance. PW26 deposed that in 2006 RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 54/107 CBI vs Yoginder Kumar etc certain telephones being used by Inspector N.M. Sehrawat and Inspector Yoginder Kumar (A1) of CBI were monitored by Special Unit, CBI New Delhi. PW26 narrated that on the request of CBI branch that a case was registered against A1 and others, so 51 relevant calls were given to the IO PW71, which calls were copied by PW26 from the voice recording system installed at Special Unit, CBI New Delhi in CD Ex Q 1; CD Ex Q1 with inlay card Ex PW26/B were sealed in a sealed cover, such sealed parcel and copy of CD Ex Q1, recorded call information report Ex PW26/C (D3) was given to IO PW71 which were seized vide seizure memo Ex PW26/A (D2) on 25/04/2006. Ex PW26/C (D3) embodies information that such telephone calls were in the period from 06/03/2006 9:08:34 AM to 13/04/2006 5:51:24 PM in between not two callers but several callers through several mobile/landline phone numbers detailed therein. Ex PW26/C (D3) also incorporates the names of the calling party, whether one or more persons, as well as the names of the called party. Ex PW26/C (D3) was prepared by PW26 on 25/04/2006 and bears said date and was delivered on said date by PW26 to PW71. No requisite certificate under Section 65 B of the Evidence Act embodying the prerequisites of subsections (2) and (4) of said Section was prepared nor enclosed with CD Ex Q1 or Ex PW26/C (D3) when these documents were so delivered on 25/04/2006 by PW26 to IO PW71. PW26 further deposed that he delivered certificate Ex PW26/H (D83) bearing his signatures with date 26/10/2006 purportedly under Section 65B of the Evidence Act, of course on 26/10/2006 or later to 26/10/2006 RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 55/107 CBI vs Yoginder Kumar etc but not before 26/10/2006. PW26 admitted that the Special Unit of CBI or even CBI was not a service provider with regards to mobile phones nor had any licence under Section 4 of Indian Telegraph Act. PW26 had not done any correspondence with Ministry of Home Affairs (MHA) for obtaining any of the orders Ex PW26/E (D30) dated 31/03/2006, Ex PW26/G1 (D32) dated 02/03/2006, Ex PW26/G2 (D33) dated 02/03/2006, Ex PW26/G3 (D34) dated 20/03/2006, Ex PW26/G4 (D
35) dated 29/03/2006, which orders do not bear any endorsement in favour of PW26 nor there is any endorsement of CBI officer. The investigating agency had not filed any document nor proved as to how aforesaid orders of MHA were procured. PW26 delivered orders Ex PW26/G1 (D32), Ex PW26/G2 (D33), Ex PW26/G3 (D34), Ex PW26/G4 (D35) to PW64 on 29/05/2006 which were seized vide seizure memo Ex PW26/F (D36). Aforesaid four orders were handed over by PW64 on 31/05/2006 to IO PW71 vide seizure memo Ex PW64/A (D31). PW26 was neither author nor had procured the orders Ex PW26/E (D30) dated 31/03/2006, Ex PW26/G1 (D32) dated 02/03/2006, Ex PW26/G2 (D33) dated 02/03/2006, Ex PW26/G3 (D
34) dated 20/03/2006, Ex PW26/G4 (D35) dated 29/03/2006 and neither the author of these orders has been cited as prosecution witness nor examined to prove these orders, so these orders stand not proved in accordance with law. The file of correspondence for procuring the orders Ex PW26/E (D30) dated 31/03/2006, Ex PW26/G1 (D32) dated 02/03/2006, Ex PW26/G2 (D33) dated 02/03/2006, Ex PW26/G3 (D RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 56/107 CBI vs Yoginder Kumar etc
34) dated 20/03/2006, Ex PW26/G4 (D35) dated 29/03/2006 has not seen the light of the day. PW26 claimed of having received written request from IO PW71 to hand over the records but neither such request was filed nor proved nor produced by PW26 on demand in his cross examination. PW26 did not prepare any memorandum or proceeding sheet in the course of burning of said 51 calls on the CD Ex Q1 as well as while preparing the call information report Ex PW26/C (D3) nor joined any independent witness in the proceedings nor sought any permission of the Court for such purposes. PW26 elicited that thousands of calls were recorded in the surveillance of the phones in question in the relevant period from 06/03/2006 to 13/04/2006 and he had heard all of those calls before burning of said calls on CD Ex Q1. PW26 stated that his seniors had orally briefed him facts of the case and on that basis he segregated the 51 calls in question as relevant calls. PW26 also stated that interception of the calls was done at the end of service provider of the respective phones and it were extended to CBI, which was recorded in their computer systems but PW26 was unable to elicit the number of service providers of such telephones under surveillance but these were several service providers. For aforesaid purposes of surveillance, communication was done with service providers of those phones by the officers of investigating agency. As per PW26, service providers were communicated of the orders of interception and were asked to intercept and provide parallel connectivity and forward each and every clandestine communication in respect of said intercepted telephone numbers to CBI.
RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 57/107 CBI vs Yoginder Kumar etc No such communication with any of the service provider has been placed on record nor proved as per law. No documentation was done in respect of thousands of calls intercepted on relevant phone numbers on surveillance. It finds mention in certificate Ex PW26/H (D83) that the entire process from original recording to copying on the compact disc (CD Ex Q1) is handled automatically by the computer system. Ex PW26/H (D83) of date 26/10/2006 embodies the description of two computer systems used for monitoring of telephones in question as (1) Desktop PC installed with Special Voice Logging Software supplied by M/s Secure Telecom Limited and (2) Desktop PC installed with Special Voice Logging Software supplied by M/s Precision Operation Systems (India) Limited. Several mobile/landline numbers i.e., 9313338444, 9891438553, 9810027257, 9891252665, 01122757151, 9818954778, 9871771750, 9873407171, 9811072697, 01141516339, 9868030030, 9811893451, 9830147574 and 9899217577 of several service providers were under surveillance whose call recordings were done with the aid of Special Voice Logging Software in aforesaid two Desktop PCs of Special Unit of CBI in the period from 06/03/2006 to 13/04/2006. From amongst recordings of thousands of call conversations in aforesaid two computer systems, in all 51 calls were selected by PW26 and burnt in CD Ex Q1 after not selecting remaining thousands of call conversations whereas as per PW26, the telephonic surveillance was done through a computer based system, which automatically recorded intercepted calls of the telephone numbers under surveillance without RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 58/107 CBI vs Yoginder Kumar etc human intervention. Falsity in respect of version of process of copying on CD Ex Q1 handled automatically by the computer system(s) as mentioned in Ex PW26/H (D83) is writ large on face of record as it is beyond comprehension as to how from two different computer systems the 51 call conversation recordings from amongst thousands of call conversation recordings, transmitted by several service providers, could be segregated without aid of any specified software and burnt in CD Ex Q1, without any human intervention. Such selection of 51 calls of CD Ex Q1 and their burning in CD Ex Q1 were acts of human intervention on the part of PW26. CD Ex Q1 was a secondary evidence in electronic form, generated by the computer whose primary sources were the aforesaid two Desktop computers of Special Unit, CBI New Delhi. When CD Ex Q1 was delivered on 25/04/2006 in sealed cover by PW26 to IO PW71 vide seizure memo Ex PW26/A (D2), the same was not accompanied with requisite certificate in terms of Section 65B of the Evidence Act, without which the secondary evidence pertaining to that electronic record in CD Ex Q1 is inadmissible in evidence in terms of law laid in the case of Anvar P.V (supra). Certificate Ex PW26/H (D83) dated 26/10/2006 given later by PW26 will not cure the inherent defect crept in the prosecution case in respect of the secondary evidence in CD Ex Q1. Even certificate Ex PW26/H (D83) finds no mention of the information contained in CD Ex Q1 to be a reproduction of the information fed into the computer in the ordinary course of said activity.
RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 59/107 CBI vs Yoginder Kumar etc
68. In the course of deposition of PW25 when CD Ex Q1 was displayed it was observed that the following call numbers were having the following display in the column of date modified:
S. Call As per Report On Display of CD File No.
No No. Ex PW26/C (D3) Ex Q1 on 16/04/2013
Call Date Call Time Date Time
Modified
1. 6 24/03/2006 11:25:57 AM 19/04/2006 21:52 060324112557
2. 7 24/03/2006 05:53:58 PM 19/04/2006 21:53 060324175358
3. 14 01/04/2006 08:49:34 PM 19/04/2006 22:02 060401204934
4. 18 03/04/2006 08:03:41 PM 19/04/2006 22:07 060403200341
5. 23 03/04/2006 09:45:37 PM 19/04/2006 22:13 060403214537
6. 24 04/04/2006 10:23:31 AM 19/04/2006 22:14 060404102331
7. 26 04/04/2006 12:08:28 PM 19/04/2006 22:17 060404120828
8. 31 05/04/2006 01:52:52 PM 15/04/2006 18:14 060405135252
9. 32 05/04/2006 03:07:07 PM 19/04/2006 22:20 060405150707
10. 33 05/04/2006 03:26:05 PM 19/04/2006 22:21 060405152605
11. 35 05/04/2006 06:33:28 PM 19/04/2006 22:22 060405183328
12. 37 05/04/2006 06:39:33 PM 19/04/2006 22:23 060405183933
13. 38 05/04/2006 06:41:51 PM 19/04/2006 22:23 060405184151
14. 39 05/04/2006 06:48:40 PM 19/04/2006 22:24 060405184840
15. 42 06/04/2006 10:38:54 AM 19/04/2006 22:27 060406103854
16. 46 06/04/2006 01:49:35 PM 15/04/2006 18:19 060406134935
17. 48 06/04/2006 02:08:24 PM 19/04/2006 22:29 060406140824
69. In the course of deposition of PW33 when CD Ex Q1 was displayed it was further observed that the following call numbers were having the following display in the column of date modified:
RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 60/107 CBI vs Yoginder Kumar etc S. Call As per Report On Display of CD File No. No No. Ex PW26/C (D3) Ex Q1 on 21/12/2012 Call Date Call Time Date Time Modified
1. 1 06/03/2006 09:08:34 AM 06/03/2006 10:02 060306090834
2. 2 07/03/2006 10:39:14 AM 07/03/2006 11:27 060307103914
3. 3 07/03/2006 10:57:39 AM 07/03/2006 13:57 060307105739
4. 4 22/03/2006 08:17:58 AM 19/04/2006 21:48 060322081758
5. 5 24/03/2006 07:35:17 AM 19/04/2006 21:50 060324073517
6. 8 31/03/2006 10:19:26 AM 19/04/2006 21:56 060331101926
7. 9 31/03/2006 11:22:54 AM 19/04/2006 21:57 060331112254
8. 10 31/03/2006 11:54:16 AM 19/04/2006 21:58 060331115416
9. 11 31/03/2006 04:20:34 PM 19/04/2006 21:59 060331162034
10. 12 01/04/2006 07:24:20 PM 19/04/2006 22:00 060401192420
11. 13 01/04/2006 07:26:22 PM 19/04/2006 22:01 060401192622
12. 15 03/04/2006 05:20:59 PM 19/04/2006 22:03 060403172059
13. 17 03/04/2006 07:57:05 PM 15/04/2006 18:08 060403195705
14. 19 03/04/2006 08:38:32 PM 19/04/2006 22:08 060403203832
15. 20 03/04/2006 08:39:53 PM 19/04/2006 22:09 060403203953
16. 21 03/04/2006 09:13:27 PM 19/04/2006 22:10 060403211327
17. 22 03/04/2006 09:27:23 PM 19/04/2006 22:11 060403212723
18. 25 04/04/2006 11:19:59 AM 19/04/2006 22:16 060404111959
19. 27 04/04/2006 12:29:43 PM 19/04/2006 22:17 060404122943
20. 28 04/04/2006 08:05:47 PM 15/04/2006 18:10 060404200547
21. 29 05/04/2006 11:03:42 AM 15/04/2006 18:12 060405110342
22. 34 05/04/2006 05:22:44 PM 19/04/2006 22:22 060405172244
23. 36 05/04/2006 06:35:04 PM 15/04/2006 18:16 060405183504
24. 40 06/04/2006 08:37:17 AM 19/04/2006 22:25 060406083717
25. 43 06/04/2006 11:18:37 AM 19/04/2006 22:28 060406111837
26. 44 06/04/2006 01:40:49 PM 15/04/2006 18:17 060406134049 RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 61/107 CBI vs Yoginder Kumar etc
27. 45 06/04/2006 01:44:36 PM 15/04/2006 18:18 060406134436
28. 47 06/04/2006 02:01:13 PM 15/04/2006 18:20 060406140113
29. 49 06/04/2006 03:33:13 PM 19/04/2006 22:30 060406153313
30. 50 13/04/2006 04:49:40 PM 17/04/2006 15:19 060413164940
31. 51 13/04/2006 05:51:24 PM 15/04/2006 18:23 060413175124
70. Accordingly, there exists difference/variance in respect of time of modification of audio files in CD Ex. Q1 from the time of receipt of said calls, elicited in tables hereinabove. CD Ex Q1 was displayed in the course of final arguments on 31/10/2014 in the presence of Ld. Senior PP for CBI, Ld. Counsels for arraigned accused and accused persons and it was observed by all aforesaid and myself that (1) dialogue 'Haan Haan Woh Usme Martend Mein Bhi Thaa' attributed to A5 in transcription Ex PW71/L (colly) (D164) of call number 5 did not appear to be similar to other voices attributed to A5 but instead appeared to be similar to voices attributed to A1; (2) dialogue 'Theek Hai - C194, Vikas Puri' attributed to A2 in transcription Ex PW71/L (colly) (D164) of call number 31 did not appear to be similar to other voices attributed to A2 but instead appeared to be similar to voices attributed to A1; (3) dialogue 'Panch Minute Lagenge Red Light Par' attributed to A1 in transcription Ex PW71/L (colly) (D164) of call number 39 did not appear to be similar to other voices attributed to A1 but instead appeared to be similar to voices attributed to A2; (4) dialogue 'Ussey Kaho Accused Hai Toh Aap Karyawahi Karo Agar RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 62/107 CBI vs Yoginder Kumar etc Accused Nahi Witness Hai Toh Aap Bulatey Hoe Baar Baar Dubaara Bulayega Toh Dekhna Jara' attributed to A1 in transcription Ex PW71/L (colly) (D164) of call number 18 did not appear to be similar to other voices attributed to A1 but instead appeared to be similar to voices attributed to A2; (5) dialogue 'Yaar, Mere Ko Bata Do Kaun Saa RC No. Hai, Uss Bandey Kaa Naam Kya Hai?' attributed to A2 in transcription Ex PW71/L (colly) (D164) of call number 18 did not appear to be similar to other voices attributed to A2 but instead appeared to be similar to voices attributed to A1; (6) dialogue 'Wo Dey Diye Kya Usne Usko Paise Advance?' attributed to A1 in transcription Ex PW71/L (colly) (D164) of call number 18 did not appear to be similar to other voices attributed to A1 but instead appeared to be similar to voices attributed to A2; (7) dialogue 'Haa Sir 9891 Ek Minute Sir 9891438553, 9891438553 Theek Hai Iss Par Kar' attributed solely to A1 in transcription Ex PW71/L (colly) (D164) of call number 19 but per se appears to be mixture of two different voices; (8) dialogue 'Phone Par Kal Bata Dunga Aapne Rana Ka Naam Liya Toh Ek Baat Aur Yaad Aa Gayi Yeh Apne Joe Sanjeev Gupta Hai Jo Mukar Raha Tha Yeh Rana Se Membership Leta Rehata Hai, Deta Rehata Hai Apne Naam Se' attributed to A1 in transcription Ex PW71/L (colly) (D164) of call number 22 did not appear to be similar to other voices attributed to A1 but instead appeared to be similar to voices attributed to A5; (9) dialogue 'Kehata Hai Nahi Black Label Mere Bus Ki Nahi' attributed to A1 in transcription Ex PW71/L (colly) (D164) of call number 23 at page RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 63/107 CBI vs Yoginder Kumar etc number 76 did not appear to be similar to other voices attributed to A1 but instead appeared to be similar to voices attributed to A2; (10) Last portion of dialogues in call number 47 in transcription Ex PW71/L (colly) (D164) attributed to A1 and A4 are appearing to be similar to voices attributed to A4 and A1 respectively i.e., apparently the dialogues have been swapped in the transcript and dialogues of voices similar to A4 are attributed to A1 and dialogues of voices similar to A 1 are attributed to A4. IO PW71 stated that he prepared transcript Ex PW71/L (colly) (D164) in the period from May 2006 to August 2006 with assistance of the stenographer, Inspectors PW50 and PW51 whereas he (PW71) himself identified voices of different persons in the dialogues recorded despite the fact of being not previously conversant with any of such voices in the recordings contained in Ex Q1 and even no persons, including any prosecution witnesses, approver, previously conversant with such voices or having heard such voices earlier had assisted him in identification of voices of different persons in the dialogues recorded at the time of preparation of transcript Ex PW71/L (colly) (D164). Such identification of voices of different persons in the dialogues recorded at the time of preparation of transcript Ex PW71/L (colly) (D164) by PW71 is beyond comprehension and logical reasoning and appears to be farce. When any call is recorded in hard disk of computer, a distinct file number is created and if there is any interpolation in that file / call, a separate file is created and on examination of hard disk this interpolation can be ascertained but if the interpolated call is transferred in CD and RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 64/107 CBI vs Yoginder Kumar etc only the CD is examined, such interpolation cannot be ascertained. The original hard disk of the computer system of Special Unit of CBI was neither seized in the course of investigation nor sent for forensic opinion of expert to vouchsafe for authenticity and ruling out possibility of tampering or erasure of any part of the recorded call conversation of the 51 calls detailed in Ex PW26/C (D3) as they were recorded in the CD Ex Q1 by examination of its data. There was no impediment for the concerned officers of CBI for sending the said original hard disk of computer system of Special Unit of CBI for forensic opinion of the expert to rule out manipulations, tampering or erasure of part or whole of the recorded call conversations in it or in the CD Ex Q1, the stated copy of such data. Per contra, the difference/variance in respect of time of modification of audio files in CD Ex. Q1 from the time of receipt of said calls; voices attributed to persons per se appearing similar to voices attributed to others, elicited hereinabove, prove the manipulations, tampering or erasure of part or whole of the recorded call conversations in CD Ex Q1, on the face of the record and put a question mark over the report Ex PW61/C of PW61, the then Principal Scientific Officer and stated forensic voice examination report, who opined that as per auditory examination of questioned voices in CD Ex Q1, those were similar to specimen voices of A1, A3, A4, A5, A6, PW14 and Pradeep Kumar and even PW61 admitted of (1) having no diploma or degree in voice examination; (2) report Ex PW61/C having no mention of auditory, phonetic, linguistic features of questioned and specimen voices in detail RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 65/107 CBI vs Yoginder Kumar etc and (3) their laboratory being under administrative control of CBI. Inadmissible secondary evidence in form of CD Ex Q1 containing manipulated/tampered/doctored recordings cannot be made basis for conviction of any of the arraigned accused persons accordingly.
71. PW2 deposed that vide letter Ex PW2/D (D117) dated 06/09/06 he had interalia furnished to SP CBI the call detail records Ex. PW2/E (D118) in respect of mobile phone number 9891438553 from 24/03/06 to 13/04/06; as per customer application form Ex PW2/B (D 40/1), said mobile phone number 9891438553 was in the name of Shri Parveen Kumar. In the course of his deposition on 30/04/2012 before my Ld. Predecessor, PW2 also furnished certificate u/s 65 B Evidence Act Ex.PW2/F dated 28/04/12. Said certificate find no mention of the computer containing such records was in regular use or information was regularly fed into the computer in ordinary course of said activity or during material part of said period the said computer was operating properly to vouchsafe for accuracy of its contents nor it mentions the description/particulars of the device involved, the manner in which the electronic record was produced. Said certificate is not in consonance with the prerequisites of Section 65B (2) and (4) of the Evidence Act, elicited in detail herein above nor the such certificate was obtained at the time of taking of call detail records Ex PW2/E (D118) and accordingly in view of the law laid in the case of Anvar P.V (supra) such call detail records Ex PW2/E (D118), the secondary evidence RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 66/107 CBI vs Yoginder Kumar etc pertaining to the electronic record are inadmissible.
72. In respect of other call detail records placed on record i.e., (1) Ex PW76/D (D71/2) of phone number 25643030 in the name of Devinder Kumar in the period from 01/03/2006 to 30/04/2006; (2) Mark P74/1 (colly) (D28) of phone number 06742542294 in the period from 01/02/2006 to 31/03/2006; (3) Ex PW73/B (colly) (D132) of phone number 9313671793 in the name of Sh Narender Rana in the period from 20/03/2006 to 13/04/2006; (4) Ex PW73/C (colly) (D133) of phone number 9350050944 in the name of Atlanta Systems Private Limited in the period from 20/03/2006 to 24/04/2006; (5) Ex PW73/D (colly) (D
134) of phone number 9312220904 in the name of PW14 Sh Girdhari Lal Chawla in the period from 20/03/2006 to 24/04/2006; (6) Ex PW2/E (D118) of phone number 9891438553 in the name of PW11 Sh Praveen Kumar in the period from 24/03/2006 to 13/04/2006; (7) Mark D (D
147) of phone number 9313671793 in the name of Sh Narender Rana in the period from 14/03/2006 to 13/04/2006; (8) Ex PW27/C (colly) (D
145) of phone number 9868030030 in the name of A1 in the period from 01/03/2006 to 18/04/2006; (9) part of Ex PW30/A (colly) (D140) of phone number 9810204873 in the name of A5 in the period from 01/03/2006 to 30/04/2006; (10) part of Ex PW30/A (colly) (D141) of phone number 9810205111 in the name of A3 in the period from 01/03/2006 to 30/04/2006; (11) part of Ex PW30/A (colly) (D142) of phone number 9810582387 in the name of Sh Jiyauddin in the period RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 67/107 CBI vs Yoginder Kumar etc from 01/03/2006 to 30/04/2006; (12) Mark P30/3 (D157) of phone number 9871771750 in the name of PW55 Sh Sanjiv Kumar Sharma in the period from 01/03/2006 to 30/04/2006; (13) part of Ex PW28/A (colly) (D138) of phone number 9811893451 in the name of PW31 Mohd Aqil in the period from 01/03/2006 to 30/04/2006;(14) part of file Ex PW5/B (D61 and M674/06) of phone number 9899692214 in the name of PW19 Sh Pradeep Kumar in the period from 01/03/2006 to 30/04/2006; (15) Ex PW59/E (D78) of phone number 01204313390 in the name of A2 in the period from 04/03/2006 to 30/04/2006; (16) Ex PW59/F (D79) of phone number 01204313390 in the name of A2 in the period from 25/02/2006 to 28/04/2006; (17) part of Mark P74/1 (colly) (Annexure I of D28) of phone number 06742542294 in the period from 01/02/2006 to 31/03/2006; (18) Mark P30/3 (D157) of phone number 9871771750 in the name of Sh Sanjiv Kumar Sharma in the period from 01/03/2006 to 30/04/2006; (19) Ex PW2/E (D118) of phone number 9891438553 in the name of Praveen Kumar in the period from 24/03/2006 to 13/04/2006; no certificates under Section 65B of the Evidence Act embodying the prerequisits as laid in subsections (2) and (4) of the said Section have been obtained at the time of taking such call detail records nor proved to vouchsafe about the accuracy, genuineness of the prints out also to ensure the source and authenticity of such call detail records, the secondary evidence pertaining to the electronic records and for want of these requisite certificates under Section 65B of the Evidence Act, aforesaid call detail records are inadmissible in RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 68/107 CBI vs Yoginder Kumar etc evidence in terms of law laid in the case of Anvar P.V (supra).
73. It has already been held that aforesaid call detail records as well as the recorded call conversations in CD Ex Q1, the secondary evidences are inadmissible in evidence for reasons elicited herein above. Since the foundation is shaken, there is no point in discussing the evidence of those who produced the Call Detail Records (CDRs) or documents relating to the telephones i.e., landline/mobile phone numbers or the portions of the evidence relating to recorded call conversations in CD Ex Q1, taking of voice samples, identification of voices in recorded call conversations in CD Ex Q1 in the deposition of witnesses including PWs 2, 3, 4, 5, 11, 15, 16, 17, 18, 22, 25, 27, 28, 29, 30, 31, 32, 33, 35, 37, 38, 40, 41, 43, 47, 54, 55, 56, 58, 59, 60, 62, 65, 66, 68, 69, 70, 72, 73, 74, 75 and 76.
74. PW42 deposed that as Deputy Inspector General of Police, CBI, he had powers for removal of officers up to the rank of Inspectors of CBI from service. PW2 further stated that after perusal of documents, statements, the transcripts, SP's Report and discussions with Investigating Officer of the case he had accorded the sanction vide order Ex PW42/A under Section 19 of The Prevention of Corruption Act, 1988 for prosecution of A1 in this case for the offences detailed therein.
75. PW7 deposed that A1 was his cousin being son of sister of RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 69/107 CBI vs Yoginder Kumar etc his mother. PW7 stated that he had never purchased any plot or house in Delhi or anywhere else nor he knew any person namely Jagdish Dhingra (A3) nor had ever met him nor had ever booked any plot through any such person. PW7 further elicited that he and his elder brother Sh Sushil were employed in factory and Sh Ghanshyam Dass was their employer. PW7 testified that he had no knowledge whether his brother Sh Sushil or employer Sh Ghanshyam Dass had booked any plot in his name.
76. PW12 as Inspector in CBI conducted two preliminary enquiries in respect of cases of various cooperative group housing societies and submitted final report recommending registration of regular case in all aforesaid societies. In November/December 2005 initially PW12 received a telephone call on his office landline phone from A2 who later came, enquired and found no notice issued by PW12 to him. As per PW12, A2 was not involved in investigation of cases of societies done by him.
77. PW13 deposed that A1 was his batchmate, used to meet him and was knowing about the matter he was investigating and conducting preliminary enquiry in respect of cooperative group housing societies.
78. PW19, a camera man in CNBC, Noida, UP deposed that A1 was his cousin and used to meet him being relative. As per PW19, on RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 70/107 CBI vs Yoginder Kumar etc 15/03/2006 at 3 pm he received call on his mobile phone from A1 pursuant to which a person namely Bisht called him at 3 pm or 3.30 pm on his mobile phone and thereafter PW19 went outside his office, called back on mobile phone of said Bisht and then met said Bisht who was seated in the Santro car and from said Bisht received a mobile phone and one or two bundles of currency notes of denomination of Rs 500/ which were either Rs 50,000/ or Rs 1,00,000/ and said money and mobile phone later in the evening at 7pm from residence of PW19 were obtained by A1 saying that he had given said money on loan to Bisht, which was returned by Bisht to him. On resiling of PW19, he was cross examined at length by Ld. PP for CBI but did not support the case of prosecution. PW19 stated that either amongst A2 and A4 standing in the dock, was said Bisht but could not point out who exactly was said Bisht.
79. PW22, Inspector in CBI deposed that A2 used to visit Control Room of CBI frequently for about 1520 times within a period of six months i.e., from JulyAugust 2005 to March 2006 and he was knowing A2 as a mobile phone dealer from whom PW22 had purchased one mobile phone for himself and others also purchased after making payment since A2 used to supply mobile phones on concessions upto 25%. As per PW22, A2 sought help from him with regard to his matrimonial acrimony but no help was provided by PW22 in that context. PW22 stated that in the end of year 2005 A2 enquired from him whether PW22 was knowing Inspector Lohmor of CBI dealing with RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 71/107 CBI vs Yoginder Kumar etc CGHS scam cases since one of his relative was being called for alleged involvement in some matter and on enquiries PW22 came to know that said relative of A2 was main culprit in the case with said Inspector Lohmor and was not cooperating in investigation, so PW22 told A2 to ask his relative to cooperate in investigation. As per PW22, though A2 enquired about which official of CBI was looking after which CGHS scam case but PW22 used to deny to give any such information to A2 whereas A2 used to boast that he was knowing several senior police officers in Delhi Police as well as in CBI.
80. PW23 deposed that during 2005 when he was Inquiry Officer as Inspector CBI in PE1/2005 registered against seven cooperative group housing societies, A1 assisted him in said inquiry and said inquiry was concluded in November/December 2005 and five CGHS criminal cases were registered, out of which RC 8/2005 against Netaji Subhash Chandra Bose CGHS was assigned to A1 for investigation and RC 7/2005 against EPDP Radhey Kunj CGHS was assigned to Inspector N.M Sehrawat for investigation. As per PW23, RC 8/2005 was registered against A4 and other officer bearers of said society as accused and the role of PW14 and A3 did not figure during preliminary inquiry conducted by him.
81. PW23 claimed to have seen A1 writing and signing during course of his duties and identified (1) writings and signatures of A1 RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 72/107 CBI vs Yoginder Kumar etc accordingly in Ex PW23/A (D21) i.e., copy of notice under Section 160 Cr.P.C dated 20/03/2006 for the presence of PW14 for 29/03/2006, which date having been cut and again date written as 04/04/2006; (2) writing of A1 in the entry Ex PW23/B [in D26 (ii)] which is at S. No. 7 at page no. 12 of arrival dated 08/01/2006 in Room Rent Collection Register of inspection quarter of GMTD, Bhubaneswar w.e.f. 01/01/2006 onwards; (3) writing of A1 in the entry Ex PW23/C [in D26 (ii)] which is at S. No. 3 at page no. 56 of arrival date 02/02/2006 in Room Rent Collection Register of inspection quarter of GMTD, Bhubaneswar w.e.f. 01/01/2006 onwards; (4) writing of A1 in the entry Ex PW23/D [in D 26 (ii)] which is at S. No. 6 at page no. 910 of arrival date 05/03/2006 in Room Rent Collection Register of inspection quarter of GMTD, Bhubaneswar w.e.f. 01/01/2006 onwards; (5) writing encircled Q5 at page numbered as D95 to be writing of A1 in writing pad Ex PW23/E (D97) titled Neeraj writing pad; (6) writing in piece of paper Ex PW23/F (D89) bearing colour television owner's manual containing several telephone number hand written in blue ink, encircled from Q1 to Q4, to be writing of A1; (7) writings in the Casual Leave Applications Ex PW23/G1 to Ex PW23/G9 (D122 to D130) having text encircled as A1 to A9 to be in the writing of A1. PW33 deposed that in year 2005 he was Additional SP in CBI and since A1 worked under him, he identified the writings/signatures of A1 in aforesaid documents Ex. PW 23/A; Ex. PW 21/B (D18) and 9 Casual Leave applications Ex PW23/G 1 to Ex PW23/G9 (D122 to D130); Ex PW24/B [D26 (II)]; as well as RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 73/107 CBI vs Yoginder Kumar etc writings Ex. PW23/B; Ex. PW23/C; Ex. PW23/D; Ex PW23/E. PW53 deposed that as Sub Inspector in CBI EOUVIII he used to sit in same room where A1 used to sit in the office and identified the writings/ signatures of A1 in aforesaid document Ex PW23/A, application form Ex PW15/A (colly) (D50) to MTNL for Trump Prepaid mobile connection and the aforesaid writings Ex PW23/B, Ex PW23/C and Ex PW23/D. Aforesaid Ex PW23/A (D21) was handed over to IO PW71 on 04/05/2006 in presence of PW39, Junior Manager (Personnel) at Steel Authority of India vide seizure memo Ex PW39/A (D20).
82. PW24, Senior Sub Divisional Engineer in office of GMTD, Bhubaneswar deposed that he had given the certified copies of IQ Register, part of Ex PW24/A (colly) (D25) along with the original IQ Room Rent Collection Register Ex PW24/B [D26 (ii)] to Dy SP PW70 which were seized vide seizure/production memo, part of Ex PW24/A (colly) (D25) dated 16/05/2006.
83. PW25 deposed that A1 was his batch mate. As per PW25, in JanuaryFebruary 2006, he received a telephone call on his intercom, when he was posted in SICII Branch of CBI New Delhi and then the caller introduced himself as Rakesh Bisht (A2), a mobile phone dealer. PW25 further stated that once in the branch A2 came to him and asked him whether he wanted to have a mobile phone, to which PW25 refused. PW25 stated that he had seen A2 several times near the control room, RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 74/107 CBI vs Yoginder Kumar etc canteen in the CBI office and few days prior to Holi, in March 2006, A2 and A1 met him (PW25) outside the building. PW25 stated that A2 told him that he (A2) was knowing several officials of CBI, Defence and during said period, there was retirement of fatherinlaw of Sh. Kerketta, their Deputy SP and Sh. Kerketta needed some liquor for party of such purpose. PW25 stated that he had told A2 about the said need of Sh. Kerketta, upon which A2 made arrangements of liquor for Sh. Kerketta for which A2 received the price of liquor. PW25 stated that in April 2006 he had not got any plot booked any where in his name and receipt Mark P25/1 (D99) of Rs. 1,00,000/ dated 05/04/06 with UTurn Housing Pvt. Ltd. in the name of Rajinder Singh Gosai, R Block, Dilshad Colony, Delhi95 did not belong to him (PW25) and PW25 had not made such payment nor had booked such property whereas PW25 was then residing at B107/S4, Dilshad Colony, Delhi.
84. PW34, Bell Boy in Ashoka Hotel deposed that on 24/06/2006, he accompanied the CBI team members to Ram Vihar located at Trans Yamuna, Delhi where the CBI team conducted search of a portion of a premises located at first floor, belonging to A4 and seized the articles detailed in prepared search list Ex. PW34/A (D116) dated 24/04/2006 in his presence.
85. PW49, the then Inspector CBI deposed that on 24/04/2006 he had conducted the search at the residence of A2 which was near RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 75/107 CBI vs Yoginder Kumar etc Mother Dairy in ABlock, Noida, UP and he was assisted by Inspector Sushil Kumar and other staff of CBI, PW44 Sh. Bhim Singh who was an employee of Air India; documents Ex. PW 44/B1 to Ex PW44/B12 (D 99 to D110) were seized from residence of A2 vide search list Ex PW44/A (D98). PW49 further stated that (1) mobile phone instruments of RELIANCE/LG Ex. MP1, NOKIA Ex. MP2 and INDICOM Ex. MP3; (2) SIM Cards of AIRTEL Ex. SC1 bearing no.
899110051105855429 3, EXCEL Ex. SC2 bearing no. 8991545064411810391 and (3) memory card of MICRO ADAPTOR Ex. MC1 made in China bearing number 060120P were interalia seized in aforesaid search of premises of A2. Aforesaid mobile phone instruments, SIM cards, memory card were not sealed at the place of alleged recovery or any time later at any other place, so as to protect them from any type of manipulations and tamperings. Non sealing of these articles bring into fore every possibility of their manipulations and tamperings of data contained in them.
86. PW51 deposed that he had conducted search at residence of A3 and his business premises in the name of Dhingra Properties at Karkardooma Community Centre, Delhi on 24/04/2006 interalia in the presence of independent witness PW45, receptionist at Centaur Hotel, IGI Airport wherein vide search cum seizure memo Ex PW45/A (D94) dated 24/04/2006 various articles including slip pad of Neelgagan Ex PW51/A (D95) were seized.
RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 76/107 CBI vs Yoginder Kumar etc
87. PW46 deposed that as Inspector CBI he received investigation of RC 8(E) 2005 EOUVIII from A1 on 17/05/2006 and said RC was registered against A4 and other office bearers of Netaji Subhash Chandra Bose Group Housing Society. PW46 stated that he had examined the suspects including A4, A5 in the course of investigation and during investigation of said case neither he found any evidence on record incriminating PW14 and A3 nor in the record of said case there was any notice under Section 160 Cr.P.C issued to PW14 and A3. Also PW46 filed chargesheet in the aforesaid case and as per his conclusion there, there was no incriminating material against PW14 and A3.
88. IO PW71 deposed that he had searched the residence of A1 situated at Uttam Nagar and seized the documents interalia Ex PW23/F (D89) and Ex PW52/B (D90) i.e., receipt dated 05/04/2006 and articles vide search list Ex. PW 52/A (D88) dated 24/04/2006 in the presence of PW52, House Keeping Assistant Manager from Centaur Hotel, IGI Airport. A1 in his statement under Section 313 Cr.P.C stated that the aforesaid search was illegal, he was living in a joint family comprising his parents, families of his two elder brothers namely Sh Ghanshyam Dass and Sh Yashpal whereas the seized documents did not belong to him nor were seized from his possession. PW52 elicited that in the house where search was conducted, there were an elderly person i.e., father, a lady, a male person and one or two children. As per PW52, Ex PW52/B (D90) was taken out from an iron box from the second room RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 77/107 CBI vs Yoginder Kumar etc where there was a TV, while in all there were three rooms. PW52 was unable to say from which specific place document Ex PW23/F (D89) was recovered in such search of the house. Elicited version of PW52 belies the version contained in search list Ex PW52/A (D88) of the aforesaid documents Ex PW52/B (D90) and Ex PW23/F (D89) stated to have been recovered from the purse of A1.
89. PW21 deposed that he became a member of Netaji Subhash Chandra Bose Cooperative Group Housing Society in 1989 through his brotherinlaw (Jija Ji) PW57. PW21 stated that Sh. Pradeep Mehta was working in MMTC with PW57 and PW21 had given his membership form and fees of Rs. 110/ and Rs. 10,000/ also to Sh. Pradeep Mehta for deposit in Netaji Subhash Chandra Bose Cooperative Group Housing Society for which PW21 got the receipt Ex PW21/A (D19) dated 28/06/1989 of Rs. 10,110/ which he had given along with notice Ex PW21/B (D18) dated 20/04/2006 under Section 160 Cr.P.C to IO PW71 who seized it vide production cum seizure memo Ex PW21/C (D17). PW21 stated that there was no activity of Netaji Subhash Chandra Bose Cooperative Group Housing Society for several years; even PW21 did not receive any letter or any communication from Netaji Subhash Chandra Bose Cooperative Group Housing Society. PW21 further stated that on transfer he went to Kolkata in year 1992, where he (PW21) remained almost for four years; since, there was no activity of Netaji Subhash Chandra Bose Cooperative Group Housing Society, PW21 RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 78/107 CBI vs Yoginder Kumar etc requested PW57 to pursue for refund of his deposited money. PW21 stated that PW57 informed him that Sh. Pradeep Mehta had left MMTC and was not traceable and PW57 could not ascertain about the refund of aforesaid deposited money of PW21. As per PW21, in year 2006, A5 came to his house and told PW21 that he (A5) was president of Netaji Subhash Chandra Bose Cooperative Group Housing Society and asked PW21 to give the receipt of Rs. 10,110/ back to him (A5) since PW21 had resigned from said society. PW21 stated that he told A5 that he had never resigned from said society upon which A5 told PW21 that he (A
5) was told by Mr. Pradeep Mehta that PW21 had so resigned from the aforesaid society and hot talks pursued whereby A5 told PW21 that he should give back the aforesaid receipt and he (A5) will give money of PW21 back to him upon which PW21 told A5 that even if the interest of saving account is calculated then his (PW21) such amount of Rs. 10,110/ would have become Rs. 28,000/ in about 17 years; so, PW21 asked A5 to pay him (PW21) Rs. 28,000/ but A5 offered to pay Rs. 20,000/ to PW21, which offer PW21 declined. PW21 stated that later he received telephone call of A1; A1 inquired from PW21 that whether he was member of aforesaid society and whether he had resigned; PW21 told A1 that he had not resigned upon which A1 told PW21 that his resignation was placed in the file and in case PW21 had not resigned then PW21 should come to CBI office, one day. PW21 stated that he told A1 that he was a Government Employee and first a notice in writing be given to him and only then he will come. As per PW21, after RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 79/107 CBI vs Yoginder Kumar etc 2/3 days, PW21 received a notice Ex PW21/B (D18) dated 20/04/2006 under Section 160 Cr.P.C by post from CBI office signed and issued by A1, consequent to which PW21 had gone to CBI office on 27/04/06 but was told at the reception that A1 was not available there; neither attendance of PW21 was recorded there nor he was given any acknowledgment of attending office of CBI. PW21 deposed that on return back to his home, he later wrote a letter to A1 informing about his attending CBI office on 27/04/06. PW21 stated that he received telephone call of A5 on his landline phone at house and A5 told PW21 to surrender the receipt of Rs. 10,110/ and A5 will give some money to PW21 but A5 did not tell PW21 what exact money he wanted to give to PW21. PW21 stated that he inquired from A5 what he had to do in turn upon which A5 told PW21 that he had to give statement to CBI and then he will be free. PW21 stated that he took advise from his lawyer, who advised him to give correct information to CBI, so later PW21 informed A5 that neither he will take back money from A5 nor he will give statement to CBI as per their desire but he will give the true statement there. As per PW21, thereafter he received a letter from IO PW71 and he reached in the CBI office on the given date for inquiry and gave his statement there.
90. PW57 deposed that PW21 was his brother in law and he made PW21 a member in a Cooperative Group Housing Society about 18 or 20 years ago; at that time Pradeep Mehta was President or Secretary.
RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 80/107 CBI vs Yoginder Kumar etc PW57 stated that when for considerable period they could not get anything they approached to Sh Pradeep Mehta and he (PW57) requested Sh Pradeep Mehta several times for return of money of PW21 but he (Pradeep Mehta) did not return it. Initially PW57 stated of having never heard the name of J.L Kataria (A5) but since he resiled from his previous statement, PW57 was cross examined at length by Ld. PP for CBI and then he admitted that to resolve the dispute of the money of his brother in law and with regard to membership of said society one J.L Kataria with Harish Kumar had come to his house to get the matter settled. PW57 stated that PW21 had told him that the society officials were using his forged resignation letter from society membership.
91. PW57 also stated in cross examination of Ld. PP for CBI that when said J.L Kataria and Sh Harish Kumar had come to his house, he had made call to PW21, enquired from him about the amount for settlement for his society membership aforesaid and PW21 told PW57 the said amount to be Rs 60,000/ or Rs 70,000/ upon which said J.L Kataria offered Rs 20,000/ as settlement amount and when no settlement could be arrived at, PW57 told those persons to talk to his brother in law (PW21). Per contra, in his deposition PW21 did not narrate afore elicited version of PW57 nor made any whisper of having conveyed Rs 60,000/ or Rs 70,000/ as sum of settlement for his society membership over telephone to PW57 on visit of A5 with said Sh Harish Kumar at residence of PW57.
RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 81/107 CBI vs Yoginder Kumar etc
92. PW48 deposed that in year 2002 or 2003 he started assisting his paternal uncle (Chachaji) i.e. A3 in the business of properties done by A3 under the name and style of M/s Dhingra Properties near Karkardooma, Delhi92 and he used to get monthly salary of Rs 15,000/ from A3. PW48 stated that A2 had come to their office for booking of plot and A2 had business of mobile phones at Noida. PW48 stated that in April 2006 A2 had come to their aforesaid office for booking of plot at Diggy Road, Jaipur of U Turn Housing Private Ltd, also called as Silver City. PW48 stated that he never had a talk with A2; only A3 had talks with A2 which A3 used to tell to PW48. PW48 stated that he had seen A2 in the office of A3 twice in 2006. PW48 stated that whenever A3 was in the office, A3 used to receive the money for booking of plots in Jaipur from the persons booking the same; in the absence of A3, PW48 used to receive such money but did not issue any receipt for cash or cheque received by him for such bookings. PW48 stated that in April 2006 a person had come to the office of A3 in the absence of A3 and gave a sum of Rs 2 lakhs in cash to PW48 and told that said money was sent by A2 upon which PW48 received the said money. Initially PW48 was unable to say whether he handed over said amount of Rs 2 lakhs to A3 or official of the company of PW20 but later in the course of cross examination by Ld. PP for CBI on his resiling, PW48 stated that he handed over sum of Rs. 2 lacs to A3 saying that the said money was sent by A2 as advance for two plots. PW48 deposed that in all four plots were booked by A2 in four different names; for first two plots A2 had RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 82/107 CBI vs Yoginder Kumar etc given Rs. 3 lakhs in advance; for the other two plots, A2 had given Rs. 1 lakh each as advance; in all A2 had given Rs. 5 lakhs as advance. PW48 stated that he used to report daily to A3 for the amounts received or whatever was done in the office in the absence of A3.
93. PW20 deposed that he was Director of M/s UTurn Housing Private Limited which company was engaged in the Real Estate business and developed various projects including residential township in the name of Silver City on Diggy Road, Jaipur in April 2006 for which they had several agents for bookings etc. and A3 was one of their broker, who even prior to 2006 had done work of their other projects. PW20 stated that after receiving letter Ex PW20/B (D12) dated 10/02/2006 from A3, he (PW20) had issued copy of authorization Ex PW20/A (D13) dated 15/02/06 to Market for future projects. PW20 stated that he had given letter Ex PW20/C (D14) dated 12/02/06 to CBI authorizing A3 to market their projects in Jaipur giving him the area described therein with plot sizes also described therein for allotments. PW20 stated that initially rate of Rs. 2000/ per Sq. Yd. was fixed as sale price of sale of plots in Silver City project; later, from time to time such price was increased periodically; there was no fixed time period for A3 to sell plots; around hundred plus plots were sold by A3 in Silver City Project; bookings were done by A3 on their printed application forms; minimum booking amount was Rs 50,000/. PW20 further elicited that he had issued receipt Ex PW20/DA dated 06/04/2006 to A3 in token of RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 83/107 CBI vs Yoginder Kumar etc receiving of cash of Rs 1 crore 30 lakhs in respect of booking of the plots in Silver City Project by A3. PW20 stated that he had given documents Ex PW20/E (colly) [D5 (i), (ii) in respect of receiving of Rs 2 lakhs as advance registration from one Kanwar Singh Rawat for allotment of property; D6 (i),(ii); D7 (i),(ii) in respect of receiving of Rs 1 lakh each as advance registration from one Mrs Neelam and one Rakesh Kumar for allotment of property]; which were seized vide production cum seizure memo Ex PW20/D (D4) dated 24/04/2006. No receipt or application for allotment of property amongst aforesaid documents Ex PW20/E (colly) bears any signatures of stated customers namely Kanwar Singh Rawat, Rakesh Kumar and Mrs Neelam. PW20 stated that he identified signatures of his employee PW1 who had delivered receipt Ex PW20/F1 (earlier Mark P1) dated 05/04/2006 in respect of receipt of amount from Rajinder Singh Gosai and the application form Ex PW20/F2 (earlier Mark P2) for advance registration for allotment of property in name of Sh Rajinder Singh Gosai which were seized vide Ex PW1/A (D22) by IO PW71. Neither Ex PW20/F1 nor Ex PW20/F2 bear any signatures of applicant/customer Sh Rajinder Singh Gosai. PW20 stated that he had interalia delivered statement Ex PW20/H (D11) of booking register of his company i.e., M/s UTurn Housing Private Limited vide receipt memo Ex PW20/G (D10) dated 29/04/2006 to IO PW71. PW20 stated that the application forms for bookings in the name of Kanwar Singh Rawat, Mrs Neelam, Rakesh Kumar (part of Ex PW20/E collectively) RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 84/107 CBI vs Yoginder Kumar etc and Rajinder Singh Gosai (Ex PW20/F2) were handed over to them by A3 and in lieu of it, PW20 issued the acknowledgment receipts of Rs 2 lakhs, Rs 1 lakh each in favour of said Kanwar Singh Rawat, Mrs Neelam, Rakesh Kumar and Rajinder Singh Gosai respectively.
94. Section 133 of Indian Evidence Act reads as under:
"133. Accomplice.An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice."
95. Section 114 of Indian Evidence Act and its illustration (b) read as under:
"114. Court may presume existence of certain facts.The Court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
Illustrations The Court may presume ..................
(b) That an accomplice is unworthy of credit, unless he is corroborated in material particulars;
.................."
96. Conjoint analysis of the precedents relied by the defence as well by prosecution including of Chonampara Chellappan (supra); Ashok Kumar Aggarwal (supra); Dagdu (supra); Bhiva Doulu Patil (supra); Rampal Pithwa Rahidass (supra); P.V. Narasimha Rao RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 85/107 CBI vs Yoginder Kumar etc (supra); Mohd. Hussain Umar Kochra (supra), as well as of the precedents Madan Mohan Lal vs State of Punjab, MANU/SC/0144/1970; Balwant Kaur vs Union Territory of Chandigarh, MANU/SC/0198/1987; A.P Kuttan Panicker and Ors. vs State of Kerala, MANU/KE/0135/1962; Bachcha Babu and Ors. vs Emperor, MANU/UP/0539/1934; Niranjan Singh vs State of Punjab, MANU/SC/0871/1996; Sarwan Singh vs The State of Punjab, MANU/SC/0038/1957; Rampal Pithwa Rahidas and Ors. vs State of Maharashtra, MANU/SC/0979/1994; Yamuna Singh and Others etc. vs State of Bihar, MANU/SC/0731/1996; Narayan Chetanram Chaudhary & Anr. vs State of Maharashtra, MANU/SC/0547/2000; Naresh Kumar Alias Pappu vs State of H.P, MANU/HP/0267/2005; State of U.P. vs Harendra & Ors., MANU/UP/1714/1996; State of H.P vs Lal Chand Aggarwal and Ors., MANU/HP/0516/2011; State of Rajasthan and etc. vs Ram Niwas and Anr., MANU/RH/0237/2006; Joga Gola vs State of Gujarat, MANU/SC/0136/1980; Banwari Lal vs State of Himachal Pradesh, MANU/HP/0026/2003; Pushpangadhan vs State of Kerala & Anr., MANU/KE/0610/2004; Raghuni Singh @ Raghunandan Singh and Ors. vs The State of Bihar, MANU/BH/0013/2003 and State of Orissa vs Bishnu Charan Muduli, MANU/OR/0309/1985 culls out the law laid, which even otherwise is by catena of decisions of Apex Court that evidentiary value of evidence of RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 86/107 CBI vs Yoginder Kumar etc the approver(s) is as follows.
(A) The combined effect of Sections 133 and 114 (b) of the Evidence Act is that (a) an accomplice is competent to give evidence; (b) though the conviction of an accused on the sole testimony of an accomplice cannot be held to be illegal, yet the Courts, as a matter of practice, will not accept the evidence of such a witness without corroboration of his evidence in material particulars qua each of the accused.
(B) Every witness who is competent to give evidence is not necessarily a reliable witness. Since an approver is alleged to be an accomplice in the commission of the crime itself or 'privy' to the offence, the appreciation of his evidence must satisfy a double test:
(a) His evidence must show that he is a reliable witness.
This does not refer to his antecedents, but to the character of the evidence given by him, that is to say, whether it is inherently incredible discrepant or self contradicting, apart from any question of what the other witnesses say. If his evidence fails to satisfy this test, there is an end of the matter, resulting in the rejection of his evidence. But if it passes this test of inherent credibility and consistency, it must still pass the test of corroboration.
The reliability of the approver's evidence against a particular accused may be shaken if the approver's account against another accused is wholly discrepant.
Nor does it mean that before reliance can be placed upon the evidence of an approver, it must appear that he is a penitent witness. The section itself shows that the motivating factor for an approver to turn is the hope of pardon and not any noble sentiment like contrition at the evil in which he has participated. Whether the evidence of the approver will be accepted or not will have to be determined by applying the usual tests, such as the probability of the truth of what he has deposed, to the circumstances in which he has come to give evidence, whether he has made a full and complete disclosure, whether his evidence is merely selfexculpatory and so on. The Court has, in addition, to ascertain whether his RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 87/107 CBI vs Yoginder Kumar etc evidence has been corroborated in material particulars.
The reliability test, does not mean that the evidence of the approver has to be considered in watertight compartments, it must be considered as a whole, along with the other evidence led by way of corroboration.
(b) after the approver's evidence passes the test of reliability, which is a test common to all witnesses, it must pass the test of corroboration, which is special to the approver's evidence because it is 'tainted' evidence, coming from an accomplice to the crime. The nature of corroboration required will no doubt vary according to circumstances, but it means that the approverwitness's account must be corroborated by the evidence of the other witnesses or circumstantial evidence, on the following points:
(i) It must confirm, in some material particulars that the offence had been committed.
(ii) It must also be confirmed that the accused committed the offence. This means that it is not enough that a piece of evidence tends to confirm the truth of a part testimony of the approver; it must confirm that part of the testimony which suggests that the crime was committed by the accused.
For instance, if the approver says that the accused and he stole the sheep and he put the skins in a certain place, the discovery of the skins in that place would not corroborate the evidence of the approver as against the accused. But if the skins were found in the house of the accused, this would corroborate, because it would tend to confirm the statement that accused had some hand in the theft.
(iii) Such corroboration may come from circumstantial evidence.
(iv) The circumstantial evidence need not be to the effect that the accused committed the crime, but would suffice if it shows that the accused was connected with the crime, e.g., in the case of offences committed in secret, where direct evidence may not be available.
(v) The conduct of the accused himself, as against whom corroboration is required, may constitute circumstantial corroboration of the approver's evidence.
RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 88/107 CBI vs Yoginder Kumar etc
(vi) When the evidence of an approver is sought to be corroborated by the evidence of other witnesses such witnesses must be independent of sources which are likely to be tainted, so that the evidence of one approver cannot be corroborated by the evidence of another accomplice.
(vii) But a previous statement of the approver himself may afford corroboration of his testimony under the present section, if it satisfies the conditions laid down in Section157 of The Indian Evidence Act. Such previous statement of the approver cannot be said to be independent evidence.
(viii) The nature of extent of corroborations required would vary according to the circumstance in which the offence was committed and other relevant circumstances. It may even be dispensed with where there are special circumstances. Where, however, corroborative evidence is produced, it has also to be weighed, with other evidence, even though it is legally admissible.
97. Where the approver's evidence is corroborated by the other evidence, on material points, conviction may be based on the sole testimony of the approver.
98. PW14 deposed selfexculpatory fact that he as well as A3 gave Rs 8 lakhs to Rs 10 lakhs each to Devender Kumar Maan as advance for making them member in Radha Ballabh Group Housing Society per contra to his narration in Ex PW14/B (also Ex PW67/B) dated 28/08/2006 i.e., the statement under Section 164 Cr.P.C given by PW14 before PW67, the then Metropolitan Magistrate, wherein he had narrated the offer of A3 that he (PW14) could finance a sum of Rs 10 lakhs to A3 for total investment of Rs 20 lakhs and Rs 20 lakhs were RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 89/107 CBI vs Yoginder Kumar etc given by A3 to said Devender Kumar Maan as their investment with regards to Radha Ballabh Group Housing Society wherein after allotment of the land, they could get introduce 10 members each in the society for which even after payment of Rs 20 lakhs by A3 to Devender Kumar Maan, A3 took register, stamps and other papers from said Mr. Maan and they returned to their homes. In Ex PW14/B (also PW67/B) with regards to afore elicited facts, PW14 also asserted that he told to Sh Ghanshyam Roy, Dy SP CBI in inquiry by him that he (PW14) had only invested money and they were neither members nor in the management of the society.
99. In Ex PW14/B (also Ex PW67/B), PW14 had also stated that in last week of March 2006 he received telephone call from A1 who told PW14 that he wanted to make some inquiry regarding Netaji Subhash CGHS from PW14, upon which PW14 told A1 that he had no concern with the society and A1 told PW14 that he would tell the connection to PW14. Also PW14 narrated in Ex PW14/B (also Ex PW67/B) that on 30/03/2006 he had received telephonic call from A1 asking to come to CBI office on 31/03/2006 at 11 am but when PW14 went there at said date and time he could not find A1 there and instead ASI Rajiv Panwar came down, told PW14 that A1 had gone for urgent work for SP and PW14 went with said ASI Rajiv Panwar in canteen for refreshment, wherein said ASI Rajiv Panwar told PW14 that A1 was a strict officer and he (PW14) would have to do "Acchi Sewa Paani Karani RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 90/107 CBI vs Yoginder Kumar etc Padegi" to pull himself out of the inquiry and while coming out of the gate to see PW14 off, said ASI Rajiv Panwar asked money from PW14 to buy sweets for his children and on that count obtained Rs 240/ from PW14. None of these facts were testified by PW14 in Court. Per contra, PW14 deposed that only in the month of April 2006 he had received telephone call on his mobile phone and calling person told himself to be Inspector Yoginder Kumar (A1) and next day he had gone to office of CBI but met some ASI while A1 was not there and after waiting for sometime PW14 returned back. In his deposition, PW14 did not say that even on said day of April 2006 when he met some ASI in the absence of A1, said ASI had said anything about A1 or made him spend any sum of money on refreshments or for purchase of sweets. PW14 further deposed that in the month of April 2006, 2/3 days later to aforesaid call of A1 to him in the month of April 2006, aforesaid ASI came to his house in the evening, asked him to talk with A1 and when PW14 had talk with A1 on telephone stating having no concern with said society and having no interest therein to be not troubled and spared, A1 threatened PW14 on telephone itself that when they will drag him (PW14) from his house then he (PW14) will come to know and thereafter aforesaid ASI told PW14 that only in case he gives some money to A1 then only he will spare him (PW14) and PW14 was asked to make arrangement of Rs 1012 lakhs; PW14 got frightened and stated to said ASI that he was not having that much money and can give maximum Rs 50,000/ only and his life may be spared. As per deposition of PW14 in RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 91/107 CBI vs Yoginder Kumar etc Court, said ASI had purportedly gone to residence of PW14 either on 4 th or 5th or 6th of April 2006 and not before. PW14 did not testify about exact date of visit of said ASI at his residence. In Ex PW14/B (also Ex PW67/B), PW14 was specific saying visit of ASI Rajiv Panwar was on 03/04/2006 at his residence, who told PW14 that A1 had summoned PW14 to his office and PW14 had refused to accept the summons as he had no connection with Netaji Subhash Society, upon which said ASI made a call from landline phone of PW14 and made PW14 talk to A1, in which talk A1 used abusive language and threatened to drag him to CBI office in full public view. In Ex PW14/B (also Ex PW67/B), PW14 had further asserted that at 7.30 pm on 03/04/2006 he again received a call and he was asked to hand over the phone to ASI and after talking on phone, ASI Rajiv Panwar asked him (PW14) that Sahab was asking whether he was ready to pay Rs 1012 lakhs, after which ASI Rajiv Panwar asked PW14 to talk to A1 and PW14 asked A1 why he was being harassed without any reason, upon which A1 threatened PW14 that he would see him (PW14) and asked whether he had thought about any good figure; again A1 talked to said ASI and said ASI disconnected the phone and asked PW14 about his willingness to pay and then PW14 offered to pay Rs 50,000/ to get himself out of the trouble and on being further pressurized PW14 agreed to cough up Rs 1 lakh and then said ASI Rajiv Panwar went away. Entire sequence of events alleged to have transpired on 03/04/2006 at residence of PW14 as per Ex PW14/B (also Ex PW67/B), finds no place in deposition of PW14. Sequence of events RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 92/107 CBI vs Yoginder Kumar etc alleged to have been transpired on 4 th or 5th or 6th of April 2006 at residence of PW14, as deposed by PW14 find no similarity with the sequence of events alleged by PW14 in Ex PW14/B (also Ex PW67/B) alleged to have transpired on 03/04/2006, as elicited hereinabove. Infact, on comparison both these narrations are differently placed. In deposition, PW14 speaks of conversation with A1 in only one telephone call on 4th or 5th or 6th of April 2006. In Ex PW14/B (also Ex PW67/B), PW14 speaks of conversation with A1 in not one but two telephone calls on 03/04/2006 and in respect of the text of conversation of PW14 with A1, the testimony of PW14 is improvised, varied and contains introduction of different and new facts, it is also devoid of the fact of PW14 having agreed to cough up Rs 1 lakh; instead of asking of PW14 regarding his willingness to pay Rs 1012 lakhs, PW14 deposed that he was asked to make arrangement of Rs 1012 lakhs by said ASI.
100. In Ex PW14/B (also Ex PW67/B), PW14 had interalia narrated that in February 2006 he had asked A3 about the fate of their investment in Radha Ballabh Society and then A3 introduced him to A2 at Singhla Sweets at Karkardooma, Delhi, who dealt in mobile phones and PW14 was told that A2 had acquaintance with CBI officers, where A2 gave his telephone number to PW14 and assured to inform PW14 in 34 days. None of these afore elicited facts were deposed by PW14 in his testimony where PW14 simply stated he met A2 only once but could not say who introduced him with A2. In Ex PW14/B (also Ex RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 93/107 CBI vs Yoginder Kumar etc PW67/B), PW14 had further stated that when he had again enquired from A3 then A3 told him that A2 had informed that matter of Radha Ballabh Society had gone in regular case, upon which without understanding what was meant by regular case, PW14 got scared and thereafter on 04/04/2006 PW14 made call to A2 and told A2 that he (PW14) was being harassed by A1; on the next day on subsequent call of PW14 to A2, A2 told to PW14 that name of PW14 was not in any case but advised him (PW14) to pay and get rid of A1. Even none of these facts were testified by PW14 in his deposition.
101. PW14 deposed that on 6th or 7th April 2006 he received telephone call of A1 and at that time he was in temple; thereafter PW14 made telephone call from his mobile phone to his son PW8 and told him the facts and asked him for arrangement of Rs 1 lakh, putting Rs 50,000/ in two envelopes, upon which PW8 made telephone call to employee PW6 to bring said money from their home and said Rs 1 lakh in shape of Rs 50,000/ in two envelopes were given to PW14 by his employee PW6 outside Soubhagaya Banquet Hall, Vikas Marg, Preet Vihar, Delhi. PW8 testified on 30/07/2012 that six years ago, a day before Ram Navmi he received call of his father PW14 in an evening of April at about 5 or 5.30 pm and PW14 asked him to take Rs 1 lakh from his mother PW9 and give it to employee PW6 and accordingly PW8 informed his mother PW9 and PW9 gave Rs 1 lakh in form of two bundles of Rs 50,000/ each in denomination of currency notes of Rs 500/. PW8 did not RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 94/107 CBI vs Yoginder Kumar etc whisper of any facts of any demand of bribe by anyone having been told to him by his father PW14 during aforesaid conversation nor stated of any direction of PW14 that the said sum of Rs 1 lakh was to be put in two envelopes. Infact PW8 did not whisper of any envelope. Per contra, PW6 stated that on 05/04/2006 he received telephone call of PW14 asking him (PW6) to go to home and bring Rs 1 lakh from mother (PW9) of Shashi (PW8). PW6 did not say of any telephonic instruction received by him on 05/04/2006, 06/04/2006 and 07/04/2006 from PW8 nor he testified of having brought the sum of Rs 1 lakh in two envelopes and having given the said sum in two envelopes to PW14. PW6 simply deposed that at home he found both PW8 and PW9 where PW9 gave him two bundles of currency notes of denomination of Rs 500/, each bundle was having Rs 50,000/ and since PW14 had told him to meet him (PW14) near Soubhagaya Banquet Hall on the road, so PW6 went there and gave said money to PW14 who came there after 2/4 minutes of his reaching there and one such bundle of Rs 50,000/ was kept in his pocket by PW14 and the other bundle of Rs 50,000/ was in the hand of PW14. On 30/07/2012, PW9 deposed that 5/6 years ago, one day prior to Ram Navmi in month of April, her son, PW8 came at home and told of having received a call from his father PW14 that Rs 1 lakh is to be given to their employee PW6, upon which PW9 gave Rs 1 lakh in form of two bundles of currency notes of denomination of Rs 500/ to PW6. As per PW9, before that day, earlier PW14 received 3/4 telephone calls due to which he became upset as the caller demanded money to the tune of Rs 1 RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 95/107 CBI vs Yoginder Kumar etc lakh but PW9, wife of PW14, residing under same roof with PW14, did not whisper that at any point of time any caller on telephone or otherwise any person ever demanded 1012 lakhs from PW14 to spare him.
102. PW14 testified that on 6th or 7th April 2006 he met A1 outside a car outside a restaurant namely perhaps Laziz at New Rajdhani Enclave opposite Preet Vihar at about 6 or 6.30 pm whereas a person namely Kataria was sitting in the car, about whom PW14 stated that he could not identify, but said person told PW14 that he was also fixed in the matter of other society and PW14 should also save his life. PW14 further deposed that A1 enquired from him how much money he had brought, then A1 sat on the back seat of said car and PW14 also sat near him and started weeping profusely, pleading to A1 having no concern with said society, upon which A1 used abusive language with PW14 and asked PW14 how much money he had brought, upon which PW14 took out an envelope containing Rs 50,000/ to which A1 did not agree, saying money was less and should be alteast Rs 34 lakhs, subsequent to which PW14 took out another envelope containing Rs 50,000/ more and gave said Rs 1 lakh to A1; A1 told PW14 to go, not to look back and PW14 should never identify him later. In the course of his deposition, PW14 stated that he had met said Kataria just for 23 minutes and could not identify said Kataria from amongst accused persons standing in the dock. Also PW14 stated that when on weeping in car, he pleaded with A1 of having no concern with society, then A1 RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 96/107 CBI vs Yoginder Kumar etc said "Ye to huma pata hai ke kaise tume paise hume dene hai aur kaise tum involve ho". No such version finds mention in statement Ex PW14/B (also Ex PW67/B). Instead about the sequence of occurrence in the car on 05/04/2006 in the evening, the version of PW14 in Ex PW14/B (also Ex PW67/B) was "I noticed the car in which a thin person aged about 40 yrs was sitting. One person was standing outside the car and he was smoking. I got inside the car and asked the person whether he was Mr. Yogender Kumar. He told me that he was Mr. Kataria and he was also being harassed by Inspector Yogender Kr in some other Group Housing Society case in Pappankalan. Meanwhile, Yogender Kr finished his cigarette and got seated on the backseat with me. He confirmed that I was Mr. Chawla and thereafter he introduced himself as Inspector Yogender Kumar. He asked as to what I had brought. I told him that I was a God fearing man and I had no connection with any Group Housing Society. I started weeping and asked him to spare me, but he told that I would have to pay at least 34 lacs rupees and asked me as to what I had brought. Thereafter, with great sorrow I took out one envelope containing Rs. 50,000/ and gave to him. He got annoyed. He asked Mr. Kataria to counsel me and he himself went outside the car. Mr. Kataria told me that Mr. Yogender Kr was a very bad person and I should get rid of him by fulfilling his demand.
Mr. Yogender Kr also came inside the car and we continued to argue. Finally, I took out the second envelope containing Rs. 50,000/ and gave it to Inspector Yogender Kumar against my conscience. I was also very afraid as he had threatened me to implicate me in Radha Ballabh society case also."
103. PW14 further testified that later to aforesaid sequence of his handing over of Rs 1 lakh to A1, he received telephone call on his mobile phone from A2 advising him that he should not worry and his RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 97/107 CBI vs Yoginder Kumar etc (PW14) name was not there in the Group Housing Society namely perhaps Netaji but to save his life, he (PW14) should give Rs 20,000/ or Rs 25,000/ further to A1 and since A1 was strict, he (A1) will not leave PW14 otherwise. There is no whisper of these facts in statement Ex PW14/B (also Ex PW67/B) of PW14 under Section 164 Cr.P.C. Instead PW14 stated following facts in statement Ex PW14/B (also Ex PW67/B):
"23 days thereafter I received a call from Mr. Rakesh Bist and I told that I had paid Rs 50,000/ to Yogender Kumar. I intentionally disclosed a smaller amount. Before all this, I had asked Mr. Dhingra about Mr. Yogender Kr and he told me that he was also being harassed by him. He also told that Shri Yogender Kr had booked three plots in a Housing Scheme at Jaipur and Mr. Dhingra had to pay Rs. 1 lac from his own pocket towards booking amt of those plots. He had also advised me to get rid of Inspector Yogender Kr."
104. PW14 did not depose any facts of: (1) having told to A2 that he had paid Rs 50,000/ to A1; (2) having intentionally disclosed smaller amount to A2; (3) A3 having told PW14 that A1 had booked three plots in a housing scheme at Jaipur and A3 had to pay Rs 1 lakh from his own pocket towards booking amount of those plots and (4) A3 having advised PW14 to get rid of A1.
105. Accordingly, PW14 was confronted and contradicted with the extracts of his previous statement Ex PW14/B (also Ex PW67/B) wherein he had stated contrary to what he deposed in Court, elicited hereinabove in detail.
RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 98/107 CBI vs Yoginder Kumar etc
106. Facts culled out and elicited hereinabove from testimony of PW14 make it implicit clear that in deposition of PW14 there is nothing regarding complicity of A3, A4, A5 and A6 in the commission of the offences for which they have been charged since no role at all of A3, A4, A5 and A6 in any crime in question has been attributed by PW14.
107. PW14 admitted in the course of his examination that prior to the day of alleged delivery of Rs 1 lakh as bribe to A1 by him in the month of April 2006, he (PW14) had never met A1 at any point of time. No steps were taken in the course of investigation by the concerned officers of investigating agency for organization of Test Identification Parade of suspect Inspector Yoginder Kumar (A1) as he then was, since PW14 had met him only once when he allegedly delivered Rs 1 lakh as bribe to him in April 2006. In accordance with Section 9 of the Evidence Act, it was incumbent upon the investigating officer PW71 to organize Test Identification Parade for identification of A1 from PW14 before appropriate forum, in the fact of the matter. Instead of taking steps to organize such Test Identification Parade, PW71 got identified A1 in CBI office from PW14 in the presence of PW10 and Sh. A.K. Bahl and prepared Memorandum Ex. PW10/A (D86) dated 09/07/2007. Such identification vide memorandum Ex PW10/A is nothing else but a farce and violation of principles regarding identification borne out of Section 9 of the Evidence Act and the law laid by the Apex Court in catena of RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 99/107 CBI vs Yoginder Kumar etc decisions had been put to rest.
108. Original of Ex PW23/A (D21) i.e., copy of notice under Section 160 Cr.P.C was neither secured, nor it is proved on record that such original document was destroyed or lost, making the copy admissible in secondary evidence. Ex PW21/B (D18) alleged to be containing writings of A1 is a notice purportedly issued by A1 to PW21, asking him to appear before A1, the IO conducting investigation in RC SID 2005 E 008 along with some documents and in no manner connects A1 with the offences charged when said document is read with the other legally admissible evidence, discussed above. Entries Ex PW23/C, Ex PW23/D in room rent collection register Ex PW24/B (D
26) simply reflect stay of A1 in February and March of 2006 at Bhubaneswar and for want of legally admissible evidence of electronic record of call detail records is of no help to the prosecution to prove the charges framed. Ex PW52/A (D88) finds mention of piece of paper [later Ex PW23/F (D89)] and receipt [later Ex PW52/B (D90)] to have been seized from purse of A1. Ex PW52/A (D88) is the search list with regard to the search conducted at residential premises allegedly of A1 and articles seized therefrom but it is not in respect of any personal search of A1 conducted at any point of time and articles seized in the personal search. No where in Ex PW52/A (D88) it is mentioned as to from which place in the searched residence stated purse of A1 was recovered/found nor to that effect any examined prosecution witness has RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 100/107 CBI vs Yoginder Kumar etc testified any fact. Still mere mention in Ex PW23/F (D89), of mobile phone numbers of A2, A3 and others to be in writings consistent with writing characteristics of the standard writings Ex PW23/G1 (D122) to Ex PW23/G9 (D130) and specimen writings Ex PW10/B (colly) (also Ex PW71/J1 to Ex PW71/J11) (D120) of A1 as per report Ex PW63/A (colly) (part of D119) of handwriting expert of CFSL, will be of no aid to prosecution to prove any of the charges framed. The questioned English writings in respect of names, addresses, phone numbers interalia of A3, PW14 and others, marked Q5, at page numbered as D95 in writing pad Ex PW23/E (D97) titled Neeraj writing pad, alleged to have been seized from almirah of A1 in his office search on 26/04/2006, which writings were opined to be of A1 in report Ex PW63/A (colly) (part of D119); can no way prove any complicity of A1 for the offences charged. Ex PW44/B1 (D99) to Ex PW44/B3 (D101) are three receipts of Rs 1 lakh, Rs 1 lakh and Rs 2 lakhs each, all of date 05/04/2006 in the names of Rajinder Singh Gosai, Rakesh Kumar and Kanwar Singh Rawat (A6) purportedly signed by authorized signatory of U Turn Housing Private Limited for receipt of such cash as advance of per registration; which receipts were allegedly recovered from A2 vide search list Ex PW44/A (D98/1) from his Noida residence on 24/04/2006, which in no way prove any complicity of A2 for the offences charged. Mere booking of plots after paying the advance, in itself is no offence whatsoever. Even otherwise these receipts Ex PW44/B1 to Ex PW44/B3 have not been proved to be issued against RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 101/107 CBI vs Yoginder Kumar etc the cash delivered by A2 himself or through any person in the office of A3 and later on received by PW20 for the persons named in these receipts. A3 was admittedly engaged in property business. A person doing such business in normal routine course retains particulars including names, addresses, phone numbers of any private or public servant persons who come in his contact and are in any manner acquainted with him. Recovery of note pad Ex PW51/A (D95) containing names of A2, A6 as well as one Neelam, Rajinder Singh Gosai and Sunil from premises of A3 in no manner can prove complicity of A3 in the offences charged. The documents aforesaid Ex PW21/B (D18), Ex PW23/A (D21), entry Ex PW23/C [part of Ex PW24/B (D26)], entry Ex PW23/D [part of Ex PW24/B (D26)], Ex PW23/F (D89), Ex PW52/B (D90), Ex PW23/E (D97), Ex PW44/B1 (D99) to Ex PW44/B3 (D101), Ex PW23/G1 (D122) to Ex PW23/G 9 (D130), Ex PW51/A (D95) unilaterally or collectively with other legally admissible evidence on record, deposition of examined prosecution witnesses discussed above, do not suffice in any manner to prove any ingredient of any of the offences charged elicited above nor from it any inference can be drawn against any of the arraigned accused persons including A1 with regard to their complicity for the offences charged.
109. True that previous conviction and sentence of one year of PW14 is not a parameter to evaluate and assess his deposition. Fact RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 102/107 CBI vs Yoginder Kumar etc remains that it is the character of evidence of approver PW14 which is to be tested on the parameters and law laid in the cases elicited in preceding part of this judgment including that of Vadivelu Thevar (supra). Testimony of PW14 is suffering from numerous additions, deletions, material contradictions, severe infirmities, major improvements, exaggerations from his statement Ex PW14/B (also Ex PW67/B), going to the root of the matter and the core of the prosecution case. Besides that the testimony of PW14 is inherently discrepant or selfcontradicting on material facets of the matter as well as is selfexculpatory in respect of payment of bribe, roles ascribed to arraigned accused persons in respect of demand and acceptance of bribe and their complicity in the crime alleged and made vivid and elicited in detail in preceding paras of this judgment. Careful analysis and evaluation of testimony of PW14 makes me reach to the opinion that the testimony of PW14 can be classified in the category of neither wholly reliable nor wholly unreliable witness in terms of law laid in the case of Vadivelu Thevar (supra). Testimony of PW14 finds no corroboration, independent of sources which are likely to be tainted, on material counts from any oral, documentary, direct, circumstantial, legally admissible electronic record/evidence, so as to confirm, in some material particulars that the offences in question had been committed; that the arraigned accused committed the offences charged. Even several recorded statements under Section 161 Cr.P.C of PW14 by IO PW71 have not been relied nor placed on record for contradictions, if any, though IO PW71 candidly admitted of having RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 103/107 CBI vs Yoginder Kumar etc recorded such statements whereas PW14 flatly refused of having given any such statement to IO PW71 in the investigation. Such sole testimony of approver PW14 cannot become basis of conviction of all or any of the arraigned accused persons.
110. Despite the fact that case was registered on source information and the Special Cell of CBI was conducting telephonic surveillance and intercepting calls of several landline/mobile phones alleged to have been used by the arraigned accused in the period from 06/03/2006 to 13/04/2006, it is beyond comprehension as to why no trap had been laid to apprehend red handed any of the arraigned accused persons while demanding/accepting bribe despite availability of ample opportunities with the seasoned officers of premier investigating agency available at the elbow of Special Unit of CBI. Necessary care and caution has not been taken in obtaining/receiving the electronic record by secondary evidence in terms of law enshrined in Section 65B of The Indian Evidence Act and so interpreted by the Apex Court in the case of Anvar P.V (supra) making the obtained secondary evidence of electronic record inadmissible in evidence and of no help to the prosecution in the matter, so as to corroborate in any way the uncorroborated version of approver PW14 besides which on record there is no legally admissible evidence including oral or documentary evidence to prove complicity of the arraigned accused in the offences charged. Had sincere efforts been done by concerned officers of investigating agency (1) in red handed RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 104/107 CBI vs Yoginder Kumar etc apprehension of arraigned accused persons on receipt of information of alleged crime by surveillance of phones; (2) for subsequent collection of secondary electronic record/evidence appropriately in terms of law laid; then there was every likelihood of the fate of this matter to have been all together different.
111. The substratum of the prosecution case has several holes which cannot be plugged. No new story can be reconstructed by this Court. The elicited intrinsic circumstances speak volumes against the prosecution case and raise enormous amount of suspicion in mind regarding the complicity of the accused persons in the commission of alleged offences. The elicited severe infirmities, material contradictions, exaggerations, significant improvements, major additions, deletions in testimony of PW14 render the prosecution version unacceptable regarding the complicity of accused persons in offences charged. The pieces of incriminating evidence and the evidence of material prosecution witnesses are not reliable, evidence not clinching nor suffice to reach no other conclusion but only of guilt of accused persons. Suspicion however grave it may be, cannot be a substitute of proof.
112. The prosecution has interalia failed to prove beyond reasonable doubt from legally admissible evidence that (1) A5 was controlling the affairs of Netaji Subhash Chandra Bose CGHS Limited from 1990 till 2004, after which he transferred the control of the society RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 105/107 CBI vs Yoginder Kumar etc to A4 in pursuance of their oral agreement; (2) A2 worked as tout for A1; (3) A1 demanded bribe of Rs 10 lakhs from A5 for helping him in criminal case which was subsequently reduced to Rs 8 lakhs or any part of the demanded bribe sum was paid by A5 to A1, whereas no recovery of any paid bribe sum has been effected from or at instance of any of the accused or even otherwise; (4) there was meeting of minds of arraigned accused persons for obtainment of illegal gratification/bribe by public servant accused A1 from private persons accused A3, A4, A5 as well as from PW14 with the aid of A2 and A6; (5) any conspiratorial acts or acts of abetment were done by any of arraigned accused persons making themselves liable for commission of offences charged; (6) any favour towards arraigned private persons accused was extended/offered to be extended by A1 in CGHS case(s) being investigated by A1; (7) A1 demanded bribe from PW14 and accepted sum of Rs 1 lakh as bribe from PW14 on 05/04/2006; (8) A6 received bribe of Rs 3 lakhs on 06/04/2006 from A4 on asking of A2 on behalf of A1 and (9) A3 paid Rs 1 lakh from his own pocket towards the booking amount of one plot out of four plots booked in the name of Rajinder Singh Gosai, A6, Smt Neelam and A2.
113. Inescapable conclusion on entire aforesaid discussion is that the prosecution has failed to prove its case against all arraigned accused persons beyond reasonable doubt. Accordingly all arraigned accused persons are held not guilty and acquitted for the offences charged. Their RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 106/107 CBI vs Yoginder Kumar etc bail bonds are cancelled. Sureties are discharged.
114. For want of requisite certificate of the Public Prosecutor of Central Bureau of Investigation in terms of Section 308 of Code of Criminal Procedure that the approver PW14 had violated the condition of the tender of pardon(a) by concealing anything essential, or (b) giving false evidence, at such examination under section 306(4)(a) of Code of Criminal Procedure; prosecution of the approver PW14 cannot be initiated for his trial.
115. A copy of judgment be given to the Central Bureau of Investigation free of cost.
116. Ahlmad is directed to page and bookmark the file so as to enable digitization of the entire record.
117. File be consigned to record room.
(Gurvinder Pal Singh) Announced in open court Special Judge (PC Act)(CBI)6, today i.e., 28/11/2014 Patiala House Court, New Delhi. Deepika RC No. 2A/2006/CBI/ACUI/NEW DELHI CC No. 30/12 107/107