Delhi District Court
Cbi vs . D.K. Srivastava, on 8 November, 2013
IN THE COURT OF MANOJ JAIN: SPECIAL JUDGE (PC ACT) (CBI) SOUTH DISTRICT: SAKET DISTRICT COURTS NEW DELHI CC No. 51/2011 RC-4(A)/2006/ACU-IV U/s 7, 13 (2) r/w 13 (1) (d) of PC Act (Case UID No. 02406R0746622006) CBI Vs. D.K. Srivastava, S/o Sh. Kaushal Kishore Srivastava, Resident of 62-B, CBI Colony, Vasant Vihar, New Delhi. i) Date of Institution : 11.07.2006 ii) Date on which case was received on Transfer by this Court : 30.11.2011 iii) Date of framing of charge : 07.11.2007 iv) Date of conclusion of arguments : 30.10.2013 v) Date of Judgment : 08.11.2013 Memo of Appearance Sh. A.K. Dutt, learned Special Public Prosecutor for CBI Sh. Harsh Kr. Sharma, learned defence counsel JUDGMENT
PROSECUTION STORY 1.0 One Preliminary Enquiry i.e. PE-13(A)/2004/ACB/CBI/Delhi was registered by CBI against one Rajiv Sharma (complainant herein) and some other suspects in connection with procurement of compressors by M/s Indraprastha Gas Limited (IGL) from M/s Galileo Limited. Initially, SI Lalit Kaushik had been conducting such enquiry which was eventually entrusted to Insp. A. Sathiamoorthy on 01.09.2005.
1.1 In connection with such enquiry, suspect Rajiv Sharma attended CBI office on few occasions. He met Insp. Sathiamoorthy on 12.04.2006 as well. Accused D.K. Srivastava was at that time posted as Deputy Legal Advisor (DLA) of CBI/ACB/New Delhi. Being DLA, he also came to be officially associated with such enquiry. As per instruction of accused, Insp. A. Sathiamoorthy brought and introduced Rajiv Sharma to him in his chamber. Accused discussed the matter about such enquiry with him and asked him to meet him alone beyond the office hours. It would also be important to mention that during such meeting, accused also told Rajiv Sharma that there was nothing in the enquiry but since matter had been referred to CBI by Ministry of Petroleum & Natural Gas, they were supposed to be very careful. He also assured Rajiv Sharma that everything was in his hands and he would see as to what could be done in the matter.
1.2 On 16.04.2006 at Resto Cafe of Hotel Vasant Continental, Vasant Vihar, accused made demand of Rs. 5 lacs from Rajiv Sharma for Insp. A. Sathiamoorthy. Rajiv Sharma was shocked to hear such demand of bribe. However, he quickly recomposed himself and sought sometime to arrange for the money.
1.3 Insp. A. Sathiamoorthy also separately professed that everything was rather in his own hands. Rajiv Sharma started to realize that these officers were trying to extract money from him and since he felt that he had not committed anything wrong, there was no point in yielding to such illegal demands and he accordingly thought of recording conversation and started recording the same as well.
1.4 Accused visited residence of Rajiv Sharma on 05.05.2006 when he again guaranteed that he would take care of such preliminary enquiry and, during conversation and at request of complainant, he reduced bribe-demand by Rs. 1 lac and also told to pay such amount to him alone as there was no point in dealing with Insp. A. Sathiamoorthy.
1.5 On 11.05.2006, accused told Rajiv Sharma that he would come to his residence in the evening. Since Rajiv Sharma did not want to pay bribe to anyone, he, same day, contacted CBI with a written complaint.
1.6 A case was registered and was entrusted to Sh. Rohit Kapoor, DSP for investigation. Independent witnesses were also requisitioned through Directorate of Education, Govt. of NCT of Delhi. Trap team assembled at a neutral place i.e. Ten Guest House, Sunder Nagar, New Delhi at about 2.30 PM same day. Independent witnesses were briefed about everything and they even heard recorded conversation produced by Rajiv Sharma which revealed demand of bribe by accused. Rajiv Sharma also, as directed, produced bribe money of Rs. 4 lacs. Such notes were treated with phenolphthalein powder and procedure of chemical reaction of such powder with sodium carbonate solution was explained and demonstrated at Ten Guest House. Such smeared GC notes of Rs. 4 lacs were put in a white polythene bag and such bag, which too was treated with phenolphthalein powder, was handed over to complainant Rajiv Sharma with instruction to hand over the same to accused on specific demand. Complainant was also given one new and blank COBY Digital Voice Recorder for recording spot-conversation.
1.7 Complainant's house was located at second floor i.e. top floor in Vasant Kunj. Rohit Kapoor also decided to make additional arrangement to overhear the conversation on real time basis and accordingly electronic gadgets were fitted at the residence of Rajiv Sharma to hear and record conversation. One microphone was given to complainant Rajiv Sharma and its receiver was mounted on the roof of the house connected with CINEX Digital Recorder. Insp. N.K. Mishra and independent witness Sh. Tomar were asked to stay atop the roof to overhear the conversation. Complainant was also asked to give specific signal by saying "special dinner karenge" once the bribe was accepted by accused. IO Rohit Kapoor, Insp. R.G. Mishra and another independent witness Sh. Upadhayaya took appropriate positions at ground floor from where entrance of house was visible.
1.8 At about 8.00 PM, accused was found entering the house of complainant. Wife of complainant opened the door and informed complainant about the arrival of accused. Complainant switched on COBY Digital Recorder and entered the drawing room where accused was present. He offered beer to accused as in the earlier meeting also, accused wanted to have beer. After the initial reluctance, accused agreed to have beer. During talks, complainant informed accused that he had arranged Rs. 4 lacs and when accused asked for the same, complainant went to his bedroom and brought the same white polythene bag containing Rs. 4 lacs and handed that over to accused who accepted the same. Accused, however, asked him to bring one more empty polythene bag and accordingly complainant brought one more polythene bag in which accused put the white polythene bag containing bribe money. When they both started moving towards exit door, complainant uttered pre-decided signal. They both then reached ground floor via stair-case.
1.9 In the meanwhile, CBI team surrounded accused. Accused was brought back to the same drawing room of the complainant. Tainted money was recovered from him. Solution of sodium carbonate was prepared and when accused was asked to dip his right hand fingers therein, solution turned pink. Complainant also confirmed demand and acceptance of bribe. Recorded conversation also confirmed the same. After necessary investigational proceedings, accused was arrested.
1.10 Further investigation was carried out by Sh. Rishi Prakash, Addl. SP and charge-sheet was filed against the accused.
COGNIZANCE AND CHARGES 2.0 Charge-sheet was filed in the Court on 11.07.2006.
2.1 Sanction for prosecution was accorded by Central Government and sanction order dated 25.07.2006 was authenticated by Sh. V.L. Kantha Rao, Director, DOPT, Government of India by order and in the name of the President of India.
2.2 Such sanction was also placed on record by CBI through its Prosecutor and cognizance was taken by the Court on 18.08.2006 for commission of offences u/s 7&13 (2) r/w Section 13 (1) (d) of Prevention of Corruption Act 1988.
2.3 Accused was ordered to be released on bail vide order dated 24.08.2006.
2.4 Arguments on charge were heard and vide order dated 06.11.2007, accused was ordered to be charged for offences u/s 7&13 (2) r/w Section 13 (1) (d) of Prevention of Corruption Act 1988.
2.5 Charges were accordingly framed on 07.11.2007 and accused pleaded not guilty and claimed trial.
WITNESSES FOR PROSECUTION 3.0 Prosecution was directed to adduce evidence and has examined seventeen witnesses in support of its case.
3.1 Witnesses can be categorized as under:-
(i) Spot Witnesses:-
PW1 Rajiv Sharma (complainant).
PW6 R.S. Tomar (independent witness).
PW11 Rohit Kapoor (DSP).
(ii) Witnesses related to Preliminary Enquiry:-
PW2 Insp. A. Sathiamoorthy.
(iii) Bank Officials:-
PW4 Sanjay Malhotra, UTI Bank Vasant Kunj Branch (where complainant Rajiv Sharma was having his account).
PW5 Anuj Thapar, HDFC Bank, Vasant Vihar Branch (where complainant Rajiv Sharma was having his account).
PW12 Vineet Sharma, ICICI Bank (for proving statement of credit card issued in the name of complainant Rajiv Sharma).
(iv) Witnesses related to investigation:-
PW8 Digamber (in whose presence specimen voice sample of complainant was taken).
PW9 Avinash Jha (independent witness in whose presence specimen voice sample of complainant Rajiv Sharma was taken).
PW10 Yogendra Singh, Senior Scientific Officer who had taken specimen fingerprints of accused.
PW13 Mukesh Dutt Sharma, official of Jaypee Vasant Continental.
PW7 V.K. Kantha Rao, for proving sanction.
PW17 Addl. S.P. Rishi Prakash (I.O.)
(v) Experts PW14 V.B. Ramteke, Chemical Examiner, for confirming presence of phenolphthalein and sodium carbonate.
PW15 S.K. Chadha, for proving chance-prints as that of accused.
PW16 Deepak Tanwar, Expert who had carried out auditory examination of questioned voices and specimen voices.
STATEMENT OF ACCUSED AND DEFENCE WITNESSES 4.0 Statement of accused u/s 313 Cr.P.C. was recorded in which he pleaded innocence and claimed false implication.
4.1 He out-rightly rejected that he was ever involved with any such preliminary enquiry. He claimed that concerned SP had sent the file to him merely for marking the same to some Prosecutor for preparation of FR-II and initially it had been marked to Sh. Pandey who sent back the file to him since he was preoccupied and thereafter he marked the file to another Prosecutor i.e. Smt. Neelam Singh.
4.2 He claimed that he had never made any demand and complaint was false and motivated. He did admit that he had gone to the house of complainant on the fateful day i.e. 11.05.2006 and also did admit that he consumed liquor but denied that he had demanded any bribe or accepted any polythene bag containing bribe amount of Rs. 4 lacs. He also denied questioned voice as his voice. He also filed a detailed written statement u/s 313 (5) Cr.P.C.
4.3 He claimed that he was falsely implicated in the present matter by complainant, TLO and IO. He also pleaded that he was having impeccable record during his entire service career and was always graded as 'outstanding' prior to the registration of present case and even after his reinstatement.
4.4 Accused also examined two witnesses in his defence i.e. DW1 Maharaj Singh (otherwise a prosecution witness) and DW2 Sumit Kumar Srivastava (brother of accused).
RIVAL CONTENTIONS 5.0 Sh. A.K. Dutt, Ld. Special PP for CBI has very humbly submitted that prosecution has been able to prove its case to the hilt. Learned SPP has, at the very outset, contended that the contents of the complaint would go on to show that accused was aspiring for something huge as besides the bribe of Rs. 4 lacs, he also wanted one flat in Vasant Kunj to be arranged by complainant Rajiv Sharma which shows the enormity of the matter.
5.1 He has argued that being Deputy Legal Advisor, accused was exercising complete control over his prosecutors and also was responsible for the proper prosecution of the files marked to them. He has contended that Preliminary Enquiry i.e. PE-13(A)/2004/ACB/CBI/Delhi had been registered by CBI against Rajiv Sharma (complainant herein) and some other suspects and FR-I (closure report) was filed by the concerned Investigating Officer. Right from inception when PE file was produced before him for the first time, accused knew the nitty-gritty of such Preliminary Enquiry and gathered that there was nothing much therein. He took advantage of such situation and thought of exploiting the suspect and raised frivolous pointers on record namesake and to portray to Rajiv Sharma that the matter was serious. In order to extract money, he created and wove a gloomy picture before Rajiv Sharma.
5.2 Sh. Dutt has argued that the trap was successful and the various forensic reports and the deposition of material witnesses including complainant, TLO and independent witness R.S. Tomar clearly indicate that accused had demanded the bribe of Rs.4 lacs and accepted the same and such bribe money was also recovered from his conscious possession. He has thus argued that in light of the testimony led before the court, documents proved by the prosecution witnesses, recorded conversation (before trap and spot) and the various reports of CFSL, the case stands proved beyond shadow of doubt. He has also contended that there is no truth in the defence version and there was no reason for inspector Sathiamoorthy and DSP Rohit Kapoor to have falsely implicated the accused. He has contended that initially Sathiamoorthy had also been named in the FIR besides accused D.K. Srivastava but the conversation and the actual spot incident clearly revealed that accused D.K. Srivastava had taken and accepted the bribe for himself only and moreover during the investigation, nothing incriminating was found against anyone else and thus there was no question of there being any conspiracy of falsely implicating the accused.
5.3 Sh. Harsh K. Sharma, Ld. Defence counsel has defended the accused. Extensive reference was also made to the statement filed u/s 313 (5) Cr. PC. Accused himself also addressed oral arguments. Written arguments running into 176 pages were also placed on record though these should have been short and to the point more so when oral arguments were heard for more than 10 hours. Reliance has also been placed upon certain judgments to which I would advert to at appropriate places.
5.4 According to defence, a conspiracy was hatched by Inspector Sathiamoorthy, Rajiv Sharma and DSP Rohit Kapoor was also roped in, who also harboured grudge against the accused. It has also been claimed that independent witness Sh. D.K. Upadhayay, wife of complainant and Ms. Neelam Singh the then Public Prosecutor (now a judicial officer) have been deliberately held back by the prosecution and their non-examination has caused serious prejudice to the accused and, therefore, adverse inference should be drawn against prosecution.
5.5 Strong reliance has also been placed upon the testimony of DW1 Maharaj Singh and DW2 Sumit Kumar Srivastava.
APPRECIATION OF EVIDENCE 6.0 I have given my thoughtful consideration to the rival contentions and carefully scanned the entire material proved on record. Such contentions need to be evaluated under following heads:-
1 Whether accused was involved with the preliminary enquiry or not and whether he had any occasion or motive to demand bribe or not?
2 Pre-Trap proceedings 3 Spot-Occurrence 4 Electronic Evidence & CDR 5 Forensic reports 6 Version propounded by defence witnesses 7 Other issues 8 Judgments cited at the bar 9 Conclusion 6.1 Let me take up these points one by one.
WHETHER ACCUSED WAS INVOLVED WITH PRELIMINARY ENQUIRY?
7.0 Sh. Harsh Sharma has fervently contended that accused was never ever involved with preliminary enquiry PE-13(A)/2004/ACB/CBI/ Delhi in any manner whatsoever. According to him, it was Insp. Sathiamoorthy who was conducting such enquiry and concerned SP had marked such preliminary enquiry to Sh. C.P. Pandey, Sr. P.P. for submitting FR-II and since Sh. Pandey was found to be preoccupied, accused, being Deputy Legal Advisor, merely marked the case to Ms. Neelam Singh, P.P. for FR-II. Except for the aforesaid marking of the file to Ms. Neelam Singh, accused was neither associated with the enquiry file for preparing any FR-II nor he had any sort of interaction with Rajiv Sharma or for that matter with Insp. A. Sathiamoorthy and Ms. Neelam Singh.
7.1 According to Sh. Sharma, file was marked to Ms. Neelam Singh for FR-II on 30.03.2006 and thereafter accused had no occasion whatsoever to deal with the file. It has thus been argued that since accused was not associated with the preliminary enquiry or for that matter with the preparation of FR-II, there was no occasion for him to have dealt with or interacted with Rajiv Sharma or to have demanded any bribe from him.
7.2 Thus it has been strongly canvassed that there was no motive involved.
7.3 Photocopies of relevant notings (Ex. PW2/D1) related to such preliminary enquiry were collected during the investigation. At the request of defence, original file was summoned during the cross-examination of PW2 Insp. Sathiamoorthy and such original file has also been proved and exhibited as Ex. PW2/DA.
7.4 Sh. Sharma has argued that CBI has tried to hide the complete file from the court and some parts were brought to the light that too in a piece-meal manner. I, however, feel that it does not really matter much in present peculiar context. This court is not seized with such enquiry as such. Moreover, the entire file, as such, was not that important. It is the noting portion which assumes significance being suggestive of the fact that accused had some control over the marking of such file.
7.5 Let me evaluate and weigh up such noting portion. There is one noting dated 17.02.2006 which indicates that Insp. Sathiamoorthy had discussed the matter with DLA-accused. Undoubtedly, Insp. Sathiamoorthy has not whispered even a single word about such noting, meeting or discussion of the matter with DLA. However, original noting file had been summoned at the request of defence only and even if Sathiamoorthy did not make any specific reference regarding noting dated 17.02.2006, fact remains that accused cannot run away from such noting at all. Such noting reflects that matter was discussed with DLA who was of the opinion that any matter pertaining to any private company could not have been inquired by CBI. Sh. H.K. Sharma has argued that such noting cannot be read at all more so when it does not bear any signatures or endorsement of DLA. However, I am not impressed with such contention. DLA must have seen such previous noting which was at the preceding page only when he marked the file to Ms. Neelam Singh. Moreover, it is not incumbent upon any such senior-rank officer to always sign noting where there are discussions only. Thus, there is no reason to disbelieve the noting dated 17.02.2006 made by Sathiamoorthy.
7.6 I have also seen the pointers signed by Ms. Neelam Singh, the then PP, CBI. These are not in her hand and are rather found to be computer generated printouts. As per pointers, it was suggested that Satish Gupta, Chairman of M/s Galileo India be examined and the details of employment of Sh. Barua (brother-in-law of Rajiv Sharma) be collected besides examination of bank account of Rajiv Sharma and T.R. Barua.
7.7 Sh. Harsh Sharma has contended that Insp. Sathiamoorthy was the one who had submitted FR-I and who had opined that there was no material to proceed against any of the suspect. It has been exclaimed by Sh. Sharma that CBI has not offered any reason as to why Sh. Alok Kumar, the complainant at whose behest such preliminary enquiry was registered, was not examined by Insp. Sathiamoorthy. He has thus contended that intention of Insp. Sathiamoorthy was malafide and he somehow wanted to show favour to the suspects of such preliminary enquiry by not inquiring into the matter in an impartial manner and when subsequently pointers were raised by Ms. Neelam Singh, Insp. Sathiamoorthy and Rajiv Sharma started thinking that these pointers had been raised at the behest of accused and, therefore sensing that accused was a stumbling block in smooth preparation of FR-II, a false story was woven to entrap the accused in one way or the other.
7.8 Sh. Sharma has also claimed that Ms. Neelam Singh, who has been deliberately held back, could have substantiated the prosecution story and adverse inference should be drawn because of her non-production before the Court. It has been argued that Ms. Neelam Singh used to be posted in Patiala House Courts and during those days, she used to devote her first half-day in Courts and used to return to CBI office only during the post-lunch session. She was a new entrant who had barely joined CBI on 12.03.2006 and since there was paucity of space, she used to sit in the room of DLA. He has also argued that it has also come in the cross-examination of PW1 Rajiv Sharma that the original complaint of Sh. Alok Kumar went missing during the preliminary enquiry which also suggests involvement of Insp. Sathiamoorthy and he could have been the actual reason behind the misplacement of such original complaint.
7.9 Indubitably, as per preliminary enquiry file, pointers were raised by Ms. Neelam Singh but fact remains that defence cannot dig out any substantial advantage from her non-examination who had joined CBI barely a month back and was sitting in the chamber of accused only due to space-crunch.
7.10 Moreover, deposition of PW2 Insp. Sathiamoorthy clearly demonstrates that accused was in the thick of things even after marking the file to Ms. Neelam Singh. As per PW2 Insp. Sathiamoorthy, it was accused who had raised certain queries and who had also desired to meet Rajiv Sharma. Rajiv Sharma has also deposed that he had met accused when he had gone to CBI office. I am also mindful of the fact that notings may not be all- incorporating. It is upto the concerned individual whether he wants to pen down any small detail as well in such noting- portion or not. Admittedly, there is no noting of 12.04.2006 but merely because, there is no such noting, it cannot be inferred that Rajiv Sharma had not come that day to CBI office. Visitor's register has been proved which also indicates that Rajiv Sharma did visit CBI office that day at 11.00 am and then left at 12.10 noon. Undoubtedly, he had come to meet Insp. Sathiamoorthy as Insp. Sathiamoorthy had called him but Rajiv Sharma was then taken to the office of accused and such fact has been explicitly affirmed by both of them i.e. Rajiv Sharma and Insp. Sathiamoorthy.
7.11 PW1 Rajiv Sharma has categorically deposed before the Court that he initially appeared before one Mr. Lalit Kaushik on 19.05.2005 who had recorded his statement and, therefore, pursuant to one more letter from CBI, he went to CBI office on 06.01.2006 & 07.01.2006 and met Insp. Sathiamoorthy. According to him, that day Insp. Sathiamoorthy did not record his statement. Thereafter, as per his deposition, Rajiv Sharma received another call from Insp. Sathiamoorthy in April 2006 who asked him to come to CBI office along with his passport. Rajiv Sharma then requested Insp. Sathiamoorthy that he would come to CBI office on 12.04.2006 and he did appear before Insp. Sathiamoorthy along with passport where few questions were put to him regarding his travel abroad and then Insp. Sathiamoorthy took him to Law Officer i.e. accused D.K. Srivastava.
7.12 It seems to be the first meeting between complainant Rajiv Sharma and accused D.K. Srivastava and during such meeting, accused told Rajiv Sharma that case had been referred by Ministry of Petroleum & Natural Gas and that everything was in his hands. So much so, accused also told him to meet outside the office in the evening of 15.04.2006 and also gave him his house address and telephone number. According to PW1 Rajiv Sharma, since he had some personal work on 15.04.2006, he requested that he would meet accused on 16.04.2006 to which accused agreed. Accordingly, that day complainant reached outside CBI Colony and called up accused and in a short while, accused came there and then they both had gone to Coffee Shop of Hotel Vasant Continental where they took snacks and juices.
7.13 Complainant Rajiv Sharma foot the bill there and prosecution has chosen to prove such fact through the testimony of PW13 Mukesh Dutt Sharma, Credit Manager, Restro Café of said Hotel and also through PW12 Vineet Sharma of ICICI Bank. Sh. Harsh Sharma has contended that payment slip would, in itself, not indicate that they both were together. He has argued that no waiter of that café has been examined and it cannot be assumed barely from the payment proof that accused was also accompanying Rajiv Sharma. I do agree with Sh. Sharma but then there is no reason to disbelieve the most important witness i.e. Rajiv Sharma who categorically deposed that they both were together at such café.
7.14 While leaving, accused gave shock of life to Rajiv Sharma as he, for the first time, put forwarded a demand of bribe of Rs. 5 lacs. According to Sh. Rajiv Sharma, accused demanded such sum of Rs. 5 lacs for Insp. Sathiamoorthy and he felt stunned on hearing such demand but requested for some time.
7.15 PW1 Rajiv Sharma felt that since he had not done anything wrong, there was no point in yielding to such demand. He rather thought of recording all the conversation which he would have with accused. He had conversation with him on 22/23/29 & 30th April 2006 and he recorded such conversation. I would come to these allegedly recorded conversations later on.
7.16 Then accused again called up complainant on 05.05.2006 and also came to his house at about 8.30 PM. At that time, Rajiv Sharma was not at his house but he returned to his house at about 8.40 PM. They both had conversation. Such conversation dated 05.05.2006, which took place at the residence of complainant, was also recorded by complainant. During such conversation, accused again claimed not to worry about the case as everything was in his hands. They both even consumed three to four beers and then complainant requested accused to reconsider the amount. Accused then claimed that he could reduce amount by Rs. 1 lac and thus original demand of Rs. 5 lacs stood reduced to Rs. 4 lacs. Complainant told him that he was leaving country for official work and that he would call up accused once he returned back and accused insisted that Rajiv Sharma must settle the matter with Ms. Neelam Singh & Insp. Sathiamoorthy before leaving India. But when complainant showed his inability, accused claimed that they should then forget Sathiamoorthy and let the amount be given to him (accused) only.
7.17 PW1 Rajiv Sharma further deposed that on 11.05.2006 he returned to India and gave a call to accused in the morning and informed him about his arrival. Such telephone conversation, which took place between them in the morning of 11.05.2006, was also recorded by complainant. Complainant informed accused that he would be coming to his house same evening. Thereafter, Rajiv Sharma contacted CBI Headquarters and gave his written complaint in the morning itself.
7.18 PW2 Insp. Sathiamoorthy has also supported the initial version of complainant Rajiv Sharma. He also deposed that he had called Rajiv Sharma to CBI office. He also claimed that DLA had told him to verify the bank account of Rajiv Sharma as well as of his brother-in-law and also told him to verify the passport of Rajiv Sharma. PW2 Insp. Sathiamoorthy also deposed that he asked complainant to provide all such details and also to bring his passport and to send his brother-in-law to CBI office to clarify certain points. He also deposed that on 12.04.2006 Rajiv Sharma had appeared before him and produced passport which did indicate that no journey was performed by complainant during his tenure in IGL & GAIL and then same day, Insp. Sathiamoorthy went to the office of accused D.K. Srivastava where Ms. Neelam Singh was also sitting and conveyed all these facts to accused. Then accused asked him to bring Rajiv Sharma to his chamber and as per instructions, he came back there with Rajiv Sharma. Rajiv Sharma was then offered tea and they both i.e. accused and complainant had some conversation in Hindi and thereafter they all came out. According to Insp. Sathiamoorthy, one day later on also, he went to the chamber of accused when accused asked him to contact Rajiv Sharma and to convey him message that he (accused) wanted to talk to him. Same day, Insp. Sathiamoorthy also contacted Rajiv Sharma over phone.
7.19 Much has been stressed by defence that it is not possible to digest that Insp. Sathiamoorthy did not know Hindi at all. To some extent, I also feel so. Reason is two-fold. Firstly, complainant himself has claimed that he used to converse with Insp. Sathiamoorthy in English as well as in Hindi. Secondly, Insp. Sathiamoorthy was TLO in one case where complainant was a Hindi-knowing chap only. Even if there was some conversation in Hindi between accused and complainant which was even overheard by Insp. Sathiamoorthy, it was not going to make any difference. That day i.e. on 12.04.2006, accused had not made any demand as such. He only indicated that he wanted to meet complainant outside. As an Inspector, probably, even on hearing this, Sathiamoorthy would not have been in any real and substantial position to assess the malafide intention of accused or to make complaint of such fact anywhere. His keeping mum may not be criminal in nature though he might have got alerted a bit. Since he was named in FIR, probably, in his over- zeal to ensure that he does not get entangled in the matter unnecessarily, he came up with an answer before the court to project as if he never heard any such thing about meeting outside beyond office hours. He should have shown guts and should have owned up that he knew Hindi and that he heard such conversation as well. Be that as it may, it hardly makes any impact over the case either way.
7.20 I need not remind myself that such preliminary enquiry is not under judicial scrutiny at the moment at all. I have seen such file related to preliminary enquiry for limited purpose i.e. for ascertaining whether accused had any occasion to deal with the same or not. It is also not required to be evaluated whether Insp. Sathiamoorthy had conducted such enquiry in the desired manner or not. Much has been said that Insp. Sathiamoorthy had deliberately tried to show favour to suspect Rajiv Sharma with ulterior motive and, therefore only, he even did not examine the complainant of that case. I would not be commenting over such aspect of the case though suffice it to say that FR-I was submitted after the comprehensive enquiry and when the preliminary enquiry was registered, Sh. Alok Kumar, Chief Vigilance Officer was shown to be the actual complainant and it also becomes apparent that statement of said Sh. Alok Kumar was also recorded. It is also not of much importance and significance as to why the entire PE file, consisting of all its parts, was not seized at the earliest available opportunity. CBI thought it appropriate to take in its possession the relevant noting portion only as it only wanted to demonstrate from the noting portion that accused was having administrative control over the matter as he was the one who had marked the file to Ms. Neelam Singh. It does not matter as to from where such file was seized. It is also not of much consequence as to why no seizure was prepared when such noting portion contained in D-39 was seized.
7.21 Defence has, while relying on Vineet Narain Vs. Union of India (1998) 1 SCC 226, contended that CBI Manual can be seen in order to understand the procedure and rules and other aspects and any deviation from the established procedure or the guidelines laid down in CBI Manual should be viewed seriously. It has been stressed by defence that preliminary enquiry file was not kept as per guidelines laid down in the Manual and enquiry was not completed within the stipulated time frame. It is also beyond my domain and province to comment or assess as to why such preliminary enquiry was not completed within the period of three months and even if such PE file is not maintained as per CBI manual, it is not going to have any bearing over the present case. I have already commented above that I am not scrutinizing such preliminary enquiry or the final reports submitted in connection with such preliminary enquiry. Such preliminary enquiry has been looked into only for restricted purpose which has already been elaborated above. Merely because noting portion alone has been placed before the Court would not mean and indicate that CBI was selective in its approach or that it had done that with any ulterior motive.
7.22 During course of the arguments, other portions of such preliminary enquiry file were called and seen by the court as well. First part is containing documents related to the registration containing seven pages of noting and 34 pages related to correspondence. Second part is consisting of statements running into 93 pages. Third part is containing photocopies of IGL documents and these are spread across in 65 pages and fourth part contains miscellaneous documents running in 131 pages. Thus, all such parts of file (including Ex. PW2/DA) have been produced before the Court and at the cost of repetition I would say that it was only the noting portion which was principally important.
7.23 Pointers raised by Ms. Neelam Singh, as mentioned in computer generated printouts, are found contained in Ex. PW2/DA in which she also claimed that to some extent she was in agreement with FR-I but asked IO to make further enquiry in respect of three points before the finalization of the case. I would, however, discuss in detail in the later part of my judgment whether these pointers had been, in fact, raised by Ms. Neelam Singh or were the brainchild of the accused himself in light of conversation dated 05.05.2006.
7.24 It also really does not matter even if date of preparation of FR-II in preliminary enquiry and date of trap is found to be the same.
7.25 I had also called for the CBI Manual of the relevant time i.e. of year 2005. Duties of Deputy Legal Advisor (DLA) are found mentioned under Para 21.7 and main functions and duties included supervision of work and conduct of Senior PPs/PPs/APPs working under him. Now, since FR-1 was of closure, with the immense experience behind him, he could have smelt that there was nothing in the matter and it could have supplied him a reason to exploit the suspect in such PE. Sh. Sharma has contended that motive usually does not come into play but when motive is presented as a fact, it becomes bounden duty of prosecution to establish the same. I would only say that factual matrix and the evidence led before the court lay bare the motive. Be that as it may, it cannot be said that accused had no control or command over such PE file. Being DLA, he was overall supervisor and was having full authority over the marking of such files and could have even demanded explanation from such prosecutors. He was also, in such capacity, having access to such files as well.
7.26 I would touch upon the recorded conversation between complainant and accused at a later stage in detail. However, at this juncture, suffice would be to comment that such conversation, in fact, indicates that accused was very much conversant with the preliminary enquiry and knew that Rajiv Sharma was a suspect therein.
PRE-TRAP PROCEEDINGS 8.0 Sh. Satish Golcha was Superintendent of Police, CBI and when complainant produced his written complaint before him, such complaint was marked to PW11 Sh. Rohit Kapoor, the then DSP for verification. Such complaint has been proved as Ex. PW1/A (D-2). PW11 Rohit Kapoor verified the contents of the complaint and submitted report Ex. PW11/A (D-3) stating therein that his enquiries had revealed that accused was not enjoying good reputation. On the basis of such report, Sh. Golcha recommended registration of RC and made endorsement on his verification report. Pursuant to such endorsement, FIR was registered which was entrusted to PW11 Rohit Kapoor for investigation.
8.1 Since much ado has been raised by defence, let me right away assess whether Rohit Kapoor was harbouring any grudge against the accused or not.
8.2 There is no dispute that Sh. Rohit Kapoor was IO/TLO of case RC-3/2002/BHP/ACU-IV. It is also not in dispute that in such case, closure report had been furnished before the concerned court of CBI, Bhopal. According to defence, when such closure report was filed, Ms. Anjali Palo, Ld. Special Judge, Bhopal had expressed her displeasure with respect to inept handling of the case and at that time accused D.K. Srivastava was posted as Sr. PP in that court and he had also, as duty bound, presented the correct facts before the court and Rohit Kapoor could not digest such dressing given to him by the court and, therefore, he was out to seek revenge and to settle scores.
8.3 At the request of the defence, I had called for the concerned file of RC-3/2002/BHP/ACU-IV. Such file was brought in secured cover as per the direction of the court and the court has gone through such file and it is apparent from the file that closure report was furnished before the concerned court for the first time on 26.06.2003 and at that time Sh. D.K. Srivastava had also appeared before the court along with Sh. Rohit Kapoor. Proceedings dated 26.06.2003 only indicates that notice was ordered to be issued to the complainant of that case i.e. Sh. Sunil Lahoti. Such proceedings do not indicate that any annoyance was shown by the court about the manner in which the case had been investigated. The matter was then fixed for 24.07.2003 when presence of D.K. Srivastava only is found recorded. Thereafter, there are various proceedings from 14.08.2003 till 23.09.2003 but CBI was represented by another prosecutor i.e. Sh. P. K. Dogra, Public Prosecutor.
8.4 I have seen the cross examination of Sh. Rohit Kapoor. In his cross examination dated 22.03.2013, PW11 Sh. Rohit Kapoor admitted that he was the investigating officer of said case and he had filed a closure report before the concerned court of Ld. Special Judge, Bhopal. He also did admit that he had appeared personally before said court. He, however, supplemented that he did not remember as to who was the prosecutor in that court. He also claimed that he did not remember whether accused D.K. Srivastava had appeared as Sr. Public Prosecutor in that case. He also claimed that he did not remember whether the court had shown any displeasure about the investigation or that accused himself had also reflected his own displeasure about the manner of investigation.
8.5 I do feel that, at times, it may not be possible for any such IO to distinctly remember the name of the prosecutor more so when such IOs are involved with investigation in number of cases. Moreover, the order sheet also does not reflect that any scathing remark was ever directed towards the IO or that any glaring lapse was pointed out by PP which could have irked the court and also could have pricked Rohit Kapoor resultantly. I, therefore, do not find any substance in the story propounded by the defence in this regard. Merely because at one point of time, Rohit Kapoor had appeared before the court of Bhopal and at that time accused was representing the CBI as Sr. PP of that court, without there being anything recorded in adverse against the IO, would not be taking the defence story anywhere. Moreover, even if it is assumed for a moment that the court had expressed its oral displeasure, I am of the firm opinion that such solitary and virtually inconsequential incident cannot be said to be enough in itself so as to create such a lasting and eternal impression in the mind of Rohit Kapoor that even after 3-4 years, he would be itching hard to settle scores with accused moreover, when he was not the initial I.O. in that case of Bhopal and was entrusted with investigation later on i.e. on 14.05.2002. Even as per the information placed on record by accused himself, previous I.O. in that case was one Mr. M.M. Deshpande. Moreover, a careful perusal of such record would also indicate that closure report in that case had been furnished before the Court as trap did not materialize and even the complainant had resiled from his statement and complainant in that case had also filed two affidavits to that effect in the court concerned. One such affidavit was of the time when Rohit Kapoor was not even in picture as Mr. Deshpande was I.O. at that time. Be that as it may, in such a situation, even otherwise, it seems that there was no other recourse available to the investigating agency except to have filed a closure and, therefore, apparently there was no reason for the Court to have shown annoyance which was eventually accepted by the court in the same shape.
8.6 Defence has raised contention that FIR was got registered with ACU-IV deliberately because, Sh. Rohit Kapoor was posted in said branch. According to accused, there are several branches and it cannot be said to be a matter of sheer coincidence that Sh. Rohit Kapoor happened to be there in ACU-IV. It really does not matter much as admittedly there is no policy or guidelines of CBI and such FIR could have been registered with any branch. Things could have been different had ACU-IV was not competent at all to entertain any such complaint. No mileage can, therefore, be permitted to be drawn by accused on this score.
8.7 Coming back to the sequence of events, thereafter, it was decided to lay trap and accordingly PW11 Rohit Kapoor asked PW1 Rajiv Sharma to come to Ten Guest House, Sunder Nagar, New Delhi at about 3.00 PM. He was also asked to bring Rs. 4 lacs as per the demand made by accused. Complainant Rajiv Sharma has deposed that he withdrew money from his bank and reached Ten Guest House at 3.00 PM where Rohit Kapoor was already present with Insp. N.K. Mishra, Insp. R.G. Mishra, Mr. R. Upadhayay and Mr. R.S. Tomar. Prosecution has, out of these witnesses, examined Sh. R.S. Tomar as PW6 besides DSP Rohit Kapoor.
8.8 Sh. Tomar had come to Ten Guest House as request had been sent to the Department of Education, Government of NCT of Delhi for sending two independent witnesses to Ten Guest House at 2.30 PM to observe the proceedings. Sh. Tomar had come with his colleague Mr. Upadhayay.
8.9 All the persons, who had congregated in Ten Guest House, were explained about the purpose of their assembling there. Contents of complaint of Rajiv Sharma were also read out. Independent witnesses also went through the contents and even asked questions from Rajiv Sharma who confirmed the genuineness of the complaint. After satisfying themselves, they even affixed their signatures on the complaint in token thereof.
8.10 Rajiv Sharma also informed that that morning he had rung up accused from his residence landline number to landline number of accused and he also revealed that he had recorded such telephonic conversation. He also told about the previously recorded conversation dated 05.05.2006. He also produced one audio cassette and one Coby DVR containing such recordings. These were played before the independent witnesses as well as trap team members which too indicated demand of bribe by accused. These were taken into possession vide separate memo Ex. PW1/C. 8.11 Complainant Rajiv Sharma then produced three bundles of notes of rupee one thousand and two bundles notes of rupee five hundred totaling Rs. 4 lacs. Numbers of such currency notes were noted down on separate sheet by Insp. R.G. Mishra. Then Insp. N.K. Mishra gave demonstration of the reaction of phenolphthalein powder with sodium carbonate solution and independent witness R.S. Tomar was asked to touch the plain piece of paper treated with phenolphthalein powder and then to dip his fingers in the glass tumbler containing sodium carbonate solution and such solution then turned pink and such process was explained to all the persons present there and they were told that anybody who would touch any paper coated with phenolphthalein powder and then dips his fingers in the sodium carbonate solution that would cause the solution to turn pink. Currency notes produced by Rajiv Sharma were then coated with phenolphthalein powder and those were put in white polythene bag and such white polythene bag having words "Induben Khakrawala" inscribed on it in Gujarati, was also treated with phenolphthalein powder. Such bag was then handed over to complainant Rajiv Sharma and he was instructed not to hand over the bag to accused without demand of bribe.
8.12 One other COBY DVR-cum-music player was arranged. It was ensured that it was blank. Introductory voices of R.S. Tomar and D.K. Upadhayay were recorded in such DVR and then such COBY DVR was given to Rajiv Sharma with direction to keep the same in his pocket for recording of conversation between him and accused. Thereafter, trap team left for residence of complainant Rajiv Sharma. However, Rajiv Sharma informed that since accused was a CBI officer, he may not accept the bribe amount in presence of any other person and, therefore, one more electronic gadget was arranged and when the trap team reached the residence of complainant Rajiv Sharma at about 6.15 PM, one receiver of the microphone was installed on the rooftop of the flat of complainant for listening live feed. Microphone of such device was given to complainant Rajiv Sharma for keeping the same in his pocket. Such receiver installed on the roof was connected with the CINEX DVR for recording the conversation. In the similar manner, introductory remarks of both the independent witnesses were recorded in such CINEX DVR after ensuring that it was blank and complainant was instructed to switch on COBY DVR as soon as accused was to enter his residence.
8.13 Complainant was also instructed to give pre-decided verbal signal "special dinner karenge" after acceptance of bribe by accused. Insp. N.K. Mishra and independent witness R.S. Tomar were instructed to stay at rooftop to hear and record the conversation and other members of the trap team were instructed to take strategic position outside on the ground floor and pre-trap memo was closed at 7.00 PM at the residence of Rajiv Sharma and such pre-trap memo Ex. PW1/E (D-4) was signed by complainant and independent witnesses as well.
8.14 PW6 R.S. Tomar has also supported the prosecution story and has also given similar account. He reached Ten Guest House along with his colleague Sh. D.K. Upadhayay. They both met Sh. Rohit Kapoor, DSP who further introduced them to Insp. N.K. Mishra, Insp. R.G. Mishra besides complainant Rajiv Sharma. He has also deposed that Rohit Kapoor told him about the demand of Rs. 4 lacs made by accused from Rajiv Sharma and Rajiv Sharma also confirmed such fact and claimed that he had telephonic conversation with accused that morning and that meeting had been fixed at his residence same day for making payment of Rs. 4 lacs. He also deposed about the recorded conversation and about the written complaint of Rajiv Sharma. He has also identified his signatures on seizure memo Ex. PW1/C whereby cassettes and DVR were seized from complainant. He has also deposed about the demonstration of chemical reaction and about the factum of producing of currency notes of Rs. 4 lacs by complainant and their being smeared with phenolphthalein powder. He has also narrated about the verbal signal and also about the installation of electronic instrument atop the roof of the flat of complainant Rajiv Sharma.
SPOT - OCCURRENCE 9.0 What actually transpired inside the house of Rajiv Sharma can be principally gathered from the testimony of Rajiv Sharma though fact remains that live conversation was also being heard by PW6 Sh. Tomar and Insp. N.K. Mishra atop the roof of flat of Rajiv Sharma and Rajiv Sharma himself was also recording such conversation with the help of Coby DVR.
9.1 PW1 Rajiv Sharma has deposed that he was in his bedroom at about 8 o'clock when his wife informed that accused had come. He then came out to drawing room after switching on the recording of digital voice recorder/player which was in his pocket. He offered beer which accused initially refused but later on agreed if he (Rajiv Sharma) also accompanied him. Then they both had beer and Rajiv Sharma then informed that as desired, he had arranged the money. Accused then asked him to get the same. Rajiv Sharma then went to his bedroom and brought same polythene bag containing Rs. 4 lacs.
9.2 Such polythene was handed over to accused and accused accepted the same with his right hand and also asked him to bring another polythene bag. Complainant Rajiv Sharma deposed that he got one more polythene bag on which words "Royal Mobile" were printed and then accused kept the white polythene containing said amount of Rs. 4 lacs in the polythene bag of "Royal Mobile".
9.3 As he was leaving, Rajiv Sharma exclaimed "Aap Ke Saath Special Dinner Karenge". When they both reached the ground floor, Mr. Tomar and Insp. N.K. Mishra came running from rooftop and caught hold of accused. In the meanwhile, other trap-team members also came and took accused back to Rajiv Sharma's house. During such process, accused was looking shocked. Packet, which he was carrying, was handed over to one of the witnesses.
9.4 PW6 R.S. Tomar has also supported Rajiv Sharma. He has deposed that he and Insp. N.K. Mishra started hearing conversation between complainant and accused and at about 8.30 PM they heard pre-decided signal i.e. Special Dinner Karenge uttered by the complainant and they both came down from the roof and reached drawing room of the complainant and found the exit door of the drawing room opened and then they came out of the door and saw complainant and accused standing at the staircase. In the meanwhile, DSP Rohit Kapoor, Insp. R.G. Mishra and D.K. Upadhayay also came near the staircase. It was seen that accused was holding bag of tainted money in his right hand. DSP Rohit Kapoor held the right hand wrist of the accused and Insp. N.K. Mishra caught hold of his left hand wrist and then Rohit Kapoor challenged accused that he had accepted bribe from complainant. Upon this, accused got perplexed. Identity of all the members of the team was revealed to the accused and DSP Rohit Kapoor took that packet containing bribe money from accused and handed over the same to him (PW6 R.S. Tomar) for custody and accused was brought to the drawing room.
9.5 PW11 Rohit Kapoor has also deposed that all the team members took position as decided and complainant Rajiv Sharma remained in his house along with his wife and R.S. Tomar and Insp. N.K. Mishra had taken position on the roof of the house and remaining members had taken position on the ground floor at strategic distance to observe proceedings. At about 8.00 PM. a man in blue shirt was found entering in the house of Rajiv Sharma who was later on identified as accused. Defence has expressed its astonishment as to how TLO, who already knew the accused, has described him virtually as a stranger i.e. as a man in blue shirt. I, however, do not feel anything awkward in such utterance at all. It was late evening time and around 8. 00 pm, it is usually dark. CBI officials had taken tactical positions and were not close enough to have any eye-to-eye contact with accused. Moreover, TLO has nowhere claimed that he could though see the face but could not recognize the person wearing blue shirt. Moreover, even otherwise as per the evidence led on record, by both the sides, accused had never any occasion to work with TLO Sh. Rohit Kapoor and, therefore also it seems that TLO did not know accused by face beforehand. Mere one appearance before Bhopal Court some years back would not, in itself, mean that he was in a definite position to identify the accused.
9.6 At about 8.30 PM, pre-decided signal was heard by Insp. N.K. Mishra and R.S. Tomar and they both came down running for catching hold of accused and by that time, complainant and accused had reached ground floor. He has also deposed that he along with his other team members had seen accused holding a packet in his right hand and PW11 Rohit Kapoor disclosed his identity and challenged accused that he had accepted the bribe of Rs. 4 lacs and caught hold of him by his right hand and N.K. Mishra also caught hold of him of his left hand and then packet was taken from accused and was handed over to Sh. R.S. Tomar and accused was taken to drawing room of Rajiv Sharma.
9.7 PW11 Rohit Kapoor then deposed about preparation of solution of sodium carbonate and that the fingers of right hand of accused were dipped in such solution which turned pink. There was no chemical reaction when left-hand fingers of the accused were got dipped in another solution of sodium carbonate. Both such solutions were transferred in separate glass bottles and were separately sealed after such bottles were properly secured. The currency notes, which had been recovered from the possession of accused, were tallied with the numbers of the currency notes mentioned in the pre-trap memo and these were found to be the same. PW11 Rohit Kapoor then asked Rajiv Sharma to narrate the incident which had taken place after entering of the accused and he reiterated the entire story and also told that accused had kept the bag in his right hand and had demanded another polythene bag which was provided to him.
9.8 Contents of CINEX DVR were transferred in two blank Sony audio cassettes and one such cassette was sealed and other cassette was kept separately for investigation purpose.
9.9 COBY DVR, which was with the complainant Rajiv Sharma, was also taken back from him and its contents were transferred to blank CDs and one CD with COBY DVR were sealed and other CD was kept separately for investigation purpose.
9.10 Accused had consumed beer at the spot and the glass from which he had consumed such beer was also sealed for the purpose of comparing his fingerprints. Such glass was put in a carton of Black Label bottle and such carton was sealed at the spot.
9.11 Voice sample of accused was taken in the presence of independent witnesses and cassette of such voice sample was also sealed and thereafter accused was arrested.
9.12 PW11 Rohit Kapoor has also proved arrest memo and personal search memo of accused. Facsimile of seal was taken and then seal was handed over to R.S. Tomar for safe custody. Post trap memo was prepared and its contents were read out to the witnesses and other memos of the team who signed the same in token of its authenticity.
9.13 As per PW11 Rohit Kapoor, post trap memo began at 7.15 PM on 11.05.2006 and such proceedings were completed on 4.15 AM next morning i.e. 12.05.2006. Copy of post trap memo was given to accused under acknowledgment and site plan Ex. PW1/F of the place was also prepared where accused was caught with bribe amount and map of the drawing room was also prepared which has been proved as Ex. PW1/G. Both such maps were enclosed with the post trap memo.
9.14 Various documents prepared by the investigating agency have been proved during the trial. These documents and exhibits are as under:
S. No. Description of Document D Number Exhibit Number 1 Complaint of Rajiv Sharma D-2 PW1/A 2 FIR D-1 PW1/B 3 Verification Report of PW11 Rohit Kapoor.
D-3 PW11/A 4 Production-cum-seizure memo through which cassette & DVR were seized by CBI from Rajiv Sharma at TEN Guest House.
D-5 PW1/C 5 Sheets on which numbers of currency notes were noted down.
D-4 PW1/D 6 Pre-trap memo.
D-4 PW1/E 7 Site plan of the place from where accused was caught with bribe amount.
D-7 PW1/F 8 Map of drawing room of Rajiv Sharma.
D-8 PW1/G 9 Post trap memo.
D-6 PW1/H 10 Facsimile of seal.
D-11 PW1/J 11 Arrest memo.
D-9 PW6/A 12 Personal search memo.
D-10 PW6/B 13 Seizure memo of sample voice of Rajiv Sharma.
D-13 PW1/K 14 Seizure memo of statement of credit card of ICICI Bank of Rajiv Sharma.
D-14 to D-23 PW1/L 15 Credit Card statement of Rajiv Sharma.
D-14 to D-23 PW1/M 16 Seizure memo of bill of Hotel Continental.
D-22 PW1/N 17 Bill of Hotel Continental.
D-22 PW1/P 18 Charge slip/receipt of Rs. 500/-.
D-22 PW1/Q 19 Letter dated 23.05.06 of SP/ACB/New Delhi to SP/CBI/ACU-IV.
D-24 PW3/1 20 Copy of Visitor Register.
D-37 Mark PW3/2 21 Seizure memo.
D-36 PW3/3 22 Service Book of accused.
D-38 PW3/4 (1 to 94) S. No. List of Exhibits Exhibit Number 1 Right hand-wash of accused.
Ex P-1 2 Left hand-wash of accused.
Ex P-2 3 GC Notes.
Ex P-3/1 to P-3/500 4 Polythene bag "Induben Khakrawala" in Gujarati which was treated with phenolphthalein powder at Ten Guest House in which bribe money was kept.
Ex P-5 5 COBY DVR (Q4) which contains conversation recorded by complainant Rajiv Sharma on 05.05.2006 between him and accused when accused had come to his house.
Ex P-18 6 Cassette (Q3) which was handed over by complainant to CBI which contains the conversation between him and accused which he had recorded in the morning of 11.05.06 before coming to CBI office.
Ex P-16 7 COBY DVR (Q2) which was used by complainant on 11.05.06 in his drawing room at the spot for recording conversation on 11.05.06.
Ex P-9 8 One CD in which the contents were transferred from COBY DVR Ex. P-9 at the spot.
Ex P-10 9 Cassette (Q1) containing recording of conversation which had taken place on 11.05.2008 at the house of complainant as transferred from CINEX DVR.
Ex P-8 10 Polythene Bag "Royal Mobile" which was demanded by accused in the drawing room of Rajiv Sharma.
Ex P-4.11
Cassette (S1) containing specimen voice of accused taken post-trap at the house of complainant on 11.05.2006.
Ex P-6X 12 Glass which was used by accused in the drawing room of complainant in which he had consumed beer and on which his fingerprints were found.
Ex P-13 13 One Black Label carton in which such glass Ex. P-13 was put, sealed and seized.
Ex P-14 14 Audio Cassette (S-2) containing specimen voice of complainant Rajiv Sharma recorded on 12.05.06 in CBI office.
Ex P-20 Electronic Evidence and CDR
10.0 Let me now come to the electronic evidence. Before appreciating the same, it is imperative to take note of following telephone numbers as stand revealed from CBI case :-
Complainant Rajiv Sharma:
(i) Mobile No. 9879003115.
(ii) Residential Landline No. 26135903. Accused D.K. Srivastava:
(i) Mobile No. 9871876826 (This connection is in the name of one Deepak Kumar)
(ii) Residential Landline No. 26144488.
(iii) Office Landline No. 24364556.
Insp. Sathiamoorthy:
(i) Mobile No. 9868459025.
10.1 I also called for both the Coby DVRs, one CD and two cassettes to take actual stock of the matter. These gadgets and compact disc were played through computer system to check the actual properties. Cassettes were also heard through cassette player.
10.2 COBY DVR Ex. P-18 (Q4) was with complainant already. In it, he had himself recorded the conversation on 05.05.2006. It is showing following files and folders:-
Name Date modified Type Size B---4184 05/05/2006 19:40 JPEG image 160 KB B---4183 05/05/2006 19:37 JPEG image 155 KB Modern_Jazz_Samba 24/08/2006 16:14 MP3 File 5,827 KB PLAYLIST File folder RECORD File folder 10.3 Folder PLAYLIST was further clicked and it was found containing no file or sub-folder. Folder RECORD folder was clicked and it was found containing only one file, namely, MIC001. It is MP3 file having size 142,681KB and does not contain any date of its creation.
10.4 Audio cassette (Q-3) i.e. Ex. P-16 contains conversation recorded by complainant Rajiv Sharma in the morning of 11.05.2006. It is a very small conversation and complainant merely informed the accused about his return to India and about meeting in evening. It is an audio cassette of TDK B60 and it has total duration of 53 seconds only.
10.5 COBY DVR Ex. P-9 (Q2) (used by complainant on 11.05.2006 for recording spot conversation) contains following files/folders:-
Name Date modified Type Size Modern_Jazz_Samba.mp3.sfk 29/09/2006 12:12 SFK File 84 KB Modern_Jazz_Samba 24/08/2005 16:14 MP3 File 5,827 KB PLAYLIST File Folder 10.6 PLAYLIST is a folder and when clicked, it was found containing a sub-folder, namely, RECORD. Such sub-folder RECORD was further clicked and it was found containing following six files.
Name Date modified Type Size MIC001 MP3 File 609 KB MIC001.MP3.sfk 29/09/2005 12:13 SFK File 7 KB MIC002 29/09/2005 12:27 MP3 File 20 KB MIC002.MP3.sfk 29/09/2005 12:14 SFK File 1 KB MIC003 MP3 File 26,009 KB MIC003.MP3.sfk 29/09/2005 12:15 SFK File 281 KB (Court Observation: SFK file is Sound Forge Audio Peak File which stands created automatically when an audio file is opened with a particular device and is stored in the same folder with the same name as the audio file, but with ".sfk" added after the original extension.SFK files visually represent audio data but are not meant to be opened or edited manually. SFK files do not contain any actual audio data.) 10.7 Ex. P-10 is a Compact Disc. Ex. P-9 (COBY DVR) was with the complainant in which he had recorded spot conversation and after the trap was successful as per CBI, such COBY DVR was taken back from the complainant and two CDs were prepared. One such CD along with COBY DVR were seized then and there and Ex. P-10 is one such CD. It was also inserted by me in the system and it was found containing following files:-
Name Date modified Type Size Duration Track01 01/01/1995 05:30 media file 160 KB 41 sec Track02 01/01/1995 05:30 media file 155 KB 5 sec Track03 01/01/1995 05:30 media file 5,827 KB 27.48 min 10.8 It is found to be an audio CD and all the three files were also played and track 01 is of 41 seconds duration, track 02 is of 5 seconds duration and track 03 is of 27.48 minutes duration. These files are replica of three MP3 files as found in Coby Ex P-9. Difference is only in the type. Coby contains audio in MP3 format whereas CD contains media file in audio CD format and not in MP3 format. Content-wise and duration-wise, there is no difference at all.
10.9 I would straightaway comment that CBI should always use gadgets which have provision of time-stamping. These gadgets should also be fed with accurate Indian Standard Time as well. If time set in such gadgets is incorrect or no time is set at all, the properties would reflect incorrect time. Similarly, if gadgets are though having the correct time fed in those, but copies thereof are prepared with the help of computer system which again has not proper time punched or set, such copies of CD would again show incorrect timings. Cassette is apparently of no use for ascertaining time of actual recording. Therefore, the court should, as a caution, not be swayed away, either way, merely by the properties.
10.10 Electronic evidence, in the context of the present case, can be divided into two categories.
10.11 First category would be relating to the conversation which complainant Rajiv Sharma had recorded even before he had contacted CBI on 11.05.2006. Second category would relate to the conversation which was recorded at the spot.
10.12 It is very much perceptible from the case of prosecution as well as from the deposition of complainant Rajiv Sharma that when accused made demand of bribe for the first time on 16.04.2006, he made up his mind that he would not give in to such illegal demand and would rather record future conversation. As per Rajiv Sharma, he had conversation with accused on 22.04.2006, 23.04.2006, 29.04.2006 and 30.04.2006 as well. Such fact was mentioned by him in his hand written complaint Ex. PW1/A as well in which he claimed that he had telephonic conversation with accused on 22.04.2006, 23.04.2006, 29.04.2006 and 30.04.2006 and also on 05.05.2006 of which he could produce the record. Undoubtedly, if the entire complaint is read, it would indicate that complainant had recorded conversation on 22.04.2006, 23.04.2006, 29.04.2006 & 30.04.2006 also. In his deposition before the Court, Rajiv Sharma claimed that he had conversation with accused on 22.04.2006, 23.04.2006, 29.04.2006 and 30.04.2006 but he supplemented that he was not sure of the exact dates and whether he had recorded such conversation. Be that it may fact remains that there is no recorded conversation of said four dates. According to defence, CBI has not come up with any explanation as to why these have been held back. To me, it really does not make much difference.
10.13 When complainant contacted CBI office on 11.05.2006, he brought with him one cassette and one COBY DVR. COBY DVR (Q4) contained the conversation recorded by complainant Rajiv Sharma which he had with accused on 05.05.2006 when accused had come to his house. Such COBY DVR has been proved as Ex. P-18. Transcription of such conversation has been proved as Ex. PW17/D (D-30). Rajiv Sharma also handed over one cassette (Q3) to CBI and it contains a very brief conversation which he had with the accused in the morning of 11.05.2006 when the meeting between them for same evening was fixed. Such cassette has been proved as Ex. P-16. Transcription of such conversation dated 11.05.2006 has been proved as Ex. PW17/E (D-31).
10.14 I have seen such COBY DVR player (Ex P-18). I have also heard the conversation directly from such COBY DVR by inserting such COBY DVR in the USB Port of the computer system. Such conversation, in fact, goes on to show that accused very much knew that Rajiv Sharma was a suspect in the preliminary enquiry. Surprisingly, in such conversation, accused himself professed that he had himself developed some points on which there could be some investigation. He also claimed that such investigation would be merely eyewash. He also claimed that he had come up with one page dictation in this regard on behalf of Ms. Neelam Singh. He also claimed that it was only on the basis of such dictation that Rajiv Sharma had been called in CBI and it was only with the purpose to show that some work had been done by the Law Office. He is also found exclaiming that it was his duty. He wanted to convey that there was nothing to feel worried about as everything was in his hands. He is also found claiming that let Sathiamoorthy may not be considered "Sathiamoorthy Ko Nikal dete hai". Such conversation also depicts Rajiv Sharma making enquiry whether there was any possibility of any reduction in the bribe amount "usme kuch gunjaise hai kya" to which accused claimed that let it be reduced a little "kuch kam kar do" and then he claimed that let one lac be reduced by whispering words "ek hata dena". This conversation is of around 76 minutes.
10.15 Accused has out-rightly denied such conversation. However, at the same time, he has also claimed that he had an occasion to meet complainant Rajiv Sharma as his wife knew Sumit Srivastava's wife as they both were from Assam and probably during some such interaction, complainant might have recorded some conversation and might have used such audio data astutely by playing tricks. Does it not, then, indirectly mean that accused has no qualm about such conversation containing his own voice as well?
10.16 Such conversation flattens and knocks down the defence contention that accused never knew Rajiv Sharma or that he never met Rajiv Sharma in connection with preliminary enquiry. He is rather found discussing about such preliminary enquiry and also claiming that everything was in his hand and that it was his duty. Such conversation also clearly depicts that he was the main brain behind the pointers which were otherwise, as per record, were found raised by Ms. Neelam Singh. He is also found saying that let there be no share for Sathiamoorthy and he also agreed to reduce the amount of bribe by one lac.
10.17 It will be also important to mention that such COBY DVR Ex. P-18 was also played during the recording of evidence of Rajiv Sharma and even Rajiv Sharma had explained about the import and connotation of various sentences appearing in such conversation. He claimed that he made request to accused by saying "Lekin Ek Gujarish Thi Ki Usme Kahi Gunjayish Hein" and accused responded by saying "Jaisa Kar Lo Yaar" and by saying "Kam Kar Lo, Ek hata Dena Bass" by which he meant that amount of bribe could be reduced by Rs. 1 lac. Such conversation was heard by Rajiv Sharma during trial and he claimed that as per such conversation it was concluded that bribe amount was settled as Rs. 4 lacs. In the earlier part of his testimony also, Rajiv Sharma had claimed that such conversation continued for about one hour which he had recorded and during such conversation, accused had told him not to worry about his case and that everything was in his hands and also to forget about the Sathiamoorthy and let amount be given to him (accused) only.
10.18 When I connected such COBY Player with my system and heard the conversation directly from there, I also noticed that transcription is virtually the same. Entire such conversation recorded in such COBY device is in continuity. Though it cannot be, at least from the COBY device itself, said that the conversation had, in fact, taken place on 05.05.2006 but when such conversation is read in conjunction with the testimony of Rajiv Sharma and in the background of the facts and circumstances of the present case, I don't find any reason to form any opinion to the contrary.
10.19 The next piece of the conversation recorded by complainant Rajiv Sharma is of the morning of 11.05.2006. As noticed, it is a small conversation and in this conversation, there was exchange of greetings and complainant then informed the accused that he had returned and accused also claimed that they would meet in the evening. It is an audio cassette of TDK B60 and it has total duration of 53 seconds only. It is proved as Ex P-16(Q-3) 10.20 Now I come to the second category of electronic evidence.
10.21 As already noticed above, complainant was given one another COBY DVR for recording the spot conversation. He switched on the same when accused came to his house in the evening of 11.05.2006 and recorded the conversation in such DVR. Defence has, however, made a futile attempt to project that complainant had not at all switched on such Coby DVR. In his cross-examination, complainant merely claimed that he had not put Coby DVR in 'on' position in his house. This only indicates that he switched the same on later when accused came. His answer cannot be construed as if he had not at all switched on the DVR. More so, Rajiv Sharma has deposed so very clearly in his examination-in-chief.
10.22 After the accused was arrested, COBY DVR was taken back from complainant and its contents were transferred to compact discs (two copies) with the help of laptop/computer. COBY DVR along with one such CD was sealed and one CD was retained for investigation purpose.
10.23 Albeit, the conversation from CINEX DVR was transferred to audio cassettes (two copies). One such cassette was seized and other cassette was kept for investigation purpose. However, CINEX DVR itself was not seized by the CBI if post-trap/recovery memo Ex. PW1/H (D-6) is to be believed. Sh. Harsh K. Sharma has contended that such CINEX DVR was in fact seized by the CBI and for the reasons best known to the CBI, it has not been placed before the Court. In this regard, he has drawn my attention towards the testimony of complainant as well as of independent witness Sh. R.S. Tomar. Undoubtedly, they both have claimed that CINEX DVR was also seized but fact remains that Memo Ex. PW1/H does not indicate so at all. Contradiction in this regard cannot be said to be too serious to destroy the entire case. When multiple gadgets are used, one is not expected to always recall each and every fact with complete precision more so when witnesses grace the witness box after some hiatus.
10.24 I would also like to add here that the house of the complainant Rajiv Sharma was on second floor and COBY DVR was in his pocket. It was recording the live conversation. Such conversation is contained in Ex. P-9 (Q-2) and CD Ex. P-10. Conversation contained therein is very clear and legible. It is also found to be in continuity. One other gadget i.e. microphone was also with complainant and its receiver was installed at the rooftop, which must have been connected wirelessly. Such receiver could not catch the conversation with absolute clarity and continuity. Interruption was noticed even by the expert of CFSL. According to PW16 Sh. Deepak Kumar Tanwar, such audio cassette Ex. P-8 (Q1) was having recording of total duration of 33 minutes including gaps and it was having partially recorded conversation which was disconnected at many places in between the recording though he also opined that such partially recorded conversation was similar to the recorded conversation appearing in Q2.
10.25 I myself also heard the conversation so recorded in the audio cassette and discontinuity, breaks stretching of voice and gaps were noticed. It looks like that such receiver could not record the conversation in complete and in clearly audible manner. Reason can be perhaps the distance between the two places i.e. drawing-room where complainant was sitting with microphone in his pocket and the roof of the house where the receiver had been installed.
10.26 Sh. Sharma has argued that both these conversations have to be ad verbatim and mirror copy of each other and since the CINEX recorder has been held back and since the alleged crucial words are missing in the recording which had been done at the rooftop, it has to be necessarily inferred that accused has been implicated. According to Sh. Sharma, such rooftop conversation was also heard by independent witness and whatever he heard never indicated any demand or acceptance. I have heard such conversation and undoubtedly, the conversation is not very clear and is not in full but fact remains that at least pre-designated signal is clearly heard even in such conversation. Some prosecution witnesses, in their zeal, did claim that demand was found to be clearly audible even in such CINEX DVR and cassette made therefrom. However, it is not so. But, as already said, confusion can always crop up in this regard, as Coby DVR was very much clear on this score and demand was audible distinctly therein and after apprehension of accused, contents were played from both these gadgets i.e. CENIX DVR & COBY DVR.
10.27 Sh. Deepak Kumar Tanwar, Senior Scientific Officer Gr. II-cum- Assistant Chemical Examiner had carried out auditory examination and voice spectrographic examination and according to him, Q2 (COBY DVR used for recording the spot conversation by complainant), Q3 (cassette in which the complainant had recorded the conversation which he had with accused in the morning of 11.05.2006) and Q4 (COBY DVR in which the complainant had recorded the conversation with accused on 05.05.2006) contain the probable voice of complainant Rajiv Sharma and Q2 & Q4 were containing the probable voice of accused. He could not give definite opinion regarding probable voice of accused as contained in Q1 because he was not having the requisite specimen data for comparison as no common words/sentences could be detected in such partially recorded conversation. As regards Q3 also, he could not give any definite opinion for want of clearly audible common sentences/words for comparison with the specimen voice of the accused. As per his opinion, cassettes Q1 & Q3 were re-checked for continuity of original sound and these were found in order and his report is found based on linguistic features, phonetic features and he also took note of formants, formants frequency distribution, notation pattern and other general visual features in voice-gram. I have carefully gone through his cross-examination.
10.28 Undoubtedly, it is bit bewildering as to how a music piece found its way in the COBY DVR, a brand new one which had been provided to the complainant by CBI. In this DVR, complainant had recorded the spot conversation on 11.05.2006. There was no occasion for any such music piece i.e. MP3 file of Modern_Jazz_Samba finding its way in such COBY DVR. It has thus been strongly canvassed by the defence that the entire recording contained in Coby DVR should be discarded as there is apparent tempering and some sort of deliberate editing as well. I would rather say that if CBI wanted to merely falsely implicate the accused, it would not have left any such lacuna at all. It only seems to be due to inept handling of gadgets by CBI while transferring the contents. It must have used computer system of complainant for playing Coby DVR and also for transferring the contents. There is every possibility that due to lack of proper care, such music file also got transferred to Coby. Complainant did possess such music file as the same music file is found stored in his own COBY DVR Ex. P-18 which contained the alleged conversation dated 05.05.2006.
10.29 COBY DVR i.e. Ex. P-18 (Q4) owned by complainant already in which he had recorded the conversation on 05.05.2006 is having serial number 04260076240 and the brand new COBY DVR which was handed over to complainant by CBI on 11.05.2006 and which has been exhibited as Ex. P-9 (Q2) is having number as 04260076141. "Is it a strange coincidence or there is something which is being concealed from the Court?" is a question posed by defence. Normally, any commoner does not know about such types of sophisticated recording device. But still, it is to be seen whether non-explanation of the same would tear down the prosecution case in toto?
10.30 Defence has contended that complainant was in service and he must have been provided such device by CBI only and if that is so, the complainant would have certainly met CBI officials before 11.05.2006 as well. It has thus been claimed that complete facts have not been placed before the court and since there is an apparent attempt to portray a misleading picture, a serious doubt arises with respect to the authenticity of the case of prosecution. Complainant Rajiv Sharma was extensively cross-examined but, surprisingly, he was not put any question whatsoever as to from where did he obtain or procure such DVR. It rather clearly indicates that defence has no qualm or dispute about his possessing any such COBY DVR. It was not suggested to him that he was already in touch with CBI officials. It was not suggested to him that such COBY DVR was rather given to him by CBI. Moreover, the conversation recorded in such electronic gadgets is only to be utilized for corroborative purpose. PW1 Rajiv Sharma has come up with a very convincing deposition and merely because these devices are found to be of same make and having serial number within a close distance would not be sufficient in itself to discard the oral and convincing deposition made by complainant Rajiv Sharma.
10.31 I have carefully considered all the material and contentions raised in relation to electronic evidence. Merely because the receiver installed at the rooftop malfunctioned and did not record the entire conversation, the parallel recording being made by complainant on separate COBY DVR cannot be robotically excluded.
10.32 Sh. Sharma has also contended that since COBY DVR remained switched on, as per the case of CBI, it should also contain the challenge made by TLO when accused was allegedly caught red-handed. I have heard DVR and there is found to be some audio even after the accused had made exit. Special signal is found made for the second time simultaneous with the sound of opening of door which means that when the accused was making an exit from the second floor flat of the complainant, such signal was again given by the complainant. There is some commotion after they both alighted down and then it is also apparent that he was brought back to the same room as same noise of opening of door is heard again. Though challenge and introduction in so many words is not to be heard but it can be deduced from the following commotion containing partially audible conversation that accused was caught and was brought back to same Drawing-room and till that time COBY DVR remained switched on.
10.33 It also cannot be inferred that the entire conversation contained in COBY DVR (Ex. P-9) is doctored because the laptop/computer of the complainant was used. Ideally, CBI should have made its own arrangements and should have carried the necessary equipments and gadgets with them for the purpose of transferring the contents. They did not carry these gadgets/instruments/equipment with them and used the system of complainant and, therefore only, the music file found its way in such COBY DVR.
10.34 Sh. Sharma has expressed his surprise as to how there were folders, namely, 'FOLDER' and 'PLAYLIST' in COBY DVR. According to him, existence of these folders reflect that the COBY DVR, allegedly a brand new one, was not new and rather such folders were created subsequently with some ulterior motive and then COBY DVR was handed over to complainant. I, however, do not find any merit in such contention because such type of recording device normally contains system folders or default folders and these would be, therefore, present even in any new recorder.
10.35 Interestingly, transcription was not sent to CFSL and CFSL accordingly sent request to CBI for providing transcription. Pursuant to such request, transcription was prepared by IO Sh. Rishi Prakash and was sent to CFSL on 06.06.2006. Formal letter in this regard was also dispatched on 07.06.2006 which has been proved as Ex. PW16/B. As far as COBY DVR (containing conversation dated 05.05.2006) and audio cassette (containing morning conversation dated 11.05.2006) are concerned, these had been already sent to CFSL. As far as spot conversation is concerned, admittedly, investigating agency was having a spare copy.
10.36 Learned defence counsel has contended that it is not clear as to how IO was able to prepare transcription related to such DVR & cassette which had been provided by complainant at Ten Guest House as these were sent to CFSL and were never returned by them for enabling preparation of transcription and CBI did not possess any spare copy thereof. It has also been exclaimed as to how Rishi Prakash was able to decipher as to what was spoken by whom when admittedly he did not call any prosecution witness or take help of any other CBI official in preparing such transcription.
10.37 I, however, cannot be oblivious of the fact that these DVR and cassette were submitted by none other than complainant only and CBI must have retained a spare copy thereof as well. Simply because such fact does not stand mentioned anywhere in the challan at all would not give any jolt to the case of prosecution more so when I.O., in no uncertain terms, in his cross examination revealed that he had prepared the transcription with the help of copies kept for investigation purpose. No further suggestion to the contrary has been put to him. His version that he himself had prepared transcription also remains unshaken.
10.38 Here I would also like to add that as per CBI, accused was using mobile number 9871876826. In his complaint Ex. PW1/A (D-2), complainant never made any reference to any mobile number of accused D.K. Srivastava. It rather talks about the residence telephone number and address of accused. However, during investigation, CBI learnt that accused was using said mobile number 9871876826 though it was found to be in the name of one Sh. Deepak Kumar. During investigation, CBI had recorded statements of various officials of CBI in order to demonstrate that it was accused who was using said mobile number but unfortunately no such witness was examined during the trial. I would also like to mention here that PW1 Rajiv Sharma in his entire examination-in-chief did not make any reference of mobile number of accused D.K. Srivastava though he did refer about it before CBI when his statement was recorded. Fact, however, remains that when he was cross-examined, defence suggested to the complainant that such number was never used by the accused and he labelled such suggestion as incorrect. Thus, such fact has somehow appeared on record through complainant albeit courtesy defence.
10.39 PW2 Insp. A. Sathiamoorthy has also not whispered anything about the mobile number of accused. PW17 Rishi Prakash happens to be the investigating officer and he did mention that he had collected the CDR with respect to mobile number 9871876826. Such CDR is found contained in D-29 and CDR along with letter from Airtel has been collectively proved by him as Ex. PW17/C. In his deposition, he did not try to elaborate as to how this mobile number was owned by accused D.K. Srivastava. As per Ex. PW17/C, such mobile number was subscribed in the name of one Deepak Kumar of Mahender Garh, Haryana. Such Deepak, it seems, could not be contacted during investigation.
10.40 According to defence, CBI is trying to entangle and frame him by thrusting such number upon him, 10.41 However, it cannot be said that accused had no connection with said number. His mere denial would not take his case anywhere because a careful perusal of such CDR would clearly reflect that accused himself had also been making umpteen calls from his own landline number to said mobile number 9871876826. Such calls were even made on 10.05.2006 and even on the fateful day i.e. 11.05.2006, an outgoing call is found made from said mobile number to the landline residential number of accused just before he had reached the house of complainant on 11.05.2006. This apparently demonstrates that there is some link between said mobile number and accused. Such fact has to be within the special knowledge of accused and his bald denial would not serve any purpose. Surprisingly, when DW2 Sumit Srivastava (brother of accused) entered into witness box and was available for cross-examination, CBI did not try to grab such opportunity. It could have very easily extracted out the mobile number of accused or being used by the accused. After all, a brother would be in a better position to supply such information. Be that as it may, I cannot be unmindful of the fact that there are incoming and outgoing calls between said mobile number and the residential landline number of accused which clearly indicates connection between these two numbers and, therefore, it was rather for the accused to have explained about it and, therefore, even if the prosecution has not been able to come up with desired explanation, accused cannot drive home any advantage. Undoubtedly, the CDR is not carrying any certificate u/s 65B of Indian Evidence Act. CBI has though faltered on this aspect but fact remains that call details are found to be in continuity and even in Parliament Attack case AIR 2005 SC 3820, CDR was not discarded for want of such certificate and it was held that the printouts pertaining to the call details exhibited by the prosecution were of such regularity and continuity that it would be legitimate to draw a presumption that the system was functional and the output was produced by the computer in regular use, whether this fact was specifically deposed to by the witness or not.
10.42 Moreover, even if such CDR of mobile connection in the name of Deepak Kumar is altogether excluded from the scope of appreciation of evidence, the overwhelming oral evidence of complainant is found to be sufficient in itself. It really does not matter much whether the call was made to the landline number of accused or to the mobile number. Fact remains that accused had in fact gone to the house of complainant on 11.05.2006 and he owned up such fact as well and, therefore, this issue somewhat pales into insignificance.
10.43 A contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under Evidence Act. It is res gestae. In S. PRATAP SINGH V. STATE OF PUNJAB, AIR 1964 SC 72, Apex Court considered the issue and clearly propounded that tape recorded talks are admissible in evidence.
10.44 Reference be also made to Ram Singh & Ors vs Col. Ram Singh AIR 1986 SC 3, R. M. Malkani v. State of Maharashtra AIR 1973 SC 157, two most landmark and often-quoted judgments on the subject. Here, the most material witness i.e. complainant himself has identified the voice of accused in such conversation.
10.45 Undoubtedly, science of voice recognition is not as accurate and prefect as the science of fingerprinting. It is still embryonic at least in Indian context. I am also mindful of the fact that electronic evidence is essentially to be used for substantiation purpose. It cannot be taken as primary evidence. Even as per report of expert, opinion only suggests that questioned voice was probable voice of the concerned speaker. This court is also conscious of the observations given by Apex Court in the case of Nilesh Dinkar Paradkar Vs. State of Maharashtra (2011) 4 SCC 143 to the effect that evidence of voice identification is, at best, suspect, if not, wholly unreliable.
10.46 Thus, electronic evidence is required to be weighed up in the backdrop of primary evidence only. It is being evaluated in order to purely comprehend whether it lends assurance and credibility to the version of CBI or not. It is a piece of corroboration only. I will not be exaggerating if I say that even if such conversation contained in DVR, cassette and CD as well as CDR are excluded altogether, oral testimony of complainant is found to be unshaken, convincing and sufficient enough. It is of such sterling quality that, really speaking, it does not require any corroboration.
REPORTS OF FORENSIC EXPERTS 11.0 As per case of CBI, hand washes were taken and accused was asked to dip his hands in the colorless solution of sodium carbonate. Solution, in which right hand was dipped, turned pink in color but there was no chemical reaction or change of color with respect to the left hand wash. As per the charge-sheet and the various statements recorded u/s 161 Cr.P.C., the solution, pertaining to RHW, turned pink but there is no specific reference with respect to change of color or chemical reaction with respect to LHW. When TLO entered into witness box, he categorically deposed before the Court that when the accused was asked to dip his fingers of the left hand, solution did not indicate any chemical change and its color remained the same. Complainant also claimed so. Thus, even at the spot, colorless solution of LHW did not indicate any visible chemical change in the sense that there was no change in the color.
11.1 PW14 V.B. Ramteke, Senior Scientific Officer Gr.-I examined the hand-washes and as per the laboratory examination and analysis, these gave positive test for the presence of phenolphthalein and sodium carbonate.
11.2 Be that as it may, the change of the color is not the only criterion. It is the presence of phenolphthalein which is of paramount importance and Sh. Ramteke has, in no uncertain words, come up with a finding that both these hand-washes i.e. RHW & LHW gave positive test for the presence of phenolphthalein and sodium carbonate.
11.3 Defence has contended that such report is meaning-less as complainant was very much handling the polythene even in his house and when beer and glass etc. were offered, there was every possibility of transfer of powder from complainant to accused. It has also been claimed that even pre-trap Memo shows that complainant had not washed his hands at all. Complainant had brought back such polythene in his house and had kept the same in his bed-room. He brought that out from his bed-room only when, accused said "De do". I have very minutely scrutinized the deposition of complainant and he nowhere claimed about his washing hands before the arrival of accused in his house that evening. He must have also shook hands with him. He must have also offered glass and beer to him and there is a possibility of transfer of powder even before the actual handing over of bribe. Thus for want of compelling material to show that complainant had washed his hands after he had kept the polythene in his bed-room, I have no option but to exclude this report.
11.4 PW15 Sh. S.K. Chadha is Senior Scientific Officer Gr.-I-cum- Assistant Chemical Examiner and he had examined chance-prints of accused. It has come on record that accused had consumed beer at the residence of complainant at the residence of complainant on the evening of 11.05.2006 and the glass which he had used for consuming beer was also sealed and seized. Such glass has been exhibited as Ex. P-13. It was put in one box-container of Black Label bottle and such carton has been proved as Ex. P-14.
11.5 As per PW15 Sh. S.K. Chadha, one letter Ex. PW15/A (D-18) was addressed to Director, CFSL by DSP/CBI whereby it was requested that some official be deputed for taking fingerprints of accused D.K. Srivastava and Sh. Yogender Singh, Lab Assistant was deputed. PW10 Sh. Yogender Singh has deposed that he had gone to Lok Nayak Bhawan CBI office on 12.05.2006 and had taken fingerprints of D.K. Srivastava. These specimen fingerprints of accused are found to be there in three sheets i.e. Ex. PW10/A (part of D-19). There is no dispute over the collection of such fingerprints of accused.
11.6 PW15 Sh. S.K. Chadha has further deposed that letter dated 16.05.2006 was received vide which one sealed cloth parcel Mark Q1 containing one empty glass for development of chance-print was sent. Such letter has been proved as Ex. PW15/C. Seal was found intact and he developed chance-prints from such glass. He was able to develop seven chance-prints numbered as Q1 to Q7. After developing such chance-prints, these were sent to the Photo Division of CFSL and such photographs were also given same number i.e. Q1 to Q7 and thereafter Sh. S.K. Chadha prepared report Ex. PW15/D. 11.7 CFSL was asked to compare such chance-prints with the specimen fingerprints and such examination was carried out by Sh. Chadha and on careful examination and comparison, he opined that chance-print marked Q2 was identical with the specimen right middle finger impression of accused and he noticed identical ridge characteristics. His such report is Ex. PW15/F. 11.8 When same glass is held by any person number of times, it may so happen that due to repeated grasping and clasping of the glass from different angles, fingerprint impression may get smudged or interlaced and, therefore, even if only one such chance-print matched with the fingerprint of accused, it would not make any adverse impact over the case of prosecution.
VERSION PROPOUNDED BY DEFENCE WITNESSES 12.0 It will be important to mention that Sh. Maharaj Singh was a prosecution witness (cited at serial no.21 of the list of witnesses.) However, he has not been examined by the prosecution. On the other hand, defence has examined him.
12.1 His statement u/s 161 Cr. PC, which is Mark DW1/PX, indicates that he knew accused and used to meet him very frequently and also used to take beer with him almost daily. He was in the business of real estate. According to him, accused used to consider him as a member of his family and on 11.05.2006, accused asked him to meet him in his office at 6.00 PM claiming that they were to go to the house of Sumit Srivastava in Vasant Kunj in connection with purchase of flat for Sumit and when he reached the office of accused at about 7.00PM, accused and one Constable (under the control of accused) accompanied him and they all three left for Vasant Vihar. They reached CBI Colony where said Constable left for his home and then they both came towards the house of accused from there, instead of going to the house of Sumit Srivastava. He parked the vehicle near the park as accused told him that he would meet a friend and would return back. He waited outside near park for about 20-25 minutes and then CBI officials took him to a nearby house of Second Floor in C-6 Block where accused was also present and he was informed by CBI that accused had been caught red handed while accepting the bribe. His statement thus indicates that on the fateful day, he was waiting outside the house of complainant for the accused to return and CBI also took him to the flat of complainant after the accused had been apprehended.
12.2 Now let me see what he has to offer as defence witness. As per deposition of DW1 Sh. Maharaj Singh, he knew accused and his family very well. He visited the house of Sumit Srivastava in April, 2006 and learnt that Sumit and his wife had gone to one ground situated in C-9 Block to celebrate Assamese festival. He also went there. He met Sumit and his wife. Surprisingly, according to him, he also met Rajiv Sharma (complainant) and his wife as Sumit had introduced him to Rajiv Sharma claiming that he was his friend and he also told that wife of Rajiv Sharma was from Assam and Rajiv Sharma was introduced as an old acquaintance. Accused was also met there. His further deposition indicates that Sumit wanted to purchase a flat and even complainant Rajiv Sharma indicated that he wanted to sell off his one flat which was lying vacant. His further deposition is to the effect that he informed Sumit that one such flat of his liking was available. Naturally, he was referring to the flat owned by complainant.
12.3 I take a little pause here.
12.4 Maharaj Singh did not know, even if he is believed for a moment, Rajiv Sharma directly. He learnt about Rajiv Sharma only when Rajiv Sharma was introduced to him by Sumit Srivastava. If defence is to be believed then wife of Sumit Srivastava and wife of Rajiv Sharma were good friends as they both were from Assam. If that is so, would defence explain as to why if really Rajiv Sharma wanted to sell off his one flat, he would not directly inter-act with Sumit Srivastava? Further, as per Maharaj Singh, Rajiv Sharma used to ask him frequently as to why he could not bring any customer for the flat and then he informed him as well that even Sumit wanted to purchase a flat and Sumit wanted his brother i.e. accused to see that flat before finalizing the deal. Thus, Rajiv also learnt that Sumit Srivastava wanted to buy a flat and one flat owned by Rajiv Sharma which Rajiv Sharma wanted to sell was as per the liking of Sumit Srivastava. In such a situation, commonsensically, they would have directly interacted without the intervention of any third person. This makes the defence story suspect and fishy.
12.5 Maharaj Singh then deposed that Rajiv Sharma gave all the details about the flat and he himself then also informed Rajiv Sharma about D.K. Srivastava and told him that he would bring him to his house for showing such flat. Accordingly, on 11.05.2006 accused reached the office of Maharaj Singh and then they went to the flat which Rajiv Sharma intended to sell. He parked the car and requested accused to go towards the flat and since he spotted his one relative, he started conversing with him.
12.6 This again looks very awkward and inexplicable. Maharaj Singh was a property dealer and he had come there with specific purpose. It is hardly digestible that he would start talking to his relative and would ask accused to go alone towards the flat merely on the basis of his indication.
12.7 He then claimed that after some time when he reached near the flat of Rajiv Sharma, he found Rajiv Sharma and accused D.K. Srivastava coming down from the staircase and he also spotted that one hand of D.K. Srivastava was on the railing and the other was on the shoulder of Rajiv Sharma. According to him, D.K. Srivastava was barely able to climb down and Rajiv Sharma was holding him with his one hand and Rajiv Sharma was carrying a polythene bag in his other hand. While climbing down, accused stumbled and fell and Rajiv Sharma lifted him by his both hands and in the meanwhile 3-4 persons came there on which he (Maharaj Singh) yelled as to what had happened. They took accused upstairs and when he questioned, he was given slaps and he was also taken upstairs. Even inside the flat of Rajiv Sharma, he was given another round of beating by Rohit Kapoor. He was made to stand outside and the photography of the articles lying in the house was started and such photographs were taken by a person by the name of Gautam. He also claimed that accused was completely under the influence of liquor and was drunk and was barely able to sit. Sh. Maharaj Singh was taken to another room and accused remained seated in the couch completely intoxicated. According to him, later on, CBI had searched his office and house also. According to him, he visited CBI office twice as he had been called by CBI and he was instructed to forget the incident and not to meet the accused.
12.8 On careful perusal of his testimony, I feel that he has deposed as per the need and aspiration of defence to toe the line of defence story and to somehow corroborate the defence version regarding supplying a reason for accused to visit the house of the complainant. His testimony does not instill any confidence at all. He is rather found to be a tutored witness of defence. It would be hardly believable that he would be introduced to Rajiv Sharma and his wife in the manner projected by the defence. It is also hardly believable that he would be acting as broker for any sale transaction of flat of Rajiv Sharma, when Rajiv Sharma himself, as alleged by the defence, knew Sumit Srivastava and accused very well. It is also surprising as to why he did not accompany accused to the flat of Rajiv Sharma if at all he was acting as a broker or agent. It is also equally surprising as to how he was able to know name of the photographer as Mr. Gautam and the name of the CBI official as Rohit Kapoor. I need not to remind myself that CBI officials do not wear any prescribed uniform or display name-tag. Moreover, if at all any such thing had happened and if at all he had been also beaten up by CBI official, he would have certainly made some complaint somewhere but his observing complete silence clearly depicts hollowness in his version. His evidence looks completely manufactured, artificial and inculcated and he has only deposed in complete synchronization with the defence theory. Unfortunately, his previous statement is u/s 161 Cr.P.C. only and not u/s 164 Cr.P.C. I, therefore, find myself unable to haul him up for committing perjury in view of legal position as further laid down in 2013 (201) DLT 657 Delhi.
12.9 Even spot conversation dated 11.05.2006 does not indicate that accused had come to the house of complainant for that limited purpose of getting any flat for Sh. Sumit Srivastava.
12.10 I have also carefully gone through the cross examination of complainant Rajiv Sharma. Surprisingly not a word has been suggested to him that he ever wanted to sell his flat or that he knew Maharaj Singh. It has not been suggested to him that he had contacted Maharaj Singh for sale of his flat. It has also not been suggested to him that he had met Maharaj Singh in any Assamese festival when he was accompanied by his wife where Sumit was also present with his wife where Maharaj Singh was introduced to him. On the contrary, it has been suggested to him that accused had gone to his house on 11.05.2006 as a reciprocal visit.
12.11 PW11 Rohit Kapoor, TLO has pleaded his ignorance about Maharaj Singh or about his being called there later on. This is though not understandable but then, it will not make any substantial difference because Maharaj Singh was not a witness to the actual occurrence at all. Role of TLO was upto the completion of trap. I have seen his statement u/s 161 Cr.P.C. and also his deposition before the Court. He has not uttered about Maharaj Singh. Merely because he has not mentioned about Maharaj Singh would not mean that there is any false implication as such. Statement of Maharaj Singh was recorded by IO Rishi Prakash on 15.05.2006 and on fateful day after the trap, he was merely called by CBI officials and was informed that accused had been caught red-handed while accepting bribe. Merely because TLO Sh. Rohit Kapoor does not remember any such name would not demolish the entire prosecution case particularly in view of the convincing testimony of complainant.
12.12 I would also add that Assam is not a small State. It is a big State spread over more than 30,000 square miles. Complainant has claimed that his wife was from Guwahati. According to defence, wife of Sumit Srivastava was also from Assam but, it has not been elaborated from which part of Assam. She herself has not entered into witness box. Defence could have produced her to substantiate the alleged close acquaintance between her and wife of complainant.
12.13 During trial, Sumit Srivastava placed on record copy of passport of his wife Nabanita. Her place of birth is found to be Shilong. Her address is of Shilong, Meghalaya. Ex. DW2/F even goes on to show that she studied in Shilong, Meghalaya. It needs no discerning eyes to see that Meghalaya is a different State than Assam. This, in itself, shows complete hollowness in the defence story and eliminates the possibility of there being any acquaintance between wife of complainant and wife of brother of accused. Perhaps, therefore only, accused has not ventured into the examination of Ms. Nabanita as a defence witness.
12.14 I have also carefully seen the testimony of Sumit Srivastava who has been examined as DW2 and I am of the considered opinion that defence cannot dig out any advantage from his testimony either more so when it is not established by the defence that he really needed any house in Delhi.
OTHER ISSUES 13.0 Learned defence counsel has contended that there are various infirmities in the prosecution case which indicate false implication as well as the complete hollowness in the case of prosecution. He has reiterated that there is creation of false evidence and suppression of true facts. Most of such issues have already been touched upon already.
13.1 Let me take up the remaining one by one.
13.2 Sh. Sharma has argued that there was apparently a reason for accused to have visited the house of complainant as accused wanted to buy a property for his brother. However, as per suggestion put to complainant, accused had merely come to the house of complainant on a reciprocal visit. I have already touched this aspect elaborately while considering the deposition of Maharaj Singh. Suffice it to say that even if accused had any reason to visit the house of complainant, he had no business to accept any bribe from him.
13.3 Of course, except for the two persons, who were at the rooftop, no one positioned at the ground floor could have got to know for sure that the trap was successful and that bribe had been accepted. Trap-team members at ground floor were not in a position to hear anything. But when accused was alighting down along with complainant, they saw accused holding packet in his right hand. In such a situation, TLO used his instinct and was able to figure out that trap was successful. Thus apprehending accused by TLO first, in the backdrop of such factual matrix, is not found to be skeptical.
13.4 Defence has resiliently canvassed that accused has been entrapped and implicated after he was made drunk by offering some deadly concoction. According to Sh. Sharma, complainant had acted in a malafide manner by offering drinks which was against the directions and guidelines of the TLO. On first blush, it might look to be substantial contention but keeping in mind the overall facts of the case, it turned out to be a hollow one. Accused had on previous visit i.e. 05.05.2006 taken beer at the house of Rajiv Sharma and it really does not matter much if he was offered drink on 11.05.2006. Moreover, merely because such glass, used by accused, was packed and sealed in a carton of Black Label Whisky does not mean that complainant had laced the beer with whisky and had prepared a concoction which made accused completely senseless. Such carton/box was provided by complainant merely to enable CBI to safely secure and seize the glass. Merely, because a box of Black label was used will not be indicative of the fact that whisky was served or that some concoction, in a clandestine manner, was prepared and served. Conversation contained in Ex. P-9 seems clearly audible which, in turn, indicates that accused remained coherent throughout despite taking beer. I have not been shown any CBI guideline and manual which may even remotely show that under no circumstance, any such suspect should be offered drinks.
13.5 Defence has also strongly relied upon Section 85 of Indian Penal Code. As per this general exception, nothing would be offence which is done by a person who at the time of doing such offence, is, by reason of intoxication, incapable of knowing the nature of the act provided he was intoxicated without his knowledge or against his will. I am of the considered opinion that Section 85 IPC does not stand attracted in the present case at all. Accused in his statement recorded u/s 313 Cr.P.C, in no certain words, admitted, in response to question no. 54, that beer was offered which he initially refused but later on agreed provided complainant also gives him company. There is nothing to indicate that he was made to drink or that he was administered drinks without his knowledge. I also do not find any reason to hold that he was given any concoction much less without his knowledge or otherwise which had any impact over his senses or made him incapable of understanding as to what was happening. Maharaj Singh was brought to the scene at a later stage only and naturally once accused was caught red-handed, accused must have got stunned, shocked and taken aback and it might have given impression to Maharaj Singh as if accused was completely drunk. Be that as it may, fact remains that accused had consumed beer but from the overall facts and circumstances of the case, it does not stand depicted that while under its influence, his mind was obscured to such an extent making him incapacitated or incapable of raising any demand or accepting any bribe. On the contrary, testimony of the complainant and recorded conversation clearly indicate that despite taking beer, he was conscious of everything happening around him and had made demand of bribe with specific intent knowing fully well the consequences flowing from his such illegal act. I would also hasten to add that voluntary drunkenness cannot be held to be an excuse or a general exception. Moreover, it would be a totally anomalous situation if I subscribe to such defence contention as no one can be permitted to reap fruits of one's own wrongs. No one can be permitted to have the cake and eat it too either.
13.6 I had called for the case diary and in such case diary, I came across MLC of accused D.K. Srivastava which shows that he was medically examined at Safdarjang Hospital on 12.05.2006 at about 10.30 am. He was brought to hospital by Inspector Rakesh Ahuja and Ct. Jagbir of CBI and nothing abnormal was detected (NAD) during such medical examination. It would have been appropriate if MLC of accused had also been made part of the relied upon documents. Since nothing abnormal was detected in such MLC, it was decided not to go for any further test in order to ascertain the quantity of alcohol in the blood stream of the accused. I do not consider the omission on this score causing any scratch over the case of prosecution.
.
13.7 Sh. Sharma has argued that there is no explanation as to why accused would demand another polythene packet from complainant. As per the case of prosecution, bribe money was contained in polythene of "Induben Khakrawala". Such polythene bag has been exhibited as Ex. P-5. It has been vociferously argued that if that was the case, where was the occasion for accused to have demanded another polythene bag. It has also been claimed that such wad of GC notes must have taken such a shape in the polythene bag so as to create an impression as if it was containing a sweet box and, therefore, complainant tried to entrap accused deliberately by passing on sweets or Namkeen, that too, after making him drunk. However, accused has come up with lame excuse on this score. Had it been the case of his accepting any sweet box, it would have been made clear by him even in his statement u/s 313 Cr.P.C. Moreover, I cannot ignore the spot conversation as contained in COBY (Ex. P-9) which indicates that accused had demanded bribe by claiming "De Do" followed by utterance of complainant "Chaar Lakh Hain Aap ko De Du". Complainant even asked him to count the same by claiming "geen le" to which accused that that it was not required by saying "Aare Nahin".
13.8 In order to appreciate this contention in the appropriate manner, I called for the case property during the course of final arguments as well and opened the same in the presence of Prosecutor, accused and defence counsel and it was noticed that polythene bag of "Induben Khakrawala" was somewhat see-through. GC notes were also produced along with the polythene and when such GC notes were put inside the polythene bag of "Induben Khakrawala", it was very easy for anyone to gather from outside that such bag was containing notes. Even the numbers could be read from outside. Wades of GC notes could not have given an impression as if any sweet box was contained in such polythene bag and, therefore, any impish person, having accepted the bag, would have certainly demanded another polythene.
13.9 It has also been argued by Sh. Sharma that CBI knew in advance that complainant was having two flats on second floor facing each other and it is not made clear by CBI as to why team members did not take position in the opposite flat and why they were positioned at ground floor. I do not find anything uncharacteristic or atypical. It is for the concerned TLO to decide as to what strategic position should be taken by his team members. He thought it prudent to station two persons at rooftop and remaining at the ground. Since accused was from CBI, perhaps it was decided not to ask any CBI official to remain inside in another room of said flat. Moreover, such flat of complainant was of relatively small size. According to Sh. Sharma, accused was in CBI and he was not such a fool that he would go to the house of complainant all by himself and would accept the bribe in the house of the complainant. In this regard he has also relied upon one judgment of Tej Bahadur Singh Vs. State of UP 1990 (Supp) SCC 125. Facts of that case were entirely different and in that case the attendant circumstances were found to be suspicious by the Apex Court particularly keeping in mind that the raiding party had reached the spot one hour in advance for making arrangement and even the accused had also reached an hour earlier before his scheduled visit. In that case rather, trap team had taken position in the adjacent room and the Apex Court observed that in such a situation, the presence of such outsider could have been detected by any human being using his sixth sense. If that being so, in the present case, CBI did the best by not putting any member of trap team inside that house. Moreover, situation cannot be universally generalized. Each individual has his/her own style, level of thinking, rational, maturity and confidence. One may be extra-watchful. One may be careless or over-confident. It is quite possible that, being over-complacent, accused threw all the caution to the winds and displayed audacity to go to the house of a suspect whose matter was being enquired by his Branch under his supervision only.
13.10 It has also been argued that there was no demand as such. I have seen the entire record and heard the conversation also and undoubtedly accused did not initially demand the bribe but when complainant informed him that he was having the money ready with him, he immediately demanded by claiming "De Do". Thus, demand is very much there even if it was on the basis of innocuous inducement of complainant who merely informed that he had the money. In Ram Krishan v. State of Delhi, 1956 SCR 182, it has been observed that the detection of crime may become difficult if intending offenders, especially in cases of corruption are not furnished opportunities for the display of their inclinations and activities.
13.11 Defence has relied upon one judgment of Supreme Court cited as Dilawar Singh Vs. State of Delhi AIR 2007 SC 3234 and has contended that delay affords opportunity to the investigating agency to create embellishment and introduce fabrication and, therefore, version of the investigating agency needs to be presented before the Court at the earliest available opportunity. Undoubtedly, in the present case, demand had been made on 16.04.2006 and the matter was reported to CBI on 11.05.2006. The delay is somewhat explained in the sense that complainant was an accused/suspect in the preliminary enquiry. He must be also worried about his own concern in such preliminary enquiry. He also must be craving and itching to find out as to whether the demand was in the air or whether ultimately he would be left with no option but to yield to such demand. He also thought of recording conversation. It was obviously with the idea that even if he had to report the matter to investigating agency, he is possessed with concrete evidence. He must have felt that since he himself was a suspect, CBI may not believe him unless and until he had any substantial evidence. In such a backdrop, defence cannot drive home any advantage from the aforesaid judgment.
13.12 It seems obvious that photographer was summoned at the spot. RTI made it amply apparent. However it is not clear whether he had, in fact, taken any photograph or not. It is a case related to trap and I am not really able to decode as to what real advantage anyone could have derived through such photographs after the bribe had been accepted already. Court has the benefit of hearing complainant as well as the live conversation and such subsequent photographs of the spot would not have been of any real significance. However, if the photographer had been summoned, CBI should have admitted during the trial irrespective of the fact whether any photograph was taken or not.
13.13 Defence has contended that COBY DVR, which was in the pocket of complainant at the time of recording of spot conversation, contains noise of cracker. He has expressed his astonishment as to how such sound could have been recorded if the recorder was in the pocket of complainant. I, however, do not find anything strange in this regard. Cracker can be burst in any religious procession, marriage procession or at the time of celebration in connection with any festival or otherwise. As cracker makes a loud noise, even if recorder was in the pocket of complainant, it could have still recorded such noise of cracker. Moreover, one off sound of cracker itself would not suggest any tempering.
13.14 It really does not much matter even if the voice-graphs have not been placed on record. Court is not bound by the evidence of the experts which is, to a large extent, advisory in nature. The Courts have full powers to derive its own conclusion upon considering the opinion of the expert cautiously and upon taking into consideration the authorities on the point on which he deposes. Real function of the expert is to put before the Court all the materials, together with reasons which induce him to come to the conclusion, so that the Court, although not an expert, may form its own judgment by its own observation of those materials.This Court itself also heard the recorded conversation which was found to be in continuity and did not give even a slightest hint of any there being any tempering or intrusion. The conversation, as appearing in COBY DVRs, contains properly audible voices of the concerned speakers and there is no question of importing any data from the voice bank allegedly in the possession of complainant and then to create a fabricated conversation with such finesse and perfection that it would even avoid detection while under forensic tools. I have no hesitation in holding that the conversation so appearing is the actual conversation which had transpired between the complainant and the accused and that there is no fabrication at all.
13.15 It has been vehemently contended by defence that there was a ploy and conspiracy and, therefore, name of Sh. Sathiamoorthy was shown as one of the bribe-demander. According to him, complainant had drafted his complaint in collusion with Sathiamoorthy and, therefore, name of Sathiamoorthy was deliberately mentioned in such complaint so that nobody gets any reason to believe that Sathiamoorthy was behind such story of false implication. I, however, do not find any merit in this contention being far-fetched and illusory. Needle of suspicion was directed towards Sathiamoorthy as according to complainant, at one point of time even Sathiamoorthy had claimed that everything was in his hands. It was on the basis of the spot conversation and the disclosure made by accused D.K. Srivastava that it finally emerged that Sathiamoorthy was not involved in the matter at all and accused had demanded entire money for himself. Sathiamoorthy would not have dared to entangle himself in such type of matters as a ploy.
13.16 According to Sh. Sharma, CBI should have also enquired about the reputation of other two persons named in the FIR. I, however, feel that recorded conversation, which had been produced by the complainant, clearly indicated that it was accused D.K. Srivastava only who demanded money for himself and since the meeting between complainant and accused had been fixed for same evening, probably no requirement was felt in making any such discreet enquiry qua them and trap was decided to be laid without wasting any time. Be that as it may, it does not have any undesirable reflection over the case of CBI.
13.17 Minor and insignificant omissions are bound to appear in every criminal trial. There would not be any criminal trial which would be free from such tiny contradictions and omissions. The court is only supposed to see whether the same is material or not. The omissions or shortcomings pointed out by the defence, actually speaking, do not go to the root of the matter and, therefore, do not make the prosecution story doubtful. In the case of Babasaheb vs. State of Maharashtra 2009 (1) AD CRL. SC 576, it has been observed that trivial discrepancies ought not to obliterate otherwise acceptable evidence. It has been held that unless the contradictions are material, the same cannot be used to jettison the evidence in its entirety.
13.18 It is almost impossible to come across a single case where the investigation would be completely flawless or foolproof. Court should not tax or bother about minor inconsistencies and rather should ensure that the criminal justice system is salvaged despite such minor hiccups.
13.19 Sanction has been proved as Ex. PW7/A. Prosecution has examined PW7 Sh. V.L. Kantha Rao who has deposed that Central Government had accorded sanction u/s 19 of Prevention of Corruption Act for prosecution of accused and order was issued by and in the name of the President as the Central Government was competent authority to remove the accused i.e. Sh. D.K. Srivastava, DLA/CBI. He has also deposed that sanction was accorded on the basis of documentary evidence gathered by CBI and as per perusal of the entire material regarding the allegations and circumstances, prima facie case was found made out. He also deposed that all such documents and material were produced before him and he examined the same and then put the papers before the competent authority i.e. the Prime Minister and approval of the competent authority was obtained on file and consequent to such approval, he signed the sanction order being authorized officer under the Rules of Authentication to authenticate the order on behalf of the President of India. Thus, sanction of prosecution is found in order and has been found accorded after due application of mind.
JUDGMENTS CITED AT THE BAR 14.0 Defence has, along with its memorandum of arguments, also furnished case law.
14.1 I have seen all such cited judgments. Before considering same, I would like to remind myself that each case has its own peculiarity and special features. Factual matrix of any two case would never be same and, therefore, disposal of cases by blindly placing reliance on a precedent is not proper because one additional or different fact may make a world of difference between conclusions in two cases. Reference in this regard be made to Union of India & Anr. vs. Arulmozhi Iniarasu & Ors (2011) 9 SCR 12.
14.2 Relying on Ramjanam Singh Vs. the State of Bihar AIR 1956 SC 643, it has been contended that if complainant deliberately tempts the accused without there being any specific demand, no offence can be said to be made out. Facts of the present case are completely different as it becomes very much apparent from the evidence of the complainant that when complainant informed that he had been able to arrange for the money, accused then immediately put his demand forward. Thus, defence cannot dig out any advantage from said judgment. Moreover, laying of trap is a recognized and judicially approved method of catching any such person having nefarious and sinister design.
14.3 Defence has relied upon G.V. Nanjundiah Vs. State (Delhi Administration) AIR 1987 SC 2402 & Panchanan Raut vs. State of Orissa 1991 Cr.L.J 2442 and it has been contended that good conduct and character of the accused is relevant in trap cases and since accused was always rewarded with 'outstanding' remarks in his ACRs and had clean and impeccable credentials as contrast to the complainant who was booked even in TADA case, factum of acceptance of bribe does not click to reason. I have seen the aforesaid judgments and even in Panchanan Raut (Supra), it has been observed that character evidence cannot outweigh the positive evidence in regard to the guilt of a person though it may be useful in doubtful cases. In the present case, I do not find the case to be of doubtful nature as it stands established that there was a demand and acceptance of bribe and even recovery of bribe from the conscious possession of accused stands proved. Case of G.V. Nanjundiah (Supra) has been additionally relied upon by the defence and it has been argued that money in the present case was also attempted to be passed on as if accused was given any sweet box. I have already considered such aspect and negated the same.
14.4 Defence has contended that complainant was a person of suspicious character involved in TADA and CBI matter and no conviction can be based on testimony of such a witness. However, testimony of any witness cannot be rejected merely on the ground that such person is having shady or doubtful characteristic. Testimony of every witness needs to be scrutinized on its own merits and court is not expected to show any bias in view of the background of any witness. Reference be made to Ram Sarup Charan Singh Vs. State AIR 1967 Delhi 26.
14.5 It has been argued by defence that testimony of TLO, in itself, is not sufficient and if the conduct of the police officer is found to be unnatural, there is always a possibility of false implication. It has also been argued that conviction cannot be recorded on the basis of testimony of any biased and interested TLO. Reliance has been placed on State of UP V.s Dr. G.K. Ghosh 1985 Cr.L.J. 904: M.K. Harshan Vs. State of Kerala AIR 1995 SC 2178 and Amrishbhai Manubhai Bramhabhatt Vs. State of Gujarat 2007 Cri.L.J. 3651. I am of the view that these judgments are not applicable in the present case at all as I do not find any reason to hold that TLO was having any enmity or animosity to falsely implicate the accused.
14.6 Relying on Surya Bhan Vs. State of Maharastra 1995 Cr.L.J 107 Bom and Babu Lal Bajpai Vs. State of UP AIR 1994 Supreme Court 1538, it has been claimed that neither accused had any motive to demand bribe nor the motive has been proved. Facts of the present case are totally different. It is not a case where complainant had tried to thrust any money on accused. It is found to be a case of clear-cut demand and consequent acceptance. As DLA since accused was having full control over the file of preliminary enquiry and since he knew nitty-gritty of such enquiry and since the Final Report-II was to be routed through him, he was in a position to show favour to suspect (complainant) and, therefore, the motive is also there and gives him a reason to demand bribe. At the cost of repetition, I would also remark that motive actually does not have much role to play in such type of matters related to corruption.
14.7 Witness of defence is entitled to equal treatment and equal respect as that of prosecution and, therefore, there cannot be any debate with the principle of law found mentioned in State of Haryana Vs. Ram Singh 2002 (2) SCC 426 and State of Bihar Vs. Munshi Prasad 2002 (1) SCC 351. However, in the present case, testimony of defence witness has been discarded as Maharaj Singh has been found to be a tutored witness and his testimony seems to be customized and tailor-made as per the defence inputs and the testimony of DW2 Sumit Srivastava also indicates that he had no reason to buy any flat in Delhi.
14.8 There is no dispute with the principle that conviction cannot be recorded on the basis of probabilities. There is also no dispute that there has to be evidence indicative of demand and acceptance. Contradictions and inconsistencies, exaggerations or embellishment are case-specific and these are required to be evaluated in the peculiar background of each case and, therefore, judgments cited by defence on this aspect would not be automatically applicable. I have already noted that minor and insignificant omissions, which do not go to the root of the matter, cannot be given any weightage.
14.9 As regards tape recorded conversation, it is not in dispute that it can be relied upon as corroborative evidence provided there is identification of voice, conversation being relevant to the matter in issue and there being proof of accuracy of such tape recorded conversation. In the present case, conversation is found to be relevant and there is identification of voice also and there is nothing to show that such conversation doctored.
14.10 Keeping in mind the peculiar facts of the present case, defence also cannot dig out any advantage from Satpal Negi Vs. State of Haryana 1996 (1) Crimes 408 P&H, Abdul Rashid Ansari Vs. State of UP 1993 (2) Crimes 261 All., M.O. Shamsuddin Vs. State of Kerala 1995 (3) SCC 351; Suresh Kumar Shrivastava Vs. State of Madhya Pradesh 1994 (2) Crimes 68 MP, Om Prakash Vs. State 1998 (4) AD (Delhi) 93; Nanji Ranchoddas Tawadia Vs. State of Maharashtra 1994 (1) Crimes 67 BOM. and Raghbir Singh Vs. State of Punjab. In the present case, as already noticed above, testimony of complainant as well as of independent witness Sh. Tomar and TLO is found to be trustworthy, convincing and believable and I do not find any material contradiction or inconsistency amongst their testimony. Needless to say that conviction can be based even upon the sole evidence of the trap laying officer. Reference be made to State of U.P. v. Zakaulla, (1998) 1 SCC 557.
14.11 In Som Parkash Vs. State of Delhi (1974) 4 SCC 84, it has rather been held that evidence of higher officers of the Indian Police, especially in the Special Police Establishment deserves better credence.
14.12 I have seen Satpal Vs. Delhi Admn. AIR 1976 SC 294 and there is no disagreement with the principle propounded therein that evidence of any witness has to be read as a whole and no inference can be drawn by merely picking up a sentence or two. Evaluation, in the instant case, is derived by comprehending the entire evidence. Rather, it is defence which is trying to dig out some futile mileage by picking up one line appearing in the cross-examination of complainant and attempting to portray the COBY DVR was never switched on by him on 11.05.2006 whereas his entire evidence, when read in totality, does not reflect so.
CONCLUSION 15.0 Thus, my foregoing discussion persuades me to hold that CBI has been able to prove its case. Testimony of complainant inspires absolute confidence. Elements of demand, acceptance and recovery stand proved. Moreover, presumption, as stipulated u/s 20 of Prevention of Corruption Act also stands attracted with respect to Section 7 of Prevention of Corruption Act.
15.1 I would hasten to supplement that imperfect investigation does not give right to any accused to seek acquittal robotically or as a matter of right. Investigating agency can always be reprimanded by the Court for its slackness but the Court is not supposed to put its seal of affirmation on such act by acquitting the accused due to any such lapse. Before curtain call, I would certainly like to observe as under:-
a) Use of technology has become order of the day. In Som Prakash (supra), it was, so aptly, observed as back as in 1974 as under:-
".....It is but meet that science-oriented detection of crime is made a massive programme of police work, for in our technological age nothing more primitive can be conceived of than denying the discoveries of the sciences as aids to crime suppression and nothing cruder can retard forensic efficiency than swearing by traditional oral evidence only thereby discouraging the liberal use of scientific research to prove guilt."
b) But then, CBI needs to know all the niceties and intricacies involved with the use of such gadgets. They should use the most modern and tamper- proof gadgets which, as far as possible and practicable, should be made part of case-property. Every care should be taken while transferring contents from these to other devices. These gadgets are not very costly and it should also be ensured that these have proper provision for time-stamping. Proper date and time should be accurately fed in these gadgets. CBI should also be aware of the various provisions of electronic evidence and should always comply with the same in true letter and spirit. Else, corroboration which is normally attempted to be sought through these gadgets would rather hit and weaken the primary evidence. If CBI does not know how to handle or use these electronic gadgets and electronic evidence, I would go to the extent of saying that CBI would be then better advised not to use those at all instead of mis-applying and improperly handling those. I will not mince any word in this regard as in most of the cases, it is experienced that CBI does not deal with the electronic evidence in the desired manner and the inept handling is causing more harm than good.
c) It is undoubtedly the exclusive prerogative of investigating agency to place its reliance upon any particular document or not. Statement, if any, made by accused should also always form part of the record. First medical examination report of any such accused should also be always made part of record so that it can also be appreciated at the time of final arguments as well whether the accused was promptly taken for medical checkup after his arrest or not. If photographer is summoned at spot, such fact should have been, at least, reflected somewhere either in the case diary or in the charge-sheet irrespective of the fact whether the photographs were taken eventually or not.
d) Case diary (CD) should be maintained properly and each day's progress should always be reflected in case diary.
e) Specimen voice sample of accused should be taken after medical examination. Essential catch words, as appearing in questioned conversation, should be given to any such accused for specimen purpose.
f) While collecting CDR from concerned service provider, it should always be ensured that such CDR is duly supported with certificate u/s 65 (B) (4) (c) of Indian Evidence Act. Moreover, in such like matters, even the mobile hand-set should be seized promptly after taking requisite safeguards. Such mobile can then be examined for seeking corroboration.
g) Time has changed a lot and various sophisticated and tiny gadgets are hitting the market. In appropriate cases, CBI can explore the possibility of installing miniature camera as used by Tehalka.com way back in 2000. Video footage, so obtained, can give better & valuable inputs about the mannerism, demeanor & conduct of any such accused while demanding and accepting bribe for coming to a right conclusion.
h) Discreet enquiry should not be for namesake and even if CBI is to devote some extra time to find out and assess the reputation of any such individual, it should not hesitate. After all, for purposeful discreet enquiry, the reputation has to be gathered from various quarters. Moreover, it is question of someone's life and liberty.
15.2 Be that as it may, in view of in-depth discussion, compelling, convincing and inspiring evidence of complainant and other prosecution witnesses and also taking note of various related facts and circumstances including the recorded conversation, it is held that case of the prosecution stands proved to the hilt. Accused was in a position to exploit Rajiv Sharma. Suspect Rajiv Sharma, mindful of the fact that he had not done anything wrong, did not succumb to his wicked plan and rather approached CBI. Accused had, naturally, thought otherwise and was unmindful of such development. He felt that such preliminary enquiry was going to be closed eventually and attempted to cash-in on him, literally as well. He indulged in corrupt practice and, by abusing and misusing his office, obtained pecuniary advantage. He also did not mind going to the house of suspect. There, he discussed the matter, took alcohol and finally unhesitatingly accepted gratification.
15.3 Resultantly, accused is hereby held guilty and convicted u/s 7 & Section 13(2) read with section 13 (1) (d) of Prevention of Corruption Act 1988.
(MANOJ JAIN) Special Judge (PC Act) (CBI) South District, Saket Courts, New Delhi Announced in Open Court Friday, November 8, 2013 CC No. 51/2011 RC-4(A)/2006/ACU-IV U/s 7, 13 (2) r/w 13 (1) (d) of PC Act (Case UID No. 02406R0746622006) CBI Vs. D.K. Srivastava Dated: November 11, 2013 Present: Sh. A.K. Dutt, learned Special Public Prosecutor for CBI Sh. Harsh Kr. Sharma, learned defence counsel with convict 1 I have heard arguments on sentence.
2 Sh. Dutt has prayed for severe-most sentence. According to him, convict was legal advisor for the premier investigating agency of country which is busy endeavouring best efforts to chuck out corruption. Instead of helping CBI in nabbing and prosecuting such corrupt officials, convict rather stooped so low that he did not blink even once while accepting bribe at the residence of suspect whose case was being monitored by his branch only. Thus, he has tarnished the image of CBI and deserves stern action for impish audacity shown by him.
3 Sh. Sharma has, on the other hand, prayed for maximum compassion. It has been reiterated that convict is rather a victim of circumstances and has been falsely and systematically implicated by hatching a calculated conspiracy by some disgruntled CBI officials. It has been argued that there is no one else to look after his ailing wife as his both the daughters are married and residing in their respective matrimonial homes. It has also been argued that convict would also bear the outcome of the conviction as he would be losing his service which would also affect the life of his wife and his such close family members as they would also live with such stigma.
4 There cannot be any doubt that CBI is burdened with herculean task of apprehending the corrupt officials and to bring them to the books and it was least expected from a senior-ranked official of Prosecution Department of CBI to have indulged into what he was supposed to shun. He was required to keep himself clean and disciplined so that others could emulate him. He was shouldered with the responsibility to expose corrupt persons but he, instead, tried to become one himself.
5 Facts of the case portray a very dismal and depressing image about how ''back-door-exoneration-against-consideration'' is rampant even in CBI. Courts can deliver justice only when investigation is completely unprejudiced and impartial. If the truth is throttled and garroted during the investigation stage itself, then eradication of corruption from our country would remain a delusion.
6 Lack of infrastructure, poor in-house vigilance mechanism, complex laws, stringent burden of proof, poorest judge-population ratio, delayed trials often encourage and tempt public servants to indulge in corruption. Laws are too complex to serve speedy justice. Our Laws are, if truth be told, defence-friendly and not justice-oriented. We are still following English jurist William Blackstone's phrase, "Better that ten guilty persons escape, than that one innocent suffer." I really wonder better for whom? Our such over-cautious approach is apparently causing mayhem more so when criminal case is required to be proved beyond 'shadow' of doubt. Foolproof criminal case is only a fantasy. Any person having doubtful integrity should not be permitted to hold public office any further. Department should not be dependent upon outcome of criminal adjudication where, as things stand today and as already noted above, case has to be proved beyond any doubt. A departmental action, whereas, can be taken even on the preponderance of probabilities. It's time to lay a different and softer standard of proof for trial of such corruption-related matters and to have a simple and crisp law which would automatically create fear and alarm in the minds of such people trying to degrade the moral fiber of our Nation.
7 Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. But, in its over-zealousness, court is not supposed to get swayed away. It has to be wary of the various other circumstances including the age and previous antecedents of convict and then to assess whether to award retributive or deterrent sentence. The principle of proportion between the crime and the punishment is known as 'just deserts. For deciding just and appropriate sentence, the aggravating and mitigating factors and circumstances in which the offence has been committed are to be delicately balanced in a dispassionate manner.
8 Such act of balancing is indeed an intricate job as there exists no strait-jacket formula furnishing foolproof criterion to weigh up just and appropriate punishment as every criminal case has its own peculiarity. Convict has already spent approximately three months behind the bars after he was arrested. Keeping in mind the overall facts and circumstances of the case, I sentence convict as under:-
(i) For offence u/s 7 PC Act, convict is sentenced to undergo RI for a period of three years and fined Rs. one lac in default thereof, convict would further undergo SI for six months.
(ii) For offence u/s 13 (1) (d) read with section 13(2) PC Act, convict is sentenced to undergo RI for a period of three years and fined Rs. one lac in default thereof, convict would further undergo SI for six months.
9 Both the sentences would, however, run concurrently. Needless to say that convict would be entitled to benefit of Section 428 Cr.P.C.
10 Convict be sent to jail under appropriate warrants to serve the sentence.
11 A copy of judgment and order on sentence be supplied to convict free of cost.
12 File be consigned to Record Room.
Announced in the open Court On this 11th day of November, 2013 (MANOJ JAIN) Special Judge (PC Act) (CBI) South Distt: Saket Courts: New Delhi CC No. 51/2011 CBI Vs. D.K. Srivastava Page 83 of 78