Delhi District Court
Cbi vs Vinod Kumar Chauhan on 15 May, 2007
1 IN THE COURT OF SH. G P MITTAL SPECIAL JUDGE;
DELHI CBI Vs Vinod Kumar Chauhan RC No. 23 (A)/1995 CBI/ACB/N.D. C C No. 8/1996 Judgment A charge sheet for the offence punishable U/s 7 and Section 13 (2) r/w Section 13 (1) (d) of the Prevention of Corruption Act, 1948 was presented against the accused Vinod Kumar.
2 The accused was working as Junior Engineer in the Municipal Corporation of Delhi. In the year 1995 a complaint dt. 23.3.95 Ex PW 1/B was made by one Sri Gopal Gupta to the Superintendent of Police, Anti Corruption Branch that he was constructing his house at D- 136 New Rajinder Nagar, Delhi as per the plan sanctioned by Municipal Corporation of Delhi. However, in order to safe guard the windows from the sun and rain a sunshed on the second floor of the building measuring 2 feet x 3 feet has been constructed. The construction of the building was in progress. Sh. Vinod Kumar JE MCD, Karol Bagh Zone, 22 visited the site and demanded Rs. 3 lacs as bribe in order to allow him the construction of his house. In the morning on the said day he alongwith one of his employees visited his house and directed him to pay Rs. one lac (out of the demanded money) in his office on that day after 6 PM as the first instalment failing which his building would be demolished. He made a mention in his complaint that he was not interested in paying any illegal gratification and therefore, requested the Superintendent of Police, CBI, Anti Corruption Branch to take necessary legal action in the matter. FIR RC No.23 (A)/95 DLI (Ex PW8/A) was registered on the basis of the complaint and the investigation was entrusted to Dy. SP S K Peshin. According to the case of prosecution, Dy S P S K Peshin made necessary enquiries from the complainant. He called for other CBI officers and arranged two public witnesses from the office of Director General of Health Services. Pre trap proceedings were held; the complainant produced one bundle of 100 GC notes of Rs. 500/- denomination each; the reaction of phenolphthalein in sodium carbonate solution was explained and demonstrated to the complainant and the witnesses and a trap was arranged. The raiding party started from the CBI office at about 6 PM and reached the MCD office at Karol Bagh at about 6.45 PM. Independent witness Sh. Jai Parkash was directed to remain as close as possible to the complainant to hear the conversation and watch the transaction and to give the pre decided signal on completion of the transaction. At about 33 7.15PM the complainant and the shadow witness came out and informed Dy S P S K Peshin that accused Vinod Kumar had spoken to the complainant in the control room over the telephone in the control room and that the complainant had been directed to meet him (the accused) at the red light crossing of Shanker Road near Ganga Ram Hospital at about 8.20 PM on the same day.
3 It is the case of the prosecution that the trap party reached the spot at about 8 PM and took suitable position. At about 8.30 PM the accused came to the spot in his white Maruti Zen car No. DLI 4CD 1994 and stopped near the complainant. He opened the left front door and the complainant sat inside the car. After sometime independent witness Jai Parkash gave the pre decided signal. The trap party members alongwith the other independent witness rushed to the car of JE Vinod Kumar and apprehended him by the wrists of his hands. The accused was challenged that he had accepted bribe of Rs. 50,000/- from the complainant. The shadow witness and the complainant stated as to how the bribe of Rs. 50,000/- was accepted by the accused by his left hand and kept in the left side hip pocket of the jeans worn by the accused. Due to traffic jam accused was taken to Sethi Petrol Pump near Ganga Ram Hospital in the same position in which he had been held. On the direction of TLO Dy. SP S K Peshin, independent witness Sh. J D Dutta recovered the tainted money from the left side pocket of the 44 jeans worn by the accused. The number of the tainted GC notes tallied with the numbers mentioned in annexure A to the handing over memo. The washes of the left hand fingers and the inner lining of left side hip pocket of the jeans were taken separately in freshly prepared solution of sodium carbonate which turned pink. The washes were preserved in two separate bottles which were duly sealed with the CBI seal. All the proceedings were recorded in the recovery memo (Ex PW1/E) prepared at the spot. During investigation it was established that the area where the complainant was constructing his house was under the jurisdiction of accused Vinod Kumar JE. It was also found that the accused had sent Sh.Ashok Kuamr, Beldar to the house of complainant on 23.3.95 with direction to see the accused after 6 PM in his office alongwith the bribe money.
4 After obtaining sanction for prosecution, the challan was filed in the court.
5 Vide order dt. 15.7.02, a charge for the offence punishable U/s 7 and 13 (2) r/w Sec. 13 (1) (d) of the Act was framed against the accused. The accused pleaded not guilty to the charge whereupon the prosecution was required to produce its evidence.
6 In order to establish its case, the prosecution has examined as many as ten witnesses.
557 PW1 Sh. Sri Gopal Gupta is the complainant and the star witness of the prosecution. He deposed that property no. D-136 Shanker Road, new Rajinder Nagar was purchased by his wife, son and daughter in law from Smt. Vidhya Kumari Oberoi. At the time of the purchase, the sanction plan of the building was already approved. Before starting construction, he intimated to the MCD for carrying out the construction work. On 9.2.95 a notice of deviation was pasted on the wall of his house. On 14.2.95 he forwarded a request letter Ex PW1/A requesting to know the deviations. He was advised to come on alternative days. In the MCD office he met accused Vinod Kumar who was the Junior Engineer. He was advised to come on 13.3.95 He corroborated the averments made in the complaint Ex PW 1/B and deposed that he reached the CBI office on 23.3.95 at about 12.30 PM He discussed the matter with the SP for about 15 minutes. The SP called Sh. S K Peshin and handed over his complaint to him. The two independent witnesses arrived in the office at about 2.30 PM He then deposed about the details of the pre trap proceedings, laying of trap, acceptance of bribe of Rs. 50,000/- by the accused, recovery of bribe money and arrest of the accused. I shall deal in details with the evidence of the witness later on while analysing the testimony of the various witnesses.
668 PW 2 Sh. Chander Parkash Gupta was working as Dy.
Commissioner (CSE) in the Municipal Corporation of Delhi at the relevant time. He deposed that he was competent to appoint and remove officials from the post of Junior Engineer in the Building Department. He testified that he examined and perused the request received from CBI for grant of sanction and accorded sanction Ex PW 2/A for prosecution of the accused.
9 PW3 Sh. G D Dutta is one of the independent witnesses associated with the trap. He deposed that on 23.3.95 he and his colleague Jai Parkash reported to the CBI office. Mr. Peshin showed them the complaint made by Sh. Gupta. Sh. Gupta produced an amount of Rs. 50,000/- in the shape of currency notes of Rs. 500/- denomination. He deposed about the pre trap proceedings, preparation of handing over memo Ex PW1/D, and then reaching the Karol Bagh Office of MCD.
10 PW 4Sh. K L Chabra is the retired Senior Scientific Officer from CFSL He had examined the two sealed bottles containing the left hand wash and the left pocket wash of the jeans of the accused which had given positive test for phenolphthalein and Sodium Carbonate. He proved his report as Ex PW4/A. 77 11 PW4 A Sh. V K Bhatia (two witnesses were recorded as PW4) is the Asstt. Engineer from MCD. He was working as ZE Building in Karol Bagh Zone of the MCD in the year 1995. He is an important witness in the sense that he had signed the Show Cause Notice Ex PW 4/C on 9.2.95 and had passed the demolition order on 28.2.95 and proved the same as Ex PW4/E. The witness deposed that as JE the duty of the accused was to detect unauthorized construction and take necessary steps to stop the same. It was his duty to lodge an FIR and issue notice to show cause after getting the orders of the ZE concerned. During cross examination, the witness deposed that accused Vinod Kumar Chauhan was transferred and posted in Karol Bagh Zone in February, 1995. He stated that perhaps Umesh Parasher was the predecessor of the accused. FIR Ex PW1/DA was lodged by the accused on 9.2.95. Show Cause Notice Ex PW4/C was also prepared by the accused on 9.2.95 and was signed by him at point B. He deposed that he passed Demolition Order Ex PW4/E after considering the reply Ex PW1/A of the owner. He admitted that a vigilance enquiry was conducted against Sh. Umesh Parasher who had granted Form C and D pertaining to property in question.
12 PW5 Sh. Jai Parkash is the shadow witness, as per the case of the prosecution. He deposed that on 23.3.95 he alongwith Mr. G D Dutta went to the CBI office in the evening. They met Mr. 88 Peshin, CBI Officer. One Mr. Gupta produced a bundle of Rs. 50,000/- consisting of G. C notes of Rs. 500/- each. The number of those GC notes were not recorded as they all were in a hurry. The GC notes were treated with some white powder to demonstrate the reaction of phenolphthalein with the solution of Sodium Carbonate. The treated notes were handed over to Sh. Gupta (complainant) and he was directed to remain close to Mr. Gupta and to hear the conversation which may take place between the complainant and the accused. He proved the memo Ex PW1/D regarding the pre trap proceedings. He deposed that they left CBI office at 6.15 PM and reached Karol Bagh Office at about 8/9 PM. Mr. Gupta went to the Control Room whereas he remained outside. Mr. Gupta might have talked to Vinod Kumar and informed them that the accused would come near the gate of Ganga Ram Hospital. The witness added that at the gate of Ganga Ram Hospital, one car came. Mr. Gupta opened the left front side gate and sat inside the car on the rear seat. He was standing at a distance of 8 to 10 feet from the car and could not hear conversation between Mr. Gupta and Vinod kumar. He testified that he had not given any signal. The car moved about 10 metres. All the members of the CBI team rushed to the car and pushed out Vinod Kumar. There was a scene of beating (Marpeet). Clothes of Vinod Kumar were torn and he suffered some injuries on his face. He testified that the complainant did not tell anything to the raiding party. Mr. Peshin also did not tell anything to the accused as to why he has been arrested. A 99 crowd gathered there and the accused was taken to the nearby Petrol Pump. Search of the accused was conducted and some money was recovered from the purse of the accused. The witness was allowed to be cross examined by the Ld. Sr. PP. He denied the suggestion that he reached the CBI office at 3.15 PM and not at 6.15 PM. He also denied that he and the complainant had gone inside the control room. He denied that he was standing at the door of the car and heard the conversation between the accused and the complainant. He was confronted with the various portions of his statement Ex PW5/A recorded U/s 161 Cr PC. During cross examination on behalf of the accused the witness admitted that they had received written order from Dy. Director, Administration to go to the CBI. He stated that the order was received at 5.45 PM and copy of the order was proved as ExPW5/DA. He stated that they were picked up from their office after about 20 minutes of receipt of order.
13 PW5A Anil Parkash (two witnesses have been examined as PW5 in the year 2004 and I have given the number 5 A to the second witness examined as PW5) was posted as Executive Engineer (Co-ordination) at the relevant time. He disclosed the duty of Junior Engineer (Building) and corroborated the testimony of PW4 A Sh. V K Bhatia regarding the duties of Junior Engineer.
101014 PW6 Sh. Shyam Kumar was posted in the control Room on 23.3.95 and was on duty from 2 PM to 10 PM. He deposed that on the said day at about 7/7.30 PM a telephone call was received from accused Vinod Kumar. He asked for the PA to Addl. Dy. Commissioner and he informed Vinod kumar that all the offices had been closed. The witness added that one person had come to their office about half an hour before the telephone call. He was asking for Vinod Kumar. When the call of Vinod Kumar came the said person was outside his office. In the meanwhile, a call on his wireless set came which was attended by him. The said person entered the control room. When the said person picked up the phone it had already been disconnected. During cross examination the witness stated that his statement Ex PW6/DA which bears his signatures at point A was obtained in CBI office at Lodi Road. The Hindi Writing Ex PW6/DA was in his hand and English writing was of the CBI officer.
15 PW7 Ashok Kumar was examined by the prosecution to prove the demand of bribe by the accused through this witness on the morning of 23.3.95. The witness however, did not support the prosecution version and was allowed to be cross examined by the Ld. Sr. PP. In cross examination the witness stated that his 1111 statement was recorded by Dy. S P S K Peshin on 4.4.95. He denied the suggestion that on 23.3.95 at 8 AM he had been sent by accused Vinod Kumar to the house of Gopal Gupta to meet accused Vinod kumar at 6PM on that day with Rs. one lakh. During cross examination the witness stated that his statement Ex PW7/DA is signed by him at point A. 16 Sh. S K Peshin who was the trap laying officer entered the witness box as PW8. He stated that one Sri. Gopal Gupta had made a complaint Ex PW1/B to the SP. He proved endorsement at portion B in the hand of Sh. R K Dutta, SP, CBI. He stated that FIR Ex PW8/A was registered on the basis of the complaint by the SP. He then deposed about constituting a trap team, joining two independent witnesses, conducting the pre trap proceedings and ultimately laying of the trap and apprehension of the accused, recovery of bribe money of Rs.50,000/- and completion of various other formalities. This witness was cross examined at length in order to show that there were changes in the statement of the witnesses recorded U/s 161 Cr PC, in the recovery memo and various other documents which had fallen in the hands of the accused to the one which had been filed on the judicial record of the case. In order to avoid the repetition I shall be dealing with the cross examination at the time of appreciating the arguments raised on behalf of the defence.
121217 On close of the prosecution evidence, the accused was examined U/s 313 Cr PC The accused denied that he had demanded any bribe of Rs. 3 lakh from Sri Gopal Gupta on 23.3.95 or that he had accepted bribe of Rs. 50,000/- regarding any unauthorized construction in house No. D-136 New Rajinder Nagar. The accused explained that as per municipal record Smt. Ved Kumari Oberoi was the owner of the building. He stated that on 9.2.95 he detected unauthorized construction in D 136 New Rajinder Nagar. He prepared a FIR and got it approved and signed from Sh. V K Bhatia, ZE, MCD. He served the Show Cause Notice on the owner/builder on 13.2.95. A reply dt. 14.2.95 was submitted by one Anil Gupta in MCD office on 15.2.95. The reply addressed to ZE, MCD was marked to him on 23.2.95. On 29.2.95, he recommended for demolition of unauthorized construction in the building and put up the file before ZE (Building) MCD on the same day. On 28.2.95,ZE (Building) passed Demolition Order. He stated that Sri Gopal Gupta had lodged a false complaint Ex PW1/B with the CBI. The complainant was previously known to Dy. SP S K Peshin. The accused took up the plea that his wife was seriously ill and admitted in Sir Ganga Ram Hospital. He had been visiting the hospital to see his ailing wife and used to return the same way and this fact was known to all of his colleagues including JE Umesh Parashar at whose instance he was framed in this case. Accused further stated that at the time of the incident he was 1313 suddenly gherraoed by 4/5 persons. He was manhandled and physically beaten by Dy. SP S K Peshin and was falsely implicated in the case. The accused also added that Dy. SP S K Peshin had given false and fabricated evidence to prosecute him and to have his conviction by hook or by crook. He has already moved an application U/s 340 Cr. PC which is pending in this court. The accused showed his willingness to produce evidence in defence.
18 The accused examined 4 witnesses in his defence. DW1 Hari Chand, record keeper from the Vigilance Department of the MCD deposed that Sh. K C Sharma was the investigating Officer in relation to a Vigilance Enquiry in which statement of JE Vinod Kumar was recorded on 21.3.95 and 23.3.95. DW 3 Sh. Guru Dutt Sharma was working as Asstt. Director Vigilance from July, 1994 to September, 1997. He also stated about recording of the statement of Vinod Kumar (accused) on 23.3.95. He stated that as per the noting on page 15 C of the file, Sh. Vinod Kumar had been directed to appear for his statement on 23.3.95 at 10AM 19 DW2 Sh. Avinash Kumar Tyagi claims himself to be present with the accused on 23.3.95 at 10 A M He stated that the accused met the Vigilance Officer on that day at that time. He stated that on that day they were together in demolition in 1414 WEA, Karol Bagh Area which continued upto 7 PM. They reached Ganga Ram Hospital at 7.30/7.40 PM and remained in the hospital for about half an hour. They left for their house together in his car. When they reached near Petrol Pump on hospital road, their car was stopped by some persons. The persons numbering 5-7 dragged them outside the car. He deposed that when he resisted their move they informed that they were CBI people and it would be in his interest not to interfere. The witness stated that he reached his home and informed the Senior Officers on telephone. The accused examined DW 4 Sh. Prem Nath Malhotra, Senior Medical Record Officer, from Ganga Ram Hospital to prove that Mrs. Rekha wife of Vinod kumar r/o D 16 Preet Vihar was admitted in Ganga Ram Hospital w.e.f 13.3.95 to 21.4.95. DW5 Sh. Vijay Dutt Sharma was examined by the accused to prove a certified copy of the newspaper report dt. 19.1.96. The said copy with the caption "CBI Official prevented MCD from demolition" was proved as Ex DW5/A 20 I have heard Sh. Rajesh Malhotra Sr. PP for CBI and Sh. S P Minocha advocate on behalf of the accused and have perused the record.
151521 It has been urged by the Ld. Public Prosecutor that the prosecution has examined the complainant (PW1) who is supported by the recovery witness G D Dutta (PW3), TLO Sh. S K Peshin (PW8). It is contended that the shadow witness Jai Parkash ( PW5) has not fully supported the case of the prosecution but has admitted pre trap proceedings and his signatures on the recovery memo Ex PW 1/A. His evidence regarding recovery of the bribe money can be considered as the same gets corroboration from other witnesses examined by the prosecution. It has been urged that some minor contradictions and discrepancies do occur in every case but these do not affect the truth and the genuineness of the case of prosecution. Thus, it is argued that demand and acceptance of illegal gratification by the accused has been proved by the prosecution and the accused is liable to be convicted.
22 On the other hand, it has been urged by the Ld. Defence Counsel that there are three types of witnesses i.e. wholly reliable; wholly unreliable and partially reliable. In the case of a partially reliable witness the court has to take into consideration the circumstances of the case and to form an opinion that he is reliable in respect of a particular part. Such a witness can not be believed in respect of part of his statement unless he is corroborated by some independent reliable evidence.
161623 I find sufficient substance in the submissions raised by the Ld. Defence counsel It is well settled law that evidence of a hostile witness does not get excluded or rendered unworthy of consideration simply on the ground that a witness has been cross examined by the prosecution or has been declared hostile. Yet, part of statement of such a witness can be relied upon which is corroborated by independent reliable evidence and thus inspires confidence.
24 It has been urged by the Ld. Defence Counsel that the occurrence has not taken place in the manner as alleged by the prosecution. It is established from the evidence led by the prosecution that the pre trap proceedings and handing over memo had not been prepared in the CBI Office before starting for the raid; the trap laying officer has fabricated evidence which shows that the investigation is tainted; the circumstances of the case would show that there was no motive nor any opportunity to the accused to demand any bribe. On the other hand, there was motive on the part of the complainant to falsely implicate the accused.
25 I shall be dealing with the contentions raised one by one. 26 It has been submitted on behalf of the accused that as per the case of the prosecution appearing from the complaint Ex 1717 PW1/B, the accused who was Junior Engineer in MCD, Karol Bagh Zone has visited the site (on 23.3.95) on the date of making the complaint and demanded Rs. 3 lakhs as bribe in order to allow the complainant to construct the house. Out of the bribe amount, a sum of Rs. one lakh was instructed to be paid to the accused after 6 PM. A perusal of the testimony of the complainant as PW1 would show that he reached the office of CBI at 12.30 PM. He talked to the S.P. who called Sh. S K Peshin. Sh. Peshin took the complainant to his room. He called three CBI officers. After one hour two more persons namely Sh. Jai Parkash and Sh. G D Duitta entered the room. They went through the complaint made by the complainant; asked certain questions to satisfy themselves about the complaint. He produced Rs. 50,000/- consisting of 100 GC notes of Rs. 500/- denomination each. Their numbers were noted down on annexure A; demonstration of reaction of phenolphthalein with Sodium Carbonate was done; handing over memo Ex PW 1/D was prepared before the trap team left for the MCD office, Karol Bagh Zone.
27 Sh. S K Peshin, TLO, corroborates the complainant and gives a specific time 3.30 PM when the two independent witnesses reached his room. However, as per statement of PW5 Sh. Jai Parkash, the number of GC notes were not recorded as they were in a hurry. During cross examination by the Ld. Public 1818 Prosecutor the witness denied that they had reached CBI office at 3.15 PM. He even denied that they had left CBI office at 6.15 PM. This witness was declared hostile by the prosecution. The question is whether this witness is telling a lie in this regard? Let me advert to the other evidence adduced by the prosecution. Another important witness in respect of the entire proceeding is PW3 Sh. G D Dutta who is a colleague of PW5 Sh. Jai Parkash. It is not only that PW 5 had stated about the written orders issued by his superior officers to join the CBI party but PW 3 Sh. G D Dutta also categorically stated that Sh. Jagdeo Lal, Dy. Director, (Administration) had given them written instructions to join raiding party of CBI. He admitted that as per direction they were directed to remain in office as they were to be picked up by the CBI officials from their office. He admitted that the order to join (raid) was received in the evening. He however, could not say if the order was received at 5.45 PM. In cross examination of PW5 Jai Parkash, on behalf of the accused, the office order to join the CBI was proved as Ex PW5/DA. A perusal thereof would show that the said order was received by PW5 Sh. Jai Parkash at 5.45 PM. It may be argued on behalf of the prosecution and is just possible that PW5 Jai Parkash may have manipulated the endorsement of time on Ex PW5/DA. But the fact remains that even PW3 Sh. G D Dutta also corroborates PW5 that the order was received in the evening. The order also shows that the officials were to be picked up by the CBI. Thus, one thing is sure that even if the orders were not received at 1919 5.45 PM it was in any case not received at a time to allow such time to PW3 and PW5 to reach CBI office at 3.15/ 3.30 PM which is the version of Sh. S K Peshin, TLO. Thus, the version of PW5 Sh. Jai Parkash that they were in a hurry and that the number of the currency notes were not noted down on annexure A before leaving MCD Office, Karol Bagh cannot be easily brushed aside.
28 A perusal of the complaint Ex PW1/B would reveal that there is no mention that Ashok Kumar, Beldar had approached the complainant at his house at 8.30 AM to convey the message of the accused that the complainant should see the accused alongwith the bribe of Rs. one lakh in the office after 6 PM . Complainant Sri Gopal Gupta as PW1 make a material improvement in the case when he deposed in the court that Beldar Ashok Kumar had come to his residence at 8.30 AM and told him that as per message of accused Vinod Kumar he (the complainant) had to reach the MCD office at about 6 PM alongwith a minimum amount of Rs. one lakh. If this had really happened it must have been recorded in the complaint Ex PW1/B, this being a very important event. Since this does not find mention in the complaint Ex PW1/B and this part of the case of the prosecution has not been supported by PW7 Ashok Kumar, this shall have to be treated as a padding in the case of the prosecution for the success of the case.
202029 Now I shall turn to the recovery memo Ex PW1/E. On page 2 of the recovery memo the sentence in the fifth line reads " Out of two CBI vehicles i.e. Gypsy No. DL 3C F 3141 and Mahindra Jeep No. RNL 2359 were parked at safe distance......" Similarly, the time of completion of the proceedings in Ex PW1/E on the last page has been mentioned as 10 PM. Photo copy of the recovery memo Ex PW1/DA was admitted by TLO Sh. S K Peshin. A perusal of Ex PW1/DA would show that number of the Gypsy is left blank and the proceedings are shown to have been completed at 11 PM. Explanation of Sh. S K Peshin regarding this discrepancy was sought during cross examination. He tried to give an explanation that the number of the Gypsy might have been erased by some manipulation. However, he could not deny that there was an overwriting in mentioning the figure 10. A bare perusal of the recovery memo Ex PW1/E filed by the prosecution would show that the number of Gypsy had gone beyond the blank space and over written the letter "&" (and). Similarly, the "0" (zero) of the figure 10 has been changed to figure 1. This would create a grave doubt in the case of the prosecution if the recovery proceedings were recorded at Petrol Pump as alleged by the prosecution or somewhere else. The reason for changing the time from 11 PM to 10 PM as pointed out by the Ld. Defence Counsel could be that after the trap the 2121 search of the house of the accused at Preet Vihar was started by Sh. S K Peshin and it must take 30 to 40 minutes in reaching Preet Vihar from Rajinder Nagar. Be that as it may the investigation becomes tainted in view of the over writing and leaving the blank space of the number of the vehicle particularly when no plausible explanation has been given by the prosecution for the same.
30 Then, there are two statements U/s 161 Cr PC of PW 7 Ashok Kumar. Though, PW 7 Ashok Kumar disowns the said statement. However, a perusal of the statement Ex PW8/DB on which the prosecution relies what is attributed to Ashok Kumar is that he told the complainant to see the accused in his office after 6 PM with an amount of Rs. one lakh. Ex PW8/DB is a typed statement. However, the hand written statement Ex PW8/DA recorded by Sh. S K Peshin and bearing his signatures and admitted by him would reveal that the amount as mentioned is Rs. 3 lakhs instead of Rs. one lakh. The explanation given by Sh. S K Peshin is that initially he had recorded the statement when the amount of bribe was mentioned as Rs. 3 lakhs. He stated that when the witness went through the statement he stated the amount to be Rs. one lakh. Sh S K Peshin explained that he called the typist and got the statement typed. This was not the end of the matter. The cat was out of the bag when Sh. S K Peshin on further questioning informed that this factum of 2222 Rs. one lakh as stated by the witness was not mentioned in the case diary.(The amount as mentioned in the case diary is Rs 3 lakh) To say the least this would show that the investigations were not only unfair but were tainted. The explanation given by the IO is far from being satisfactory. Recording of two different statements with two different amounts of demand of bribe would be indicative of the fact that the story was being invented to support the case of the prosecution.
31 Statement of the complainant Ex PW1/DC was recorded U/s 161 Cr PC by Sh. S K Peshin. He admitted that there is cutting/overwriting on the date mentioned at the top of the statement. Sh. Peshin admitted that at page two of the statement there is an overwriting in mentioning the amount of Rs. one lakh. He admitted that two zeros have been put in ink on some typed matter and letter "s" has been struck off. He admitted that this correction did not bear his signatures at point Y. Sh. S K Peshin was confronted with his report dt. 13.4.95 Ex PW8/DX3 where the amount of bribe demanded is mentioned as Rs. 50,000/- against Rs. one lakh which is the case of the prosecution. Strangely enough this discrepancy never came to the notice of Sh. S K Peshin, TLO, IO of the case or the SP of the Branch who received this report.
232332 This is not the end of the matter. There are two statements U/s 161 Cr PC of the complainant. One is Ex PW1/DC and the other is Ex PW1/DB. Both purport to be recorded by the TLO on 25.3.05. Apart from the discrepancy in the amount of the bribe money it is recorded in Ex PW1/DB which is claimed by the IO to be the draft of the statement that "you" (meaning thereby the TLO) took away Vinod Kumar alongwith witnesses to your office whereas in Ex PW1/DC what is recorded is that "
thereafter you left with Sh. Vinod Kumar and the witnesses".
The TLO was part of the raid as well as search of the residential house of the accused. Therefore, this discrepancy could not have occurred in the statement of the complainant. It seems that the version was changed by Sh. S K Peshin to explain the search at the house of the accused which was conducted on the same night. It is indicative of the fact that TLO was out to manipulate any statement which could suit the stand of the prosecution. Sh. S K Peshin was unable to give the name of the stenographer who had typed the statements when he was questioned on this aspect.
33 Admittedly, there are two sets of statements U/s 161 Cr PC of PW3 G D Dutta and PW5 Jai Parkash. The prosecution relied upon the statements Ex PW3/DA. The TLO S K Peshin admits his signatures on the last page of the photo copy of the statement Ex PW8/DX1. Page 3 of these two statements are 2424 different. The last two words on page 3 of the photo copy Ex PW8/DX1 makes sense and connects nicely with page four. This will again create a doubt that page 3 of the statement of this witness may have been replaced and the story of calling of employee of Petrol Pump was introduced in the changed version Ex PW3/DA. This discrepancy in the two statements of PW5 Sh. Jai Parkash Ex PW5/A (relied upon by the prosecution) and photo copy Ex PW8/DX2 filed by the accused last page thereof has been admitted by the TLO is most striking in as much as on page 3 of the statement Ex PW5/A the last line has ended just after six words. This would create a strong doubt that page 3 of the statement Ex PW5/A may have been changed by the TLO subsequently.
34 There is a photo copy of the writing which was proved as Ex PW8/DX by the TLO. He admitted that this writing was in his handwriting. This is the alleged conversation between the complainant and the accused which finds mention in the statement U/s 161 Cr. PC of the complainant and independent witness Jai Parkash. Though, the TLO denied this conversation was creation of his imagination yet the TLO could not give any reason as to why the conversation was recorded on a separate sheet. The argument raised on behalf of the accused and the case put by him that the conversation was the figment of the 2525 imagination of the TLO and was introduced by him, thus, appears to be probable.
35 A photo copy of the statement of PW6 Shyam Kumar duly signed by him was admitted by him during his cross examination as PW6/DA (the documents bears the exhibit as Ex PW6/A) PW6 Shyam Kumar says that his signatures were obtained on his statement in CBI office. He also added that the Hindi writing on Ex PW6/DA was in his hand whereas the English writing was in the hand of the CBI officer. Of course, the TLO Sh. S K Peshin denied having obtained the said statement from PW Shyam Kumar but in the circumstances of the case it cannot be ruled out that the statement might have been obtained by the CBI Officer as there was no reason for PW6 Shyam Kumar to tell a lie in this regard.
36 One of the important pieces of evidence which is normally collected in trap cases under the Prevention of Corruption Act is the hand wash or the wash of the article where phenolphthalein treated money was kept by the accused. It was done in this case as well. According to the case of the prosecution hand wash of the left hand of the accused and the wash of the inner lining of the left back pocket of the jeans of the accused was also taken which had turned pink in the colourless solution of Sodium 2626 carbonate. Apart from the CBI officers, PW3 Sh. G D Dutta and PW1 complainant Sri Gopal Gupta have supported the prosecution story in this regard. Of course, PW5 Sh. Jai Parkash did not say if colour of freshly prepared Sodium Carbonate solution had turned pink or not. It may said that he is telling a lie as he is a hostile witness. Yet, it was the duty of the prosecution to establish that the sealed bottles had remained intact till the same were examined by PW4 Sh. K L Chabra, Senior Scientific Officer, CFSL. TLO is unable to say as to whether he had sent the bottles for examination or his successor had sent the same. Moharrar Malkhana has not been examined to complete the chain of link evidence. Though, the absence of this link evidence may not be very material where there is reliable evidence produced by the prosecution regarding post trap proceedings and turning of Sodium Carbonate solution to be pink when the fingers that touched the tainted money is dipped therein. But, in this case, looking into the conduct of TLO Sh. S K Peshin it would be difficult to rely upon the evidence that the washes had given positive test for phenolphthalein and Sodium Carbonate.
37 A perusal of the site plan Ex PW3/C would reveal that Van of the complainant bearing No. DL 8C 4054 was parked on the left side of the road whereas Maruti Zen car bearing No. DL 4CD 1994 has been shown by the side of Maruti Van by the letter Z. 2727 The shadow witness is stated to be standing at point S in between the van and Maruti Zen. As per the story of the prosecution the complainant had entered Maruti Zen of the accused to hand him over the tainted money. It is against normal human conduct that the second vehicle would stop by the side of the said vehicle on a busy road leaving some space in between specially for the purpose of passing of illegal gratification and blocking the entire traffic going to a particular direction.
38 The accused had examined five defence witnesses mainly to show that no demand of illegal gratification could have been made by him from the complainant on 23.3.95 at 10 AM as he was present before Senior Investigating Officer in the MCD office at Rajpur Road, Delhi. It is true that a defence witness has to be given equal treatment as is to be given to the prosecution witness. Of course, a statement dt. 23.3.95 of accused Vinod Kumar is available in the Vigilance file of MCD but in the absence of the note as to at what time and when the statement of accused Vinod Kumar was recorded it would be difficult to say that the accused was present in MCD office at Rajpur Road on 23.3.95 at 10 AM It would be a different matter that it is improbable that the accused would first send a class IV employee at 8.30 AM to ask the complainant to reach his office with the bribe after 6 PM and thereafter would 2828 himself go to the complainant at 10 AM to repeat the demand. A public servant asking a person to come to him to pay the bribe would try to keep it a secret if he can. Thus, it would also be improbable that Ashok Kumar PW7 was sent by the accused to convey his demand of illegal gratification particularly when the same has been denied by PW 7 Ashok Kumar and does not find mention in the complaint Ex. PW 1/A. 39 In view of the foregoing discussion I am of the view that the trap and investigation conducted by TLO Sh. S K Peshin were tainted and the TLO wanted to prove the case by any means. In state of Andhra Pradesh Vs Punati Ramulu, 1994(3) C.C.Cases 6 (SC) it was observed by the Hon'ble Supreme Court that it would be unsafe to rely upon the tainted investigation as one would not know where the police officer would have stopped to fabricate evidence and create false clues. I am of the opinion that prosecution has failed to establish its case against the accused beyond reasonable doubt. The accused is therefore, acquitted. Records be consigned.
Announced in open court (G P MITTAL)
Today on 15 May, 2007
th
SPECIAL JUDGE DELHI