Delhi District Court
Cbi vs . Ravinder Kumar @ Ravi Jatav Etc. Page ... on 22 February, 2014
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IN THE COURT OF MS. POONAM A. BAMBA:
SPECIAL JUDGE (PC ACT) : CBI - 03 :
NEW DELHI DISTRICT : PATIALA HOUSE COURT :
NEW DELHI
In re :
CC No. 09/12
Case ID No. 02403R0041922012
RC No. 18A/2011/ACB/CBI/NEW DELHI
u/Sec. 120B IPC r/w Sec. 8 of PC Act
STATE (CBI)
VS
1. Ravinder Kumar @ Ravi Jatav
S/o Sh. Totta Ram
R/o 9475, First Floor, Gali No. 11,
Multani Dhanda, Paharganj, New Delhi
2. Sanjay Kumar Sharma
S/o Sh. Ram Avtar Sharma
R/o 185, Akash Darshan Apartment,
Mayur Vihar Phase-I, Delhi-91.
Permanent Address:
Village Kachrot, P.O. Bhadkaun,
Distt. Bulandsher, U.P. 245403
Charge-sheet filed on - 02.07.2012
Charges framed on - 19.11.2012
Arguments concluded on - 10.02.2014
Judgment pronounced on - 22.02.2014
APPEARANCES:-
For prosecution: Sh. S. C. Sharma, Ld. Sr. PP for the State (CBI).
For Defence: Sh. R. C. Chopra, Advocate for A-1, Ravinder Kumar
@ Ravi Jatav.
Sh. P.S. Singhal, Advocate for A-2, Sanjay Kumar
Sharma.
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CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 1 of 123
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JUDGMENT
22.02.2014 1.0 The criminal justice system was set into motion on the complaint of Ashok Kumar Puri. As per charge-sheet, complainant Ashok Kumar's shop at 8763/3, Multani Dhanda, Pahar Ganj, New Delhi was sealed by MCD on 29.12.2010 ("the said property" in short). Despite efforts, the same could not be de-sealed. A-1 Ravinder Kumar Jatav @ Ravi Jatav ('A-1' in short) told the complainant that he could get the complainant's shop de-sealed through A-2 Sanjay Kumar Sharma, Tehsildar, SDM Office, Pahar Ganj, New Delhi('A-2'in short). He also told that he has got many properties de- sealed through A-2. A-1 demanded a sum of Rs. Three Lacs for this work, but on negotiation agreed to take Rs. 2.25 Lacs; out of which he asked for Rs. One Lac as advance; A-1 asked the complainant to come to Tehsildar Sanjay Kumar Sharma's (A-2) room in SDM, Paharganj Office between 05:00 - 06:00 pm with bribe money. As the complainant did not want to pay the bribe money, he lodged the complaint dated 19.09.2011 with SP, CBI, ACB, Delhi.
1.1 As per charge-sheet, the said complaint was CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 2 of 123 :: 3 ::
marked for verification to Inspector Nikhil Malhotra. Inspector Nikhil Malhotra secured the presence of independent witness Sh. Vipin Kumar Yadav, Officer, Corporation Bank, CGO Complex, Lodhi Road, New Delhi. As the complainant disclosed that the bribe amount would be taken by A-2 Sanjay Kumar Sharma through the middle man A-1 Ravi Jatav, Inspector Nikhil Malhotra decided to get the verification of the complaint done through A-1 Ravi Jatav. The complainant was directed to make a call from his mobile no. 9210025495, on the mobile phone no. 9212419597 of A-1 Ravi Jatav, but the same got disconnected. After sometime, another call was made by the complainant, which was picked up by A-1 Ravi Jatav; said conversation between the complainant and A-1 Ravi Jatav was heard by all present, as the complainant's mobile was put on "speaker" mode; same was simultaneously recorded in the presence of independent witness, in the blank Digital Voice Recorder (DVR), after recording the introductory voice of independent witness; A-1 Ravi Jatav asked the complainant to reach SDM Office at Jhandewalan between 05:00 - 06:00 p.m.; he further told that it would take 25 to 30 days for him to get the complainant's work done. CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 3 of 123 :: 4 ::
1.2 In order to confirm the place, where the complainant should reach with bribe amount and whether A-2 Sanjay Kumar Sharma, would get the work done, after sometime, another call was made on the mobile phone of A-1.
The said conversation was heard by all present and was also simultaneously recorded; in the said conversation, A-1 Ravi Jatav assured the complainant if A-2 Sanjay Kumar Sharma would not get his work done, he (A-1) would get it done; A-1 further asked the complainant to reach Jhandewalan Office between 05:00 to 06:00 p.m. 1.3 Accordingly, Inspector Nikhil Malhotra alongwith the independent witness and the complainant reached the office of A-2 situated at Flatted Factory Complex, Jhandewalan; the complainant carried with him DVR in "switched on" mode and independent witness Vipin Kumar Yadav accompanied the complainant to the office of A-2 Sanjay Kumar Sharma; Inspector Nikhil Malhotra remained in the official vehicle; after some time, the complainant returned and informed that as A-2 Sanjay Kumar Sharma, Tehsildar was busy he could not enter and that A-1 Ravi Jatav also stopped the independent witness from entering. After some time, the CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 4 of 123 :: 5 ::
complainant again went to Tehsildar's office. The complainant returned some time later and told that the Tehsildar did not agree to accept the money directly. The independent witness Vipin Kumar Yadav could not witness the happenings as he was not allowed to go inside. The team then returned back to the CBI office. DVR was played and heard and demand of bribe amount on the part of A-1 Ravi Jatav was revealed; from the recorded conversation, the knowledge regarding alleged demand being on the part of A-2 Sanjay Kumar Sharma was implicit.
1.4 The conversation between the complainant and A-1 Ravi Jatav, which took place in CBI office over phone was transferred to CD Mark Q1. The recorded conversation between the complainant, A-1 Ravi Jatav and A-2 Sanjay Kumar Sharma, Tehsildar, which took place in the office of A-2, was transferred to the other CD Mark Q2. The said CDs were sealed and the seal used in the same was handed over to the independent witness Vipin Kumar Yadav, for safe keeping. 1.5 As the complainant requested for some time for arranging bribe amount, he was asked to visit CBI office with money on 22.09.2011.
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1.6 On 22.09.2011, the complainant reached CBI office and informed that he was able to arrange only Rs.
25,000/-. To ascertain the time and place of transaction, the complainant made a phone call from his mobile no. 9210025495 on the mobile phone number 9212419597 of A-1 Ravi Jatav. During this conversation, A-1 Ravi Jatav told the complainant to be ready with the cash at his shop and that he (A-1 Ravi Jatav) would make a call before reaching. As the demand on the part of A-1 Ravi Jatav was verified, Inspector Nikhil Malhotra got registered an FIR No. RC/DAI/2011/A-001, u/Sec. 8 of The Prevention of Corruption Act, 1988 ("P.C. Act"
in short) against A-1 Ravi Jatav. Inspector Kailash Sahu was entrusted with the investigation in the said FIR and for laying of trap.
1.7 For laying the trap, a CBI team consisting of Inspector Kailash Sahu (TLO), PI Vikash Kumar Pathak, PI, Manish Kumar Upadhyay, PI, Nikhil Malhotra, SI, Sandeep Gautam, and other subordinate staff, the complainant Ashok Kumar Puri and independent witnesses namely, Vipin Kumar Yadav, Officer, Corporation Bank and B. K. Kukreti, Head Clerk,Delhi Jal Borad, DOV Varunalaya Phase-II, New Delhi, CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 6 of 123 :: 7 ::
was constituted.
1.8 After completing the formalities of formal introduction of independent witnesses with the complainant, explaining the purpose of assembly/ laying of trap, reading out and explaining of the complaint, and the independent witnesses satisfying themselves about the complaint, Verification Memo dated 22.09.2011 was shown to all present;
thereafter, the numbers and denomination of Government Currency Note (GC Notes) of Rs. Twenty Five Thousand, produced by the complainant, in the denomination of Rs. Five Hundred, were noted down; the purpose/ significance of use of phenolphthalein powder and the demonstration of the chemical reaction of phenolphthalein powder with solution of sodium carbonate and water was given by SI Sandeep Gautam. Thereafter, personal search of the complainant was conducted and he was not allowed to keep anything incriminating on his person except mobile phone; the tainted bribe amount of Rs. Twenty Five Thousand was then put in the right side pants' pocket of the complainant by the independent witness Sh. B.K. Kukreti. Instructions were given to the complainant and the independent witness; the DVR was CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 7 of 123 :: 8 ::
procured and introductory voice of the independent witnesses was recorded in the blank DVR and thereafter, it was handed over to the complainant, instructing him about user of the same. Independent witness Sh. Vipin Kumar Yadav was asked to act as a shadow witness and to remain close to the complainant and to overhear the conversation and see the transaction of bribe amount. He was also directed about signal to be given on acceptance of bribe amount by the accused. Other formalities were completed and Handing Over Memo was prepared; the entire proceedings concluded at about 04:45 pm. 1.9 The team reached the spot, that is, M/s Poonam Shoes, 8831, Multani Dhanda, Pahar Ganj, New Delhi on 22.09.2011 at about 05:15 pm. The complainant was asked to remain in his shop; independent witness Sh. Vipin Kumar Yadav was directed to remain in the close proximity of the complainant, in order to watch the transaction and hear the conversation between the complainant and the accused; and remaining team members of CBI took suitable positions.
Thereafter, at about 05:20 pm, the complainant was directed to make a phone call from his mobile on "speaker" mode to CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 8 of 123 :: 9 ::
the mobile of A-1; in the said conversation, A-1 informed the complainant that he shall visit complainant's shop by 06:30 pm for collection of the money; this conversation was recorded in the DVR; thereafter, the independent witness Sh. Vipin Kumar Yadav and Insp. Nikhil Malhotra remained in complainant's shop, posing as customers. 1.10 At about 06:00 pm, A-1 Ravi Jatav came to the complainant's shop; as the DVR was not "on", the complainant went outside the shop, pretending to visit the toilet; the DVR was then switched on by Insp. Nikhil Malhotra and was put back in complainant's shirt's pocket and then they came back to the shop of the complainant; the complainant then discussed with A-1 about the de-sealing of his shop; A-1 assured the complainant that de-sealing would commence on Monday onwards; on specific demand of A-1, the complainant Ashok Kumar Puri took out tainted GC notes from his right side pant's pocket and handed the same over to A-1. 1.11 On asking of the complainant, A-1 started counting the GC notes with both his hands; this act of acceptance of money and counting of the same by A-1 was CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 9 of 123 :: 10 ::
seen by the shadow witness as well as Insp. Nikhil Malhotra, who were present in the shop; after counting the GC notes, A-1 kept the tainted money in his right side back pocket of pants; on which, the complainant gave pre-fixed signal to Sh. Kailash Sahu, Trap Laying Officer (TLO), who in turn alerted all the team members. The team members rushed to the shop of the complainant; on entering the shop, Insp. Kailash Sahu, TLO after disclosing his and his team members' identity challenged A-1 for accepting the bribe amount of Rs. Twenty Five Thousand from the complainant; A-1 became nervous and did not comment. The DVR was taken back and was switched off; A-1 was caught hold of by his wrists by Insp. Nikhil Malhotra and Insp. Sandeep Gautam. 1.12 Charge-sheet further mentions that washes of right as well left hand of A-1 were taken in freshly prepared solution of sodium carbonate, which turned "pink"; the said solutions were then preserved and sealed in the presence of independent witnesses and TLO and were marked 'RHW' and 'LHW', respectively. Thereafter, independent witness Sh. B.K. Kukreti recovered the tainted amount of Rs. 25,000/- from the pant pocket of A-1. Both the independent witnesses tallied CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 10 of 123 :: 11 ::
the numbers and denomination of recovered GC notes with the numbers and denomination of GC notes recorded in Handing Over Memo; the same tallied in toto. 1.13 The charge-sheet also mentions that A-1 was asked to change the trouser and was provided with another trouser in order to take wash of pants' back side right pocket.
The said wash also turned pink and it was also preserved in glass bottle, which was marked "BSPPW". 1.14 On interrogation, A-1 informed that it was A-2 who was to get the work of complainant done; and that he had received the amount from the complainant on behalf of A-2. Thereafter, at about 06:40 pm, A-1 was asked to make a call from his mobile phone (No. 9212419597) on "speaker mode"
to A-2 on his mobile (No. 9999970724). During the said conversation, A-1 told A-2 that he had collected Rs. One Lac and also informed him that he would handover the same to A-2, the next morning. On the directions of CBI, A-1 made a second phone call to A-2 at about 06:50 pm to know about his location; A-1 asked A-2 as to where he was, at that time; on which, A-2 informed that he was in his office; A-1 then asked CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 11 of 123 :: 12 ::
A-2 to wait in his office, as he was reaching shortly. This conversation was also recorded in the DVR. 1.15 Thereafter, CBI team alongwith the independent witnesses reached the office of A-2 at Pahar Ganj at about 07:15 pm; A-2 was available in his office chamber; Insp.
Kailash Sahu, TLO introduced himself to A-2 and enquired from him about his role in de-sealing of complainant's shop; A-2 was unable to provide any reasonable explanation regarding conversation held amongst the complainant, A-1 and himself. On search of the office premises of A-2 in the presence of independent witness Sh. Vipin Kumar Yadav, one file containing letters of ACP/ Hqrs., SHO/ PS Nabi Karim and SHO/ PS Pahar Ganj regarding unauthorized construction/ encroachment was recovered and was taken into possession. The trap team alongwith accused and independent witnesses then returned to CBI office at CBI Headquarter, Lodhi Road, New Delhi at about 08:15 pm. DVR was played and heard in the presence of witnesses, which confirmed demand and acceptance of bribe on the part of A-1. It also confirmed connivance of A-2 and his knowledge of acceptance of bribe amount by A-1.
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1.16 Thereafter, A-2 was arrested; recorded conversation was transferred to blank CD marked Q-3;
specimen voice of A-1 as well as A-2 was taken in DVR and then transferred to CDs in the presence of independent witnesses and were marked as S-1 and S-2, respectively. The washes marked "RHW", "LHW" and "BSPPW", questioned as well as specimen voice were sent to CFSL. CFSL has given positive report with respect to washes taken from A-1. CFSL has also given positive report with respect to voice of accused persons.
1.17 During investigation, call details of the moible numbers 9210025495 (of Ashok Kumar, complainant), 9212419597 (of accused no. 1, Ravi Jatav) and 9999970724 (of accused no. 2, Sanjay Kumar Sharma) were collected, which confirmed the making of calls, as mentioned in the memos.
2.0 Thereafter,the accused persons were charge- sheeted under Section 120-B IPC read with 8 of PC Act, on 29.06.2012; the charge-sheet was filed in the Court on 02.07.2012.
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3.0 Both the accused persons were charged under Section 120B IPC read with Section 8 PC Act. They were also charged under Section 8 PC Act ,vide order dated 16.11.2012. Needless to mention that both the accused persons pleaded not guilty and claimed trial.
4.0 In support of its case, the CBI examined 11 witnesses. PW-2 Sh. Ashok Kumar Puri is the complainant. PW-4 Sh. Vipin Kumar Yadav, Assistant Manager, Corporation Bank, is the shadow witness. PW-6 Sh. B. K. Kukreti, Head Clerk, Delhi Jal Board, is the other independent witness. PW-3 Sh. M.N. Vijayan, Nodal Officer from TATA Tele Services Ltd. and PW-5 Sh. Anuj Bhatia, Nodal Officer, Vodafone Mobile Services Ltd., proved ownership details of mobile phones/ CDRs of the complainant and accused persons. PW-1 Sh. Manoj Kumar, EE, Building City Zone and PW-8 Sh. S. L. Meena, JE (Civil), MCD Building Department, deposed about/ produced the record of sealing/ desealing of property no. 8763/3, Multani Dhanda. PW-9 Sh. Nikhil Malhotra, Inspector, CBI, ACB is Verification Officer. PW10 Sh. Kailash Sahu, Inspector, CBI, ACB, is Trap Laying Officer (TLO). PW-11 Sh. Pankaj Vats, Inspector, CBI, ACB is the Investigating Officer CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 14 of 123 :: 15 ::
(IO). PW-7 Sh. Amitosh Kumar is Sr. Scientific Officer, Grade-II, Physics, CFSL, who examined questioned and specimen voices of accused persons.
5.0 Statements of the accused persons u/Sec. 313 Cr.PC were recorded on 27.08.2013 and 16.09.2013. The accused persons denied incriminating facts/ evidence put to them and stated that they are innocent. A-1 further stated that he has been falsely implicated because the complainant felt that he had reported about illegal construction on the said property.
5.1 A-2 stated that he has been falsely implicated, as he was one of the active members of the raiding party, which raided the shop M/s Poonam Shoes of the complainant and his brother Sh. Anil Puri on 15.12.2010; and from where one child/ bonded labour was rescued and on the recommendation of his/ SDM office, a case was registered and Sh. Anil Puri, brother of the complainant was arrested and charge-sheeted; the said matter in SDM office was processed by him and the complainant and his family members had approached him at that time, to seek favour; but, he did not oblige them; the complainant nursed a grudge against him and had threatened CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 15 of 123 :: 16 ::
to teach a lesson to him (A-2).
5.1.1 Both the accused persons opted to lead defence evidence. But, A-1, subsequently, did not lead any evidence in defence.
5.1.2 A-2 produced three witnesses in his defence, namely, DW-1, SI Rajpal Singh, PS Nabi Karim, Delhi; DW-2, Sh. Sandeep Kadyan, Naib Tehsildar, SDM Office Karol Bagh, New Delhi and DW-3, Sh. Radhey Shyam, retired Joint Commissioner, Labour Department, GNCT of Delhi. 6.0 I have heard Sh. S. C. Sharma, Ld. Sr. PP for the State/ CBI, Sh. R. C. Chopra, Advocate for A-1 Ravinder Kumar @ Ravi Jatav and Sh. P. S. Singhal, Advocate for A-2 Sanjay Kumar Sharma at length and have perused the record carefully.
6.1 Learned counsel for the accused persons argued that the investigation is tainted and the prosecution story is concocted. The prosecution has fabricated the evidence of recorded conversation. Even voice expert PW-7's opinion/ evidence is a bundle of lies and is not reliable. Other CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 16 of 123 :: 17 ::
evidence also is not reliable, because the complainant has made substantial improvements in his testimony; the versions of the witnesses are contradictory to each other and therefore, they are not reliable witnesses. The detailed arguments in this regard are dealt with during the course of discussion in paras (infra). Learned counsel for A-2 further argued that A-2 had nothing to do with de-sealing of property; the name of the official/ public servant from whom the work of de-sealing of the said property was to be got done, is not disclosed; thus, Section 8 PC Act is not attracted in the instant case.
6.2 On the other hand, learned Sr. PP submitted that the public servant, through whom the work was to be got done, may not be named for the purpose of Section 8 PC Act.
A-1 for himself and for A-2, received/ the bribe amount for getting de-sealed the said property of the complainant through a public servant. Thus, Section 8 is very much applicable in the instant case.. He further argued that promise to get the said property desealed through A-2, demand of bribe for the said purpose and acceptance of the bribe amount by A-1 have been duly proved. The recorded CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 17 of 123 :: 18 ::
conversation also proves that A-2 was very much aware about demand and acceptance of bribe by A-1, on his behalf and even waited in his office to receive the amount collected by A-1. A-2 was found waiting in his office for A-1, at late hours. Learned prosecutor further argued that the conspiracy between A-1 and A-2 has been duly proved by the evidence on record.
7.0 The fact that the said property (no. 8763/3, Multani Dhanda, Pahar Ganj, New Delhi) was booked on 29.09.2010 for unauthorized construction; and the ground floor of the said property was sealed on 29.12.2010 vide order of Dy. Commissioner, Sadar Pahar Ganj Zone, Ex.PW8/B, has come on record vide testimonies of PW1, Manoj Kumar, EE, Building City Zone, PW8, Sh. S. L. Meena, JE (Civil), MCD Building Department, Sadar Pahar Ganj Zone and PW2, the complainant. Even otherwise, this fact has not been disputed, by both the accused persons, as they did not cross-examine PW-8, who placed on record the order of sealing; and A-1 himself has stated in his statement u/Sec.313 Cr.PC that the complainant felt that he (A-1) reported about illegal construction on the said property.
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7.1 Further, the fact that the complainant, Sh. Ashok Kumar Puri (PW2) had been making efforts for de-sealing of the said property, but, did not succeed, has also come on record vide the suggestion made to PW2 in his cross-
examination by A-1. Ld. counsel for A-1 suggested to PW2, the complainant, that he had given representation in that regard to Sh. Chandolia (Chairman, Standing Committee, MCD). PW2 was even confronted with his said representation (Ex.PW2/DA) at page 105-C of the file of sealing and de- sealing of the aforesaid property, which is Ex.PW1/B. This file (Ex.PW1/B) also contains a letter at page 106-C, of Sh. Yogender Chandolia dated 12.12.2011 addressed to "Deputy Commissioner", Sadar Pahar Ganj Zone, to look into the matter of de-sealing of the said property. 7.2 It was argued by Ld. counsel for A-2 that the complainant very well knew that the matter for de-sealing of the said property was being processed favourably; it is unnatural that instead of following up the matter with the concerned department, he would have approached A-2, who had nothing to do with de-sealing of property; this clearly shows that the complaint filed by Ashok Puri was motivated CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 19 of 123 :: 20 ::
and was filed in order to take revenge with A-2. 7.2.1 It is not in dispute that the said property remained sealed as on 19.09.2011; Chairman, Standing Committee, MCD took up the said matter with Dy. Commissioner vide his letter dated 12.12.2011, that is, after filing of complaint on 19.09.2011. From the same it is clear that PW-2 was still making efforts for de-sealing.
8.0 It is the case of CBI that A-1 Ravinder Kumar @ Ravi Jatav offered to the complainant to get de-sealed the said property by MCD through A-2 Sanjay Kumar Sharma, Tehsildar, SDM Office Pahar Ganj and demanded a sum of Rs.3 lacs for that work; the said amount on negotiation was reduced to Rs.2.25 lacs; out of which, Rs. One Lac was sought as advance; A-1 was caught red-handed having received a sum of Rs.25,000/-; and that the recorded conversation made by the complainant from his mobile phone no. 9210025495 to mobile phone number 9212419597 of A-1 Ravi Jatav and the conversation between A-1 Ravi Jatav from his mobile no. 9212419597 to A-2 at his mobile no. 9999970724; and also the conversation otherwise, between complainant & A-1 and CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 20 of 123 :: 21 ::
amongst complainant, A-1 and A-2, which was recorded on DVR and other evidence, revealed that the said property was to be got de-sealed with the help of A-2 and part bribe amount of Rs.25,000/- was received by A-1 for himself and A-2 for the said work.
9.0 Let me mention at the outset that the fact that mobile number 9210025495 belonged to complainant, mobile no. 9212419597 belonged to A-1 and mobile no. 9999970724 belonged to A-2, is established vide phone ownership record proved by PW-3 and PW-5 and accused's own admission.
9.1 PW-3 M. N. Vijayan, Nodal Officer, TATA Teleservices proved the ownership documents [certified copy of Customer Application Form (CAF) and supporting documents] of mobile numbers 9210025495 & 9212419597, Ex.PW3/B and Ex.PW3/D, respectively and Call Detail Records (CDR) of the said mobile numbers; and that the same were forwarded by him to CBI vide his letter dated 06.04.2012, Ex.PW3/A. PW3 testified that as per Ex.PW3/B, mobile no. 9210025495, is in the name of Ashok Kumar, resident of CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 21 of 123 :: 22 ::
8253, Multani Dhanda, Pahar Ganj, New Delhi, and as per Ex.PW3/D, mobile no. 9212419597, is in the name of Ravinder Kumar, resident of 9475, First Floor, Gali No. 11, Multani Dhanda, Pahar Ganj, New Delhi. PW3 proved the CDR of mobile no. 9210025495 (of the complainant), Ex.PW3/C and that of mobile no. 9212419597 (of A-1), Ex.PW3/E; he also proved the certificate under Section 65B (4) (c), Indian Evidence Act, Ex.PW3/F, with respect to the aforesaid CDRs. Ld. counsel for A-1 objected to certified copy of CAF of A-1 being exhibited. The said objection is of no consequence, as the mobile numbers of the complainant (9210025495) and A-1 (9212419597) have not been disputed because, nothing to the contrary was suggested to PW-3, in his cross-examination; and also because, same are not disputed by A-1 in his statement u/Sec. 313 Cr.PC, as is made out from his reply to Questions No. 8, 16, 33 & 42.
9.2 PW-5, Sh. Anuj Bhatia, Nodal Officer, Vodafone Mobile service, proved Customer Application Form of mobile no. 9999970724, which is in the name of Sanjay Kumar Sharma, son of Sh. Ram Avtar Sharma and the same is Ex.PW5/A. PW-5 was not cross-examined by A-2 in this CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 22 of 123 :: 23 ::
regard. Thus, the fact that mobile number 9999970724 belonged to A-2, Sanjay Kumar Sharma, is not in dispute. PW-5 also proved the CDR of the said mobile number w.e.f. 18.09.2011 to 23.09.2011, which is Ex.PW5/B and also the certificate u/Sec. 65B (4) (c) of Indian Evidence Act, Ex.PW5/C. Only a general suggestion in cross-examination was put to PW-5 that the said CDR is not correct and Ex.PW5/B was objected to. But, no specific reason for challenging the correctness of the same was assigned i.e. no specific suggestion in this regard, was put to the witness.
10.0 Now coming to the allegation of demand of bribe and its acceptance. PW-2 has deposed that A-1 was his customer for about four years and was residing nearby in Gali No. 10. He has stood by the same in his cross-examination and stated that he knew A-1 for about four years. No suggestion to the contrary was put to him. Even PW4, the independent witness Vipin Kumar Yadav has stated that from the conversation which took place between PW2 and A-1 (over phone) in his presence at CBI office, he could gather that they knew each other.
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10.1 PW-2 has further deposed that 15 days prior to lodging of the complaint with CBI on 19.09.2011, when A-1 visited his shop, he told him that he could help in getting the said property de-sealed through links of A-2 Sanjay Kumar Sharma; and asked for a sum of Rs.3 lacs for the same; he also told that it would take 25 to 30 days in getting the work done; he even told that through links of A-1 Sanjay Kumar Sharma, he got 2 - 3 properties de-sealed in the past also.
PW-2 has further deposed that on negotiation, A-1 reduced the demand to Rs.2.25 lacs but, asked for Rs.One Lac in advance; on which, he requested A-1 for arranging a meeting with A-2 and on being satisfied after talking to A-2, he (PW-2) would pay the money; A-1 told him that A-2 would meet him only through A-1 and not directly. PW-2 has also deposed as he did not wish to pay bribe, he then lodged a complaint (Ex.PW2/A) in his own hand-writing with CBI on 19.09.2011. Demand of bribe 10.1.1 The fact that the demand of money was made by A-1 from the complainant (PW-2) and that the complainant bargained with A-1 to reduce the amount of bribe, is borne CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 24 of 123 :: 25 ::
out from A-1's own suggestion to the complainant in cross- examination. The relevant portion of PW-2/ complainant's testimony in this regard is reproduced here - "..... accused had demanded Rs.3,00,000/- and then came down to demand of Rs.2,25,000/-. It is correct that I bargained with the accused to pay him Rs.1,75,000/-."
10.1.2 PW-2 has also stood by his version that A-1 was to get the said property de-sealed through connection of A-2. In his cross-examination by A-2, PW-2 stated that - "I had told the CBI that accused Ravi Jatav told me that he was having very good connection with Sanjay Sharma, Tehsildar, SDM Office, Jhandewalan and through his links he had been able to get 2 - 3 properties de-sealed in past." PW-2 was confronted with his statement u/Sec. 161, PW2/ DB by Ld. defence counsel for A-2 to suggest that it is not so recorded there. But, perusal of PW-2's statement under Section 161 Cr.PC reveals that the same is very much recorded therein.
Acceptance of bribe amount 10.2 The fact that the complainant arranged Rs. 25,000/- (as against the demanded advance amount of CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 25 of 123 :: 26 ::
Rs.One lac); and that the said amount of Rs.25,000/- was paid by the complainant (PW-2) and accepted/ received by A-1 at the complainant's shop on 22.09.2011, has also come on record, vide testimonies of complainant/ PW-2, independent witnesses PW-4 & PW-6 and Verification Officer PW-9 Insp. Nikhil Malhotra & TLO, Kailash Sahu PW-10 and, recorded conversation, etc.
11.0 Let me now mention as to how the events unfolded, after filing of complaint by the complainant with CBI. The said complaint Ex.PW2/A was marked for verification to PW-9 Insp. Nikhil Malhotra. The fact that for verification of the complaint, PW-9, Insp. Nikhil Malhotra alongwith the complainant and independent witness PW-4, Vipin Kumar Yadav, visited A-2's office in the evening of 19.09.2011, after fixing the time with A-1; and that A-1 met them at A-2's office, has come in the testimony of PW-2, PW-4 and PW-9. 11.1 PW-2 has deposed that his complaint Ex.PW2/A was assigned to Insp. Nikhil Malhotra (PW-9) for verification; PW-9, Insp. Nikhil Malhotra procured the service of public witnesses, namely, Vipin Kumar (PW-4) and one Sh. Kukreti CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 26 of 123 :: 27 ::
(PW-6) (discrepancy in PW-2's version with respect to joining of PW-6 on 19.09.2011 would be discussed a little later in paras - 14.2, 14.2.1 and 14.2.2 ); he (complainant) was instructed to make a call from his mobile no. 9210025495 to the A-1's mobile number; accordingly, he made a call; his mobile phone was put on speaker mode and the conversation, which took place between him and A-1, Ravi Jatav was recorded on DVR and was also heard by all present. PW2 has stated that in that telephonic conversation, A-1 Ravi Jatav asked him to reach A-2's office at Jhandewalan between 05:00 p.m. to 06:00 p.m. that day (19.9.2011) alongwith a sum of Rs.One Lac. PW-2 was not cross-examined with respect to the aforesaid phone calls made by him to A-1. 11.2 PW-4 has also deposed on the same lines. He has stated that at instance of his Branch Manager, he went to CBI office on 19.09.2011, to act as a witness; he was informed about the complaint and was introduced with PW-2. PW2 made a call to A-1, Ravi Jatav which was heard by him and others. He has also stated that it was then decided to meet A-1, Ravi Jatav in the evening after 04:00 p.m. He, however, stated that to his recollection no specific amount CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 27 of 123 :: 28 ::
was discussed in the said calls, as he could not hear the same since the voice was not clear and there was some disturbance. The fact that there is disturbance in these calls, when speaker from other end speaks, is borne out from record i.e. CD Q-1, Ex.PW4/A when played in court, during arguments. No suggestion was put to him that no such calls were made or recorded.
11.3 PW-9, Insp. Nikhil Malhotra, who was assigned the task of verification of complaint, corroborated the version of PW2 and PW4. He has stated that complainant was requested to make a call from his mobile to the mobile phone of A-1;
during said telephonic conversation A-1 asked the complainant to come to the office of A-2, at Jhandewalan at about 5 - 6 p.m.; the said conversation was recorded; to ascertain the role of A-2, it was decided to meet him in his office.
11.4 The fact that the complainant made calls to A-1 on 19.09.2011, (around the same time) is also corroborated by their Calls Detail Records (CDRs), Ex.PW3/C and Ex.PW3/E. The authenticity of CDRs is established vide Ex.PW3/F, Certificate CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 28 of 123 :: 29 ::
u/Sec. 65 B (4) (c) Indian Evidence Act. CDR of PW2's mobile phone, Ex.PW3/C - shows that the following calls were made from his mobile number to A-1 Ravi Jatav's mobile number on 19.09.2011 :
Complainant A-1, Ravi Jatav Time Duration
1. 9210025495 9212419597 12:04:23 136 Sec
2. 9210025495 9212419597 12:13:42 20 Sec
3. 9210025495 9212419597 12:15:57 62 Sec
4. 9210025495 9212419597 12:18:18 48 Sec 11.5 It was argued by Ld. counsel for A-1 that charge-
sheet talks about three calls, whereas, CDR shows four calls. Further, as per charge-sheet, the first call was disconnected, but disconnected call is not there in CD Q-1(as per CFSL report Ex-PW-7/B). It may be mentioned that PW2 in his cross- examination by A-2, has stated that he might have called A-1 twice or thrice on 19.09.2011 from CBI's office, in the presence of PW-4 Vipin Kumar Yadav, PW-9 Insp. Nikhil Malhotra and others. PW-4 also, in his cross-examination (by A-2) could not recollect the number of calls made on 19.09.2011, but, stated that the said calls were recorded. The fact that calls were made by the complainant to A-1 from CBI's office within the hearing of PW-4 and PW-9 and the CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 29 of 123 :: 30 ::
same were simultaneously recorded, stood established. It may also be mentioned that on playing the first call, that is, audio file no. 100216-002, it is noted that the caller is asking "ab awaaz aa rahi hai". Same shows that in previous call, the person called could not hear the caller. The duration of 20 seconds of previous call (as per CDR) itself reflects that it was a short call. Further, even the time duration of recorded calls (CD Q-1) and the ones reflected in the CDR match. Calls made at 12:15:57 and 12:18:18 as per CDR were of 62 seconds and 48 seconds, respectively. The audio files of such calls in CD Q-1, are of duration of 70 seconds (i.e. 1 minute 10 seconds) and 58 seconds, respectively. Difference of 8/ 10 seconds in the call duration as per CDR and audio files in CD Q-1, is because the audio file/ recording starts when the phone is dialed. Whereas, the CDR reflects the exact duration of the call after the phone is connected. Thus, merely because, the disconnected call as per charge-sheet, is not recorded in CD Q-1, does not make other calls suspect. Moreso, because such calls have not been disputed by A-1, as no such suggestion was put by A-1 to the witnesses in cross- examination.
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11.6 It has come in the testimony of PW-2 and PW-9 that the aforesaid telephonic conversation was transferred from DVR to a blank audio CD Q-1 Ex.PW4/A. PW-9 has also stated that the said CD was got signed by the witness and was sealed with CBI seal. PW-4 identified his signatures at point 'A' on CD Q1 Ex.PW4/A. PW-2 and PW-9 have also deposed that transcript Ex.PW2/K of the said conversation, was prepared. A-2 himself suggested to PW-9 in cross-
examination that the conversation recorded on 19.09.2011 was transcribed; PW-9 admitted the same and clarified that the transcript of only the telephonic conversation between PW-2 and A-1 was prepared on 19.09.2011. PW-9 even stated that transcript Ex.PW2/K is in his handwriting. Thus, preparation of the transcript Ex.PW2/K of CD Q-1 is not in dispute. It may be mentioned that CD Q-1 was not played during the deposition of PW-2/ complainant. But, at the request of A-2, the said CD Q-1 was played during the cross- examination of PW-9. A-2 pointed towards the properties of audio files and pleaded that the same show that the conversation in CD Q-1 is fabricated.
11.7 In view of the above, CD Q-1 (Ex.PW4/A) was CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 31 of 123 :: 32 ::
played and heard in the court during final arguments. No doubt, Forensic Expert, CFSL could not examine the voice of accused/ A-1 in the CD Q1 for the purpose of rendering opinion about identity, due to poor recording quality. But, when the CD Q-1 was played in court, the dialogues could be discerned on focused attention; the transcript conformed to the conversation recorded therein, although, there is disturbance when the speaker from the other end of the call, (that is, A-1) speaks. The fact that the speaker on the other end is A-1, is established as the call was made at A-1's mobile number and the recorded calls were the same, as reflected in CDR Ex.PW3/C, as discussed in detail in paras-11.5 and 11.6 supra. Further, it is not A-1's case that his mobile was being used by someone else, at any point of time. The said conversation reveals that A-1 asked complainant to reach A-2's office at Jhandewalan around 5:00 pm - 6:00 pm; and told the complainant that his work would be done in 25-30 days. On further enquiry by PW-2, A-1 assured that Sharma (A-2) will get his work done; if Sharma did not do, he (A-1) will do it. Relevant portion of the same reads as under :
".....
C: Achcha baat suno, wo sham ko CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 32 of 123 :: 33 ::
phir Sharmaji se baat kar li, kitne baje panhuchna hai?
....
R: Yaar 5 - 6 baje ke kareeb aapko
time to diya hai. Yaar.... 5 - 6 baje
ke kareeb aana.
.....
R: Han 5 - 6 baje ke beech me.
....
R: Han-han udhar aana hai
Jhandewalan office me aana
hai.
....
R: 25 se 30 din lagenge.
.....
2nd call
R: Hello bhai saab saari bate phone
pe nahi....
.........
R: Theek hai phone karke pahunch
jaiyo.
C: Achcha theek hai bhaisaab phone
karke aaunga theek hai... Hell?....
wo jo kaam Sharmaji kara denge
aaram se koi dikkat to nahi hogi.
R: Are Sharma karaega nahi to Ravi
bhaiya karege na.
C: Theek hai... Theek hai."
The above recorded conversation further
corroborates the version of PW-2, PW-4 and PW-9. CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 33 of 123 :: 34 ::
11.8 In view of the above, it is established that on 19.09.2011, A-1, Ravi Jatav asked the complainant to reach A-2, Sanjay Sharma's office at Jhandewalan, for getting his work done. A-1 also assured PW-2, that A-2 will get his work done; and in case of any problem, he (A-1) would get it done. 11.9 Learned counsel for A-2 argued that CD Q-1 on playing in the Court clearly showed that the same was fabricated, as it showed date of modification as 16 Feb 2010 . It is noted that CD mark Q-1 on playing in court, was found containing three files; on clicking on the properties, the following attributes were found in file no. 100216-001:-
Created: Monday, September 19, 2:41:37 pm. Modified: Tuesday, February 16, 2010, 11;35:22 pm Accessed: Monday, September 19, 2:41:37 pm In the files 100216-002 and 100216-003, also, the date of creation and access were the same. These files were also shown to be modified on Tuesday, February 16, 2010 at 11:45:24 pm and 11:57:42 pm, respectively. CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 34 of 123 :: 35 ::
11.9.1 Time of creation and access (in the afternoon of 19.09.2011), rather, go to further substantiate witnesses' version. So far as modification date - 16 Feb 2010, is concerned, the said error could have occurred at the time of transfer of data from DVR to CD. It has come in the testimony of PW-9 that official laptop was used for transferring data from DVR to CD. It may be mentioned that such an error may arise, if the data (conversation) is written in a folder, which bore some previous date and time. Or, if the date and time of the computer, in which the CD was prepared, was selected and which may have been incorrect. Thus, the aforesaid date/ year of modification, was possibly due to system error. 11.9.2 Even if the learned defence counsel's argument is accepted and the recorded conversation in CD Q-1 is ignored, it does not in any manner affect CBI's case. In view of oral testimonies of witnesses PW-2, PW-4, PW-9 and CDRs Ex.PW3/C and Ex.PW3/E, it stands proved that A-1 asked the complainant/ PW-2 to reach A-2's Jhandewalan office in the evening of 19.09.2011.
11.10 PW-2 has further deposed that thereafter, they left CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 35 of 123 :: 36 ::
for SDM office at Jhandewalan and reached there at about 05:00 p.m.; before leaving for A-2's office, he was given a DVR to be put in his pocket for recording of conversation between him and the accused; he had also taken along the documents of aforesaid property. He has also stated that PW-4 Vipin Kumar was asked to remain with him during the transaction; on reaching at SDM's office, he found A-1 present outside A-2's office; A-1 had questioned him about the identity of shadow witness, PW-4 Vipin Kumar; on which, he had introduced PW-4 as his nephew. As A-2 was busy, A-1 asked him to wait; A-1 also told that no third person would be allowed to accompany him; thus, he asked PW-4 to wait outside A-2's office. PW-2's version is corroborated by PW-4, the shadow witness. PW-4 has stood by the same in his cross- examination. PW-4 in his cross-examination by A-2 has stated that he had left CBI office on 19.09.2011 after 04:00 p.m. to go to SDM office. No suggestion to the contrary was put to PW-4.
11.10.1 PW-2 has also stated that after some time A-1 informed him that A-2 has called them; on which, he alongwith A-1 entered A-2's office; on meeting A-2, he told CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 36 of 123 :: 37 ::
him about the matter and placed all the documents pertaining to the aforesaid property before A-2; he also informed A-2 that A-1 has asked for Rs.2.5 lacs for his work and has demanded Rs.One Lac in advance; on which, A-2 told him that he would facilitate procuring of de-sealing order within 25 to 30 days; and about the money part, A-2 asked him to talk to and deal with A-1; A-2 also conveyed that he would not accept money in his office; on which, A-1 intervened and told him (PW-2) that he (A-1) would collect the money later on; thereafter, he came out, while A-1 stayed back with A-2. 11.10.2 PW-2 has stood by his version in his cross- examination. PW-2 in his cross-examination stated that he remained in A-2's office for about 15 - 20 minutes. PW-2 categorically denied that he did not visit A-2's office on 19.09.2011 and had no conversation with him. PW-2's version that he alongwith A-1 went inside A-2's room and remained there for about 15 - 20 minutes, is corroborated by PW-4. 11.10.3 No doubt, PW-4 in his cross-examination stated that he did not go inside cabin and, therefore, could not tell, who all were there inside the cabin. But, it was not suggested CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 37 of 123 :: 38 ::
to him that the cabin in which complainant entered alongwith A-1, was not that of A-2's office. Rather, the fact that PW-2 visited A-2's office on 19.09.2011 is borne out from A-2's own suggestion to PW-2 in his cross-examination. Further, the veracity of PW-2's version is also established from the fact that he even gave description of SDM office and presence of guard etc. in SDM office, when he visited. The relevant portion of PW-2's cross-examination is reproduced hereunder -
"It is correct that there was security guard stationed at the gates of SDM office and the gate was a channeled one. Vol. The gate was open. It is correct that as we enter inside the gate there is a gallery. I did not pay notice if there were other staff or official in the SDM office during the time I was there. When I entered the room of accused Sanjay Kumar Sharma, he alone was sitting there. It is wrong to suggest that stenographers were also sitting in the room."
11.10.4 The version of PW-2 and PW-4 is further corroborated by PW-9. PW-9 has also deposed that after PW-2 confirmed with A-1 about visiting office of A-2 at Jhandewalan, between 05:00 - 06:00 p.m., he alongwith complainant and CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 38 of 123 :: 39 ::
PW-4 left for Jhandewalan office; the shadow witness PW-4 and the complainant went inside the office of A-2 and he remained at the safe distance. He has also deposed that PW-4 later on told that he was not allowed by A-1 to go inside A-2's office. 11.11 Learned counsel for A-1 argued that the witnesses have contradicted each other in respect of mode of conveyance for going to the office of A-2, time of visit, presence of PW-9 on 19.09.2011 and other material aspects;
PW-4 deposed that they went on the complainant/ PW-2's scooter. Whereas, PW-9 stated that they went in official vehicle. Further, PW-2 stated that they went at 05:00 pm, PW-4 stated that they had left after 04:00 pm. Suffice it to state that minor discrepancies about mode of transport, and (exact) time of visit etc. do not strike at the credibility of these witnesses, in view of their consistent testimonies in material particulars.
11.12 Learned counsel for A-1 also argued that the delay of about six months, in recording of statements of witnesses under Section 161 Cr.PC, clearly shows that a long time was taken by the prosecution to concoct a false story/ case CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 39 of 123 :: 40 ::
against the accused persons. It may be mentioned that PW-11/ IO Insp. Pankaj Vats has deposed that investigation was handed over to him on 11.11.2011. He has explained in his cross-examination that he remained busy in investigation of other cases; he met the complainant and other witnesses on 03.04.2012; and recorded their statements as per their versions. No doubt, the witnesses' statements should be recorded at the earliest. But, the delay in recording of the same by itself does not necessarily lead to the conclusion that prosecution story is fabricated. Such delay cannot be said to be fatal in the facts and circumstances/ evidence, which has come on record, in the instant case.
11.13 In view of the above, it is established that PW-2, PW-4 and PW-9 visited SDM office at Jhandewalan in the evening of 19.09.2011; as agreed, A-1 met them at A-2's office; A-1 took PW-2 to A-2's room for meeting with him;
meeting between PW-2, A-1 and A-2 lasted for about 15 -20 minutes.
12.0 Learned defence counsel further argued that recorded conversations in CDs are fabricated and the CDs CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 40 of 123 :: 41 ::
have been tampered with; the tampering of the CDs is also evident from the existence of PW-6 B.K. Kukreti's introductory voice in the CD Q-2 , who was not even present on 19.09.2011 and was joined in the raiding party only on 22.09.2011, as per CBI's own story; and also from the fact that 2 audio files (002 and 003) from CD Q-2 and three audio files (100220_002, 100220_003 and 100220_004) from CD Q3 are missing. Therefore, same are not admissible in evidence. Reliance in support was placed upon judgments R.M. Malkani Vs. State of Maharashtra, AIR 1973 SC 157, Mahabir Prasad Vs. Dr. Surinder Kaur, AIR 1982 SC 1043, N. Sri Rama Reddy Vs. V.V. Giri AIR 1971 SC 116 and the judgment of hon'ble Delhi High Court dated 21.08.2008 in WP (Crl.) No. 796/2007 titled as - Court on its own Motion Vs. State & Ors [referred to as R.K. Anand's case]. The conditions for admissibility of tape recorded conversation in evidence, as laid down in these cases, inter alia, are - the accuracy, authenticity of the conversation should be proved; the voices recorded therein should be clearly audible and properly identified by the maker of the record or by others, who recognizes the voice and the conversation should be relevant as per Evidence Act. CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 41 of 123 :: 42 ::
12.1 Suffice it to state that the proposition of law as laid down in the aforesaid cases is unassailable. Now let me examine the tape recorded conversations in CD Q-2 in the instant case.
12.2 It has come in the testimonies of PW-2; PW-4 and PW-9 that on their return to CBI office on 19.09.2011, the DVR was played and heard; and the conversation between complainant, A-1 and A-2 was transferred to CD Q-2 (Ex.P-4), which was got signed by PW-4 and was sealed with the seal of CBI. PW-4 corroborated the same and identified his signatures on CD Q2 (Ex.P-4) at point 'A'. PW-2 has also deposed that on 03.04.2012, transcript of the aforesaid conversation - Ex.PW2/J was prepared. Same is corroborated by PW-4 and PW-6; these witnesses have stated that they had put their signatures on the transcript; both the witnesses identified their signatures on Ex.PW2/J. PW-2 has stood by his version in cross-examination and denied that the transcript Ex.PW2/J is not the correct transcript of the recorded conversation. PW-4 was not cross-examined about the transcript. PW-6 in his cross-examination has specifically stated that the transcript was not prepared on 22.09.2011 and CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 42 of 123 :: 43 ::
was prepared in the office of CBI after 2 - 3 months of the incident.
12.3 PW-9 stated that on hearing the conversation between complainant, A-1 and A-2, demand of bribe on part of accused Ravi Jatav on behalf of accused Sanjay Sharma was revealed. It also revealed that A-2 Sanjay Sharma had the complete knowledge of the same. PW-4 however, could not recollect the exact conversation, which took place between the complainant and A-2. He then stated that A-2 was reluctant to do any work for the complainant. 12.4 CD Q2 (Ex.P-4) was played in the court and the conversation therein was found clearly audible. PW-2 identified A-1 and A-2's voice in that CD. PW-2 has stood by the same in his cross-examination. He even specified the portions of conversation which took place between him and A-1 outside SDM's office on 19.09.2011; and amongst him, A-1 and A-2, inside A-2's room. PW-2 also testified that dialogues of A-1 Ravinder Jatav, A-2 Sanjay and himself are depicted as against A-1, A-2 and C, respectively in the transcript Ex.PW2/J. To PW-2 in his cross-examination, only a general suggestion CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 43 of 123 :: 44 ::
was put by accused persons that he has wrongly identified their voices in CDs; A-2 suggested to PW-2 that the conversation recorded in CD Q-2 [and Q-3]; and also that the transcript Ex.PW2/J prepared by CBI, is not correct transcript, which was categorically denied by PW-2. 12.4.1 While disputing PW-2's identification of voices of A-1 and A-2, it was further suggested to PW-2 that A-1 had nothing to do with A-2 . Falsehood of the said averment/ suggestion of A-1 is exposed by A-1's CDR, Ex.PW3/E. The CDR shows that A-1 had been calling up A-2. He (A-1) made calls to A-2 on 17.09.2011, 18.09.2011, 21.09.2011 and 22.09.2011. Even on 22.09.2011, A-1 had called up A-2 in the morning at 10:38:43 and even at 17:58:53, that is, soon before he visited PW-2's shop. No explanation has come from A-1 as to what were those calls about, when he had nothing to do with A-2. Further, although A-2 suggested to PW-2 that the recorded conversation was fake/ manipulated. But, he did not specifically point out the manipulations in conversation and in the transcript. On playing CD Q-2 Ex.P-4 in court, it was found conforming to the transcript.
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12.4.2 Even PW-9 in his cross-examination stood by his deposition and categorically denied that no such conversation had taken place or recorded on 19.09.2011 and that the conversation recorded in CD Q2 is manipulated. He also denied that no such transcript was prepared. 12.4.3 Ld. counsel argued that the fact that the transcript is not as per the CD Q-2 is evident from PW 6's deposition;
PW-6 has stated that although, the conversation was not audible but they were asked to prepare the transcripts. The fact that the conversation in CD Q-2 is clearly audible and conformed to the transcript Ex. PW 2/J, shows that PW-6 could not properly recollect the facts. PW-6 has admitted that he had verified and signed the transcript Ex. PW 2/J and even the transcripts of specimen voice samples of the accused persons, Ex. PW 2/H1 and Ex. PW 2/H2.
12.5 Besides identification of voices of A-1 and A-2 by PW-2, even Voice expert PW-7 vide his report Ex.PW7/B, opined that on comparison, the questioned voice of A-1 in CD Q-2 and questioned voice of A-2 Sanjay Sharma in portion of conversation marked Ex.Q2 (iii) (which as per PW-2 took place CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 45 of 123 :: 46 ::
in A-2's room), were found similar to their specimen voices Ex.S-1 and Ex.S-2, after comparison, in respect of their linguistic and phonetic features. Spectographic analysis of A-1 and A-2's voices, however, could not be carried out, for the reasons recorded in the report. It is also noteworthy that PW-7 has given categoric opinion that - "there is no pause, no discontinuity of speech, no change in background noise in speech conversations, no spikes in speech wave form could be detected. Hence, the same might not have been tampered".
12.5.1 PW-7 in his cross-examination has stood by his report. He categorically denied that there were unnatural gaps and pauses, showing discontinuity in speech in the recordings in CDs and that no waive form analysis test was conducted. He also denied that in the questioned CDs, the background noises had been altered/ manipulated before the same were conveyed to him. He further denied that he did not conduct the analysis of questioned CDs properly and has given a wrong report. Thus, nothing could be extracted from PW-7 in his cross-examination so as to doubt his report and to suggest tampering/editing in questioned CDs Q1, Q2 and Q3.
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12.6 Learned counsel for A2 argued that the details given at point-7 (ii) of Voice Expert's Report Ex.PW7/B, shows that the questioned voice in CD Q-2(portion 2 (iii) )was compared with the specimen voice of A-1 and not that of A-2.
Thus, PW-7's opinion about similarity of A-2's sample voice with his questioned voice in CD Q-2 [portion Q-2 (iii)], is of no consequence. Bare perusal of the Voice Expert's Report Ex.PW7/B shows that mentioning of name of Ravi Jatav (A-1) in that para as against the sample voice marked Ex.S-2, is a typographical mistake. Same becomes further clear when read with opinion rendered on query no. 2, which as per letter Ex.PW7/A, required FSL to compare the specimen voice contained in CD Mark S-2 with questioned voice contained in CD Mark Q-2.
12.7 Now reverting to Ld. defence counsel's argument that existence of PW-6 B.K. Kukreti's voice shows tampering of CD Q-2. It is seen that the introductory voice of PW-6 Sh. B.K. Kukreti appears in CD Q-2 containing conversation recorded on 19.09.2011, whereas, he was joined in as a witness on 22.09.201, as per CBI case. This fact has remained unexplained by CBI. But, that is no ground for throwing away CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 47 of 123 :: 48 ::
lock, stock and barrel, the entire evidence/ conversation which has come on record. It is a settled position of law if there is reliable and trustworthy evidence to connect the accused to the crime, the court can rely upon such evidence led by the prosecution. In this regard, reference with benefit is made here to the observations of hon'ble Justice M.B. Shah while writing dissenting judgment dated 15.04.2002 in Appeal (Crl.) 761 of 2001 titled as Krishna Mochi & Ors. Vs. State of Bihar, (Supreme Court). The relevant portion of the same is reproduced hereunder:
"(1) ....the investigation in the present case is totally defective. The investigating officers have not taken any care and caution of recording the statement of witnesses immediately. ...... Investigating officer is not examined. ..... Court has also observed where neither the prosecution nor the defence has come out with the whole and unvarnished truth to enable the court ......... ........ ...... that indulging in free fabrication of the record is a deplorable conduct on the part of an investigating officer which undermines the public confidence reposed in the investigating agency. ....
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(2) ...... the judicial approach in dealing with such cases has to be cautious, circumspect and careful. In case of defective investigation, the Court can rely upon the evidence led by the prosecution and connect the accused with the crime if found reliable and trustworthy. ............
credibility of witnesses has to be measured with same yardstick, .............. whether depositions are honest and true."
Hon'ble Justice Arijit Pasayat who was in majority with hon'ble Justice B.N. Agrawal in the aforesaid case, observed as under:
"..... So far as accused - appellant No. 2
Dharmendra Singh @ Dharu Singh is concerned, PW21's evidence is the only material against him, ..... Section 134 of Indian Evidence Act, 1872 is a pointer in that regard. This provision follows the maxim that evidence is to be weighed and not counted. ...
..... In essence prayer is to apply the principle of falsus in uno falsus in omnibus. This plea is clearly untenable. Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 49 of 123 :: 50 ::
notwithstanding acquittal of number of other co-accused persons, his conviction can be maintained. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain. ..... Falsity of particular material witness or material particular would not ruin it from the beginning to end. .... ...
12.7.1 The conversation in CD Q-2 is clearly audible;
voices in the same have been identified by PW-2. The said conversation is flowing naturally. Background sounds in conversation when PW-2 is talking to A-1 and otherwise and even when PW-2 is talking to A-2 on meeting him, also, are contemporaneous and natural.
12.7.2 Even the Voice Expert vide his Report Ex.PW7/B has opined that the laboratory examination of recorded conversations contained in compact discs marked exhibits 'Q-1', 'Q-2', 'Q-3', 'S-1' & 'S-2' revealed that "there is no pause, no discontinuity of speech, no change in background noise in speech conversations, no spikes in speech wave form could be detected. Hence, the same might not have been tampered". PW-7 in his cross- CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 50 of 123 :: 51 ::
examination has categorically denied that there were unnatural gaps and pauses, showing discontinuity in speech in the recordings in CDs and that no waive form analysis test was conducted. He also denied that in the questioned CDs, the background noises had been altered/ manipulated before the same were conveyed to him. He further denied that he did not conduct the analysis of questioned CDs properly and has given a wrong report. Thus, nothing could be extracted from PW-7, in his cross-examination, so as to suggest tampering/editing in questioned CDs (Q1, Q2) and Q3 or to doubt PW-7's deposition.
12.7.3 The fact that the said CDs were received in sealed condition at CFSL and there was no tampering in seals, has also come on record. PW-7 has testified that the five sealed parcels alongwith specimen seal impression and copy of transcription were received in Physics Division of CFSL on 25.11.2011, vide letter no. DAI-2011-A-0018/DLI/15503, dated 24.11.2011, Ex.PW7/A; the seals of the parcels were tallied with the specimen seal forwarded and were found intact.
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12.8 In view of the above, reference is made to transcript Ex.PW2/J of conversation recorded in CD Q-2. The relevant portion of the same is reproduced hereunder:-
"C: Main kitne baje tak pahunchu -
bolo.
....
A-1: 5:30 baje ke baad.
C: 5:30 baje ke baad pahunch jaunga.
A-1: abhi vo --- phone kar dunga main.
...
A-1: main jab apko phone karunga.
C: acha theek hai ji...
.....
A-1: Tum tension lene lage.
A-1: tumhe vo dikhata hun, har koi nahi dikhayega...tumeh main number .. Commissioner K.S. Mehra, MCD mein Secretary ...
A-1: Commissioner, K.S. Mehra, MCD se abhi phone pe baat karunga seedha.
...
A-1: are, Sharma Ji to kehte hain, kahan fasa diya yaar.. to main bola CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 52 of 123 :: 53 ::
vo thodi aisi situation me hain...
...
C: bhai sahab, hum bahut nirash ho chuke hain...sab log ne humko loota hai.. hume apne to...
A-1: abhi to aap hamare palle pade ho na..
C: bhagwan kare ...kaam ho jaye.
A-1: bhai nahi jayega andar...aap hi jaoge, 20 se 25 mein ho jayega, apka kaam.
C: bas..bas..bas.
C: paise main abhi de dunga..Sharma Ji ko...lekin aisa hai. Kaam fir jaldi..kal se shuru ho jana chahiye..
A-1: aisa hai..jab apka kaam hone lagega to hum apko ek hafte pehle bata denge...ki aap paison ka jugad kar lo.
C: Ji main yeh hi baat karne vala tha...ki aap 1 - 2 din pehle bata dena.
A-1: are, nahi hum.. ek hafte pehle bata denge...dekho hum lekar chal rahe hain.. time maan lo apka kaam ek hafte mein ho jaye...
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...
A-1: main phone kar raha tha apko...par attend nahi kiya..fir Sharma Ji bol rahe the.
..
A-1: main abhi khud Patel Nagar se aa raha hun ki apko time de rakha hai..fir Sharma Ji bhi kehne lage ki aa jana tum bhi.
...
A-1: mera ye kehna hai ki zyada baat mat karna, bas yes aur no ...aur lo ji Sharma Ji pakdo.. kaam ho jayega.
C: ...
A-1: To aapne mujhe paper nahi
dikhaye.
....
A-1: Demolition ke orders bhi aaye
the.
.....
A-1: yeh paper inhone..mujhe diye the.
C: ek minute, mujhe baat karne
do..pehle jo shart rakhi thi humne.
...
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C: Haan ji sahab man...
A-2: kya haal hain.
C:- ...
A-1: Ye paper inhone..mujhe dikhaye
the...
A-2: vo dekh rakhe hain maine.
C: nahi.. nahi vo notice tha..nahi..nahi
apki knowledge mein de dun ki kaam
kya hai...
...
C: inhone jo Ravi Ji ne humko bataya ki
vo hamari actually neeche ki dukan
thi...aur notice banaya ground floor to top floor...ab inse jo pehle baat hui thi paune do...ab sawa do mein baat ho gyi hai.
A-2: vo app apna dekh lo.
...
C: .....hum ye chahte hain ki paisa ek
dafa lag jaye, par nipat jaye.
....
A-2: To slum ki property ho to seal...
A-2: Ye to isko hi D-seal karane ki baat
rahi hai na...
C: haan ji..haan ji.
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....
A-2: main jo seal ka order iske against me D-seal ka order karwana ha, bas aur koi kaam nahi ha.
C: ji sir, bas yahi kaam hai ...
A-2: Iske alawa to aur koi kaam nahi hai C: na na, iske alawa aur koi kaam...
A-2: Wo hamare departement ki sirdardi hai .....
A-2: Koi dikkat nahi kaam ho jayega.. C: Bas aapke sahyog se ho jayega...
A-2: Aur ab ye baat apne paas he rakhna.. kisi IIIrd person ko mat batana agar pata chalega to usi din bhai saheb...
....
A-2: Paise aap andar rakh lo, aapko ye hi hai. Na ki bhai aapke paise mare na, is baat ki mai guarantee deta hu.
A-1: aap mere ko de dena paise...
A-2: Aisa hai, paiso ki guarantee hai, yadi ye kaam nahi hota, to paise CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 56 of 123 :: 57 ::
aapko waapas mil jayenge...
C: Bas...
A-2: Aapke chachaji ne mere ko appraoch kiya. Kis tarike se aapka kaam ho jayega....
C: Sharma ji aapne bulaya..aur ab aap aisa kar rahe ho....
A-2: Yaar... ab guarantee de di aur kya...
....
A-2: Are, guarantee to le li yaar, aur batao....
A-2: Ye kitne paise de rahe hai.....
A-1: Ye ek lakh abhi de rahe hai. Aur sawa baad me denge...
A-2: Aur jo bhi hai. Kar.... kura ke..... A-1: Aur ji 20-25 din ka time diya hai.... A-2: Jab aapka time poora ho jaye, tab aap mere ko bata dena, ki inhone kaap poora nahi karwaya, tab mai inko bata doonga... Tab faisla lenge....
C: Mainn to paisa laya hoon.......
A-1: Kitne laye ho
C: Poora ek lakh haan....
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A-1: To ek lakh hi chahiye appko.....
C: To le lo na...
A-2: Nahi..Nahi.. yanha nahi...
C: To jaisi aapki marji
A-2: Aur batao.....
C: Bas ji....sharma ji......
A-2: Kagaj aap mere ko wahan de dena,
aur appka man kare to phone kar
lena...
C: Bas ji ghar ki baat ha..."
12.8.1 The above conversation corroborates the version
of PW-2 that through A-1, he met A-2 in his office at Jhandewalan; A-2 assured to get the said property de-sealed; he even guaranteed that desealing work would be done in 20-25 days; but, A-2 refused to receive the money in his office. A-2 however, enquired with A-1, as to how much (bribe) amount was being paid by PW-2. "Ye kitne paise de rahen hai". A-1 then apprised A-2 that "Ye ek lakh abhi de rahe hai. Aur sawa baad me denge...."
12.9 From the above conversation, it is clear that A-2 refused to receive any money in his office - "nahi - nahi yahan nahi". Further, A-2 had asked PW-2 to deal with A-1, about money part. It has also come in the aforesaid CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 58 of 123 :: 59 ::
conversation that A-1 told the complainant/ PW-2 - "are, Sharma Ji to kehte hain, kahan fasa diya yaar.. to main bola vo thodi aisi situation me hain..."This reflects the reluctance on the part of A2. Same explains PW-4's version that PW-2 on his return from SDM's office had told him that SDM refused to accept the money; and that A-2 was reluctant to do any work for the complainant, much was made out of which, by learned defence counsel. PW-4's version gets further clarified, when considered in entirety and read in the context of aforesaid recorded conversation. PW-4's version rather, goes to only corroborate the version of PW-2 that A-2 had not received money in his office.
12.10 Learned counsel for A-2 argued that as per the witnesses, the transcript was prepared on 03.04.2012. How was the same received by CFSL on 25.11.2011. Further, there is no mention of transcript in the forwarding letter dated 24.11.2011, Ex.PW7/A. It may be mentioned that PW-7 in his cross-examination has explained that a rough draft of transcript was supplied by IO at the time of sending the CDs to FSL, although, the same is not mentioned in forwarding letter.
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12.11 Learned defence counsel further argued that two audio files no. 002 & 003 in CD Q-2 are missing. Same also shows tampering. Learned Sr. PP submitted that IO tests the system; such testing & conversations, which are not relevant for the matter in issue are not transferred to CD. 12.11.1 Be that as it may. As per A-2's own suggestion, every time the DVR is switched off and switched on again, a new file is generated. Meaning thereby, that each audio file is a separate set of conversation recorded in one go. In view of the sufficient evidence on record, as discussed in preceding paras, what needs to be seen is, whether there is any tampering in the conversation recorded in a particular audio file or not. As already discussed above that as per CFSL report Ex.PW7/B no pause, discontinuity in speech, no change in background noise in speech conversations and no spikes in speech wave form was detected by the voice Expert, while examining the recorded conversation.
12.12 It was further argued by learned counsel for A-1 that as per CBI's case, the complainant had not carried any money on 19.09.2011, when he visited A-2's office. Whereas, CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 60 of 123 :: 61 ::
in the recorded conversation, it could be heard that someone is instructing PW-2 not to handover the money, till demanded. The same shows that the trap was laid on 19.09.2011. Whereas, a different story is put up by prosecution before this Court. This renders the entire prosecution case doubtful and the same needs to be thrown out.
12.12.1 It is noticed that in CD Q-2, PW-2 is being instructed to handover the money only on demand. As already mentioned above that merely because the prosecution has not come out with whole unvarnished truth, same does not render the entire evidence unbelievable.
[Krishna Mochi's case (supra)].
13.0 Even if for a while, learned defence counsel's argument is accepted and the conversation recorded in CD Q-2 is ignored, still from the oral evidence, it is established that A-1 agreed to get the said property de-sealed through A-2, and had demanded a sum of Rs.Three Lacs for the said work; on bargaining, the said amount was reduced to Rs.2.25 lacs. It has also been proved that A-1 arranged a meeting between PW-2 and A-2; PW-2 alongwith A-1 met A-2 CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 61 of 123 :: 62 ::
in his (A-2's) office on 19.09.2011; the said meeting/ discussion lasted for 15 - 20 minutes. PW-2 has deposed that during that meeting A-2 assured him to get the said property de-sealed, but refused to receive the money in his office. Of course, shadow witness PW-4 could not witness/ hear the said discussion, as he was not allowed to go inside, hence there is no corroboration to that fact, except for the aforesaid recorded conversation. But,the same is no ground not to believe his testimony,particularly, in view of other facts having been proved and no explanation has come from A-2, as to why PW-2 had come to meet him and about A-1's access to him.
PROCEEDINGS OF 22.09.2011
14.0 It is the case of CBI that after arrangement of money by PW-2, the trap was laid on 22.09.2011. PW2 has deposed that he could arrange only Rs.25,000/- as against Rs.One Lac, demanded as advance; he visited CBI office again on 22.09.2011; public witnesses, namely Sh Vipin Yadav (PW-4) and Sh. B.K. Kukreti (PW-6) were called; he (PW-2) was asked to call up from his mobile phone to A-1's mobile phone, to confirm the demand. He then made a call to A-1; the said CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 62 of 123 :: 63 ::
conversation was recorded and was simultaneously heard by public witnesses as well as CBI officials; A-1 told him that he shall collect the money from his (PW-2's) footwear shop. PW-2 was not cross-examined with respect to the phone calls made by him to A-1.
14.1 PW-2 has further testified that on confirmation of the demand, the currency notes of Rs.25,000/- produced by him were treated with some powder and a demonstration was given about its effect; the pink solution was then thrown away and then everyone washed hands; the numbers of currency notes were recorded in a memo; thereafter, the currency notes of Rs.25,000/- were kept in his right side pant pocket by some CBI official; the entire proceedings were recorded in handing over memo Ex.PW2/C. 14.1.1 PW-4 as well as PW-6 have corroborated the making of phone calls by the complainant to A-1 within their hearing. PW-4 has deposed that PW-2 had informed A-1 about arrangement of money demanded for getting his work done;
and that A-1 had told the complainant/ PW-2 that he could meet him in the evening; it was then decided to meet at the CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 63 of 123 :: 64 ::
complainant's shop; A-1 had asked the complainant to call him upon reaching the shop. PW-6 has also deposed that the complainant (PW-2) called one Sh. Jatav (AI) from his mobile phone and they had talks regarding exchange of some money and discussed about the time of their meeting. Both PW-4 and PW-6 have also corroborated the treatment of currency notes with phenolphthalein and about demonstration given to them about reaction of phenolphthalein with sodium carbonate solution. PW-9 Nikhil Malhotra has further corroborated the testimony of PW-4 and PW-6.
14.2 Now coming to learned defence counsel's argument that it is CBI's case that on 19.09.2011, for verification, only one independent witness, namely Sh. Vipin Kumar Yadav (PW-4) was joined in; and no money was carried by the complainant on that day. Further, the trap was laid on 22.09.2011, when complainant produced Rs.25,000/-; another independent witness Sh. B.K. Kukreti (PW-6) was joined in only on that day; Rs.25000/- were treated with phenolphthalein powder. Whereas, PW-2 has given a different story and stated that both the independent witnesses were called on 19.09.2011 and that he had even produced GC notes of Rs.
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25000/- on that day, which were treated with phenolphthalein; and as A-2 told him that he should talk to A-1 for money, he took the money back. As per PW-2, he brought the same currency notes on 22.09.2011; and these notes were not treated with phenolphthalein again on 22.09.2011. Further, as per the complaint, he even wore different pants on 22.09.2011; and that the same set of currency notes (treated earlier with phenolphthalein on 19.09.2011) were paid by him to A-1. It was further argued that PW-2 was not declared hostile by CBI and no clarification on this aspect was sought from him. Thus, two contradicting versions have come on record; and therefore, the prosecution story cannot be believed.
14.2.1 Learned Prosecutor submitted that PW-2 is a lay man. He appears to have mixed up the proceedings of two days. Such mixing of facts by PW-2 does not in any manner render PW-2's testimony/ prosecution case, suspect. 14.2.2 PW-2's testimony when considered in entirety does inspire confidence. Moreso, as his version stands corroborated in material particulars by the independent CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 65 of 123 :: 66 ::
witnesses. It may also be mentioned that PW-2 was extensively confronted with his statement under Section 161 Cr.PC Ex.PW2/DB, but, except for minor variations in presentation of the version, and missing of few details, no material contradictions could be brought on record, so as to strike at the credibility of PW-2.
14.3 Much was argued by Ld. counsel for both the accused persons that the entire exercise is suspect, as PW-4 stated that Rs.25,000/- was kept by PW-6 in complainant's pocket, whereas, PW-2 and PW-6 stated that a CBI official had kept the money in complainant's pocket. It may be mentioned that all the three witnesses are consistent in their deposition about the said exercise in material particulars; mere variation in PW's version about the said detail, does not dent their testimony.
14.4 PW-2 has further testified that after he confirmed with A-1, the trap team including independent witnesses had reached near (his shop) M/s Poonam Shoes, Multani Dhanda, Pahar Ganj, at about 05:15 p.m.; PW-4 Vipin Kumar Yadav and PW-9 Insp. Nikhil Malhotra remained in the shop posing as CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 66 of 123 :: 67 ::
customers. PW-2 has further stated that when A-1 did not arrive till about 05:30 p.m., PW-9 Nikhil Malhotra, instructed him to call up A-1 at about 05:45 p.m. to confirm about his arrival; he called up A-1 accordingly; A-1 informed that he was on his way; A-1 arrived at his shop at about 06.10 p.m.; as the DVR was with Insp. Nikhil Malhotra, he hurriedly went out of the shop pretending to visit washroom and Insp. Nikhil Malhotra also followed him and put DVR in his pocket; he returned to the shop, after about five minutes. Thereafter, he struck conversation with A-1 and inquired about the money to be paid; on which, A-1 told him to pay Rs.One Lac and also assured that the work would start from Monday and would be completed in 25 - 30 days. PW-2 has also testified that thereafter, he took out Rs.25,000/- from his pant pocket and handed the same to A-1, who accepted the same with his right hand; he informed A-1 that remaining Rs.75,000/- were lying in dicky of his scooter, as it was in small currency notes; he then requested A-1 to count the money; A-1 then started counting the notes; this whole transaction was witnessed by PW-4 Vipin Kumar Yadav and the conversation was being recorded on DVR.
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14.4.1 PW-2 has further stated that as soon as A-1 started counting the notes, he gave a missed call on the mobile phone of PW-10, TLO, Insp. Kailash Sahu; meanwhile, after counting the notes, A-1 kept the money in backside pocket of his pants; by that time, all the team members came inside the shop and apprehended A-1 Ravi Jatav holding him by the elbows; the tainted money of Rs. 25,000/- was taken out from his pants' pocket; the amount and the currency note numbers were tallied with the Handing Over Memo Ex.PW2/C, which tallied in toto. It is noted that PW-2 was not cross-
examined in this regard by either of the accused persons, except asking him as to who took out money from A-1's pocket, which PW-2 could not recollect. Only an omnibus suggestion was put to PW-2 by A-1's advocate that A-1 never demanded any money for himself or for anyone to get his property de-sealed, and that no money was delivered to him on 22.09.2011, which was denied by PW-2. 14.5 PW-4 and PW-6 have corroborated PW-2's version of going to his shoe shop, presence of PW-4 and PW-9 in the shop, witnessing of transaction; keeping of money by A-1 in his pants' pocket, although, PW-4 could not exactly recollect CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 68 of 123 :: 69 ::
whether A-1 had kept the money in the front pocket or back pocket of his pant. But, he has categorically stated that it was the right side pocket.
14.5.1 PW-4 has also deposed that there was a discussion between the complainant and A-1 Ravi Jatav, during which the complainant told him that the money was ready; A-1 insisted that agreed amount be paid to him and assured that the complainant's work would start from Monday onwards; on which, the complainant took out the bribe money from the right side pocket of his pant and gave it to A-1, who collected the same with his right hand; on asking of the complainant, A-1 started counting the same; he saw that A-1, after counting the bribe money, kept the same in front right side pocket of the pant; soon thereafter, Inspector Sahu (PW-10) alongwith other CBI officials came inside the shop and apprehended A-1 by his wrists. In his cross-examination, nothing could be extracted so as to dent the testimony of PW-4.
14.5.2 PW-6, who was outside the shop, has also corroborated about the presence of A-1 in PW-2's shop, his CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 69 of 123 :: 70 ::
apprehension etc. He has stated that he was told by one of the CBI officials (on receipt of signal) that the task has been done; he then proceeded towards the shop; at the shop he found present A-1 Ravi Jatav; PW-6 correctly identified A-1 in the court. No suggestion was put to him that he has wrongly identified the accused/ A-1. Pw-6 further stated that A-1 was then caught hold by his hands by the CBI officials. PW-6 has stood by the same in his cross-examination and has stated that when they rushed to the shop on receiving the agreed signal, complainant (PW-2), PW-4 and one CBI official were inside the shop. No suggestion to the contrary was put to PW-6 in his cross-examination. Thus, apprehension of A-1 at the complainant's shop remained undisputed. 14.5.3 PW-9 and PW-10 (TLO) Kailash Sahu also corroborated recovery of tainted GC notes from A-1's pocket and that the details of recovered GC Notes totally tallied with the details in handing over memo Ex PW2/C. 14.6 In view of the above, a slight variation (of about 15 - 30 minutes) in the testimony of PW-4 and PW-6 about time of their reaching at complainant's shop, as pleaded by CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 70 of 123 :: 71 ::
learned defence counsel is hardly of any significance. 14.7 Learned defence counsel's arguement that witnesses have simply toed the line of CBI, though they were not even present at the spot (shop) is also stated only to be rejected. It may be mentioned that PW-4's presence in the shop remained unchallenged as no suggestion to the contrary was put to PW-2 in his cross-examination. PW-6's presence at the spot on 22.09.2011 is also not disputed by A-1, as is borne out from his own suggestion to PW-6 in cross-examination. To which PW-6 responded that - ".... It is correct that I was standing across the road on the Patri just opposite the shop."
He also stated that he was stationed at about 25 meters from the shop, but denied that he was not able to see inside the shop and that he was deliberately concealing this fact at the behest of CBI.
14.7.1 Further, learned defence counsel also argued that even PW-9's testimony is not trustworthy, as he was not even present there. It may be mentioned that the presence of PW-9 in complainant's shop, has come in the testimony of PW-4 as well as PW-6. PW-4 in his cross-examination CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 71 of 123 :: 72 ::
categorically denied that PW-9 was not inside the shop and that he remained outside the shop through out the proceedings. Though, PW-6 did not name PW-9, but stated that besides PW-4, one CBI official was inside the shop. PW-6 has stood by his version in his cross-examination, and has stated that the complainant, public witness (PW4) and some CBI officials were inside the shop and some outside. 14.8 Learned counsel for A-1 further pleaded that as per PW-2 and PW-4, PW-9 was sitting inside the shop.
Whereas, as per the Site Plan Ex.PW2/F, PW-9 was outside the shop; therefore, PW-9 could not have seen the alleged transaction between A-1 and PW-2. It is noted that PW-9 has deposed that he and PW-4 were seated inside the complainant's shop posing as customers. It has also come in the testimony of PW-2 that he went out to get DVR on by PW-9, when A-1 arrived; PW-9 switched it on and then he returned to the shop. PW-9 in his cross-examination, has also stated that when after putting on the DVR, he came back to the shop, he stood just outside the shop. Even, the perusal of Site Plan shows that PW-9 was just outside the shop. Thus, I find no force in learned defence counsel's argument that PW-9 CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 72 of 123 :: 73 ::
could not have seen A-1 counting the currency notes and keeping them in his pants' pocket, from where he was standing.
14.9. It was further argued by learned defence counsel that as per PW-2 himself, there was CCTV camera in his shop.
But, the CBI has not obtained the recording of CCTV camera. It may be mentioned that PW-2 in his cross-examination has stated that CCTV camera in his shop was without any facility of recording. He even clarified that CCTV camera was not installed in his shop; it was actually installed in the godown nearby; and only the footage of the same could be seen on the screen kept in the shop. He categorically denied that he was deposing falsely in this regard to suppress the truth. 14.10 It was also argued by learned counsel for A-1 that brother of PW-2 as well as his employees and customers were present in the shop at the time of alleged receipt of bribe amount by A-1. But, none of those persons/ natural witnesses have been joined in as a witness by the prosecution; nor are their voices appearing in the DVR. Needless to mention that it is settled position of law that non-joining of public witnesses CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 73 of 123 :: 74 ::
by itself is no ground for suspecting/ rejecting the other evidence. More so, as in the instant case, the independent witnesses were already joined in by CBI.
15.0 PW-2 has also deposed that the hand wash of both the hands of A-1 was taken; on which, the color of solution changed to pink; the said hand washes were then transferred to two clean glass bottles and were sealed in his presence and that of independent witnesses; and their signatures were taken on the piece of paper affixed on the bottles. Thereafter, on being asked by CBI officials to arrange for a change for A-1, he bought a Payjama; accused then changed and thereafter, wash of A-1's pants' pocket was taken, which also turned pink, same was also transferred into a clean glass bottle. PW-2 identified the glass bottles marked 'RHW' 'LHW' and 'BSPPW', Ex.P-1 to Ex.P-3, respectively. No suggestion to the contrary was put to him in cross-examination. Rather, he was not cross-examined with respect to hand-washes and the pant pocket wash turning pink, preservation of the said solutions, etc., at all except whether hand-wash contents were signed by witnesses. PW-2 could not recollect the same. But, the independent witnesses PW-4 and PW-6 themselves have CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 74 of 123 :: 75 ::
stated that they had signed on bottles containing washes. TLO, PW-10 Kailash Sahu also corroborated the same. 15.1 PW-4 also stated that the wash of inner lining of the back pocket of the A-1's pant was taken. Both, PW-4 as well as PW-6 even identified the solution in three sealed bottles marked RHW, LHW, BSPPW, Ex.P-1 to Ex.P-3. None of the witnesses PW-4, PW-6 and PW-10 was examined in this regard. PW-4 was only asked about the color of A-1's pants and from where did the complainant bring the spare trouser.
PW-6, while responding to the query of A-1, as to how many documents were signed by him, stated that he had signed on bottles in which the hand-wash were taken. No suggestion to the contrary was put to him.
15.2 It was argued by learned counsel for A-1 that A-1's trousers, an important piece of evidence, is not produced in the court by CBI; same exposes the falsehood of CBI's theory of recovery of tainted money from A-1's pant pocket. It was also argued that although as per CBI, A-1 came to complainant's shop on scooter. But, neither the scooter nor its keys were seized.
CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 75 of 123 :: 76 ::
15.2.1 PW-2, PW-4 and PW-9 are consistent in their version that A-1 visited the complainant's shop; and after accepting the bribe amount of Rs. 25,000/-, he kept it in his right side pants pocket; A-1 was even caught red handed; and subsequently, wash of right side back pocket of his pants was taken, after providing A-1 a change; even PW-6 and PW-10 have deposed on the same lines. In view of the same, merely because pants of A-1 were not formally seized and produced before the Court does not wipe out the consistent oral testimony of the witnesses. Non-seizure of pants is inconsequential. For the same reasons, I find no force in learned defence counsel's argument that non-seizure of A-1's scooter/ its keys shows that he never visited the shop of PW-2. 15.3 As mentioned above, even the 50 currency notes in the denomination of Rs. 500/-, Ex.PW2/D (collectively) recovered from A-1's pant's pocket were identified by PW-2, PW-4 as well as PW-6. The denomination and numbers on recovered currency notes tallied in toto with the particulars of currency notes, as mentioned in handing over memo Ex.PW2/C. CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 76 of 123 :: 77 ::
15.4 In view of the above, it stands established that A-1 had demanded and accepted/ received the tainted money (Rs.25000/-) from the complainant/ PW-2 and had kept the same in his pants' back pocket.
16.0 PW-2 has also deposed that as A-1 Ravi Jatav told CBI officials that the work was to be got done by A-2 Sanjay Kumar Sharma, A-1 was instructed to make a call to A-2 from his mobile phone and inform him that he has collected Rs.1 Lac from PW-2; on which, A-1 called up A-2, in his presence and that of independent witnesses and CBI officials; the said conversation was made with A-1's mobile on speaker mode;
the same was heard by everyone present and was also recorded in the DVR simultaneously; as instructed, A-1 conveyed to A-2, that he had collected Rs.1 lac; on which, A-2 asked A-1 to keep the money with himself and that the same be handed over, the next morning. PW-2 has also stated that thereafter, A-1 was asked by CBI officials, to again call up A-2 on his mobile phone, in order to confirm his location; A-1 again called up A-2 and asked him about his whereabouts; on which, A-2 apprised that he was still in office; A-1 then requested A-2 to stay back in office and that he was CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 77 of 123 :: 78 ::
coming to meet him; thereafter, all of them went to SDM Office, Jhandewalan; on reaching A-2's office, the CBI officials, after introducing themselves, asked A-2 as to how was he going to get his (PW-2's) work done; A-2 was also confronted with the recording of conversation between him and A-1; but, he did not reply. PW-2 was not cross-examined in this regard by either of the accused persons.
16.1 PW-4 has corroborated PW-2's version. PW-4 deposed that on being asked as to how was he planning to get complainant's work done, A-1 told that - "....it was to be done through Sh. Sharma, SDM and on that the CBI officials called upon him to place a call accused Sharma, SDM. The DVR was put on to record the conversation. Accused Ravi Jatav told him that he had collected the amount of Rs. 1,00,000/- from Ashok Kumar Puri and he would deliver the said amount to him next day in the morning. Accused Sharma replied that it was OK with him." PW-4 has also stated that thereafter, A-1 was asked to call A-2 again and find out where he was; in second call, A-1 told A-2 that -
"... Ashok Kumar Puri was anxious about his work and asked him where he was at that time and on that accused CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 78 of 123 :: 79 ::
Sharma replied that he was in his office. Thereafter, we proceed to the office of Sh. Sharma, SDM and reached there at about 06:30 or 06:45 PM." PW-4 has stood by his version in his cross-examination. He has stated that on instruction of CBI officials, A-1 had called A-2 twice to inform him that bribe amount of Rs.One lac had been received. 16.1.1 Even PW-6 has deposed that on 22.09.2011 when A-1 (after being caught red handed) was interrogated as to why he had taken the money, A-1 replied that he had taken the money to get the property de-sealed through Sh. Sharma, Tehsildar (A-2). PW-6 has also corroborated that thereafter, as instructed, A-1 Ravi Jatav apprised A-2 (over phone) that he had received Rs.1,00,000/- and asked him where should he bring the money for delivery. PW-6 has stood by the same in his cross-examination. PW-6 was confronted with his statement u/Sec. 161 Cr.PC, Ex.PW6/DA, by A-2, pleading that it is not so recorded there. However, perusal of Ex.PW6/DA reveals that the same is very much stated therein by PW-6, though a little differently. In his statement u/Sec. 161 Cr.PC (Ex.PW6/DA), PW-6 has stated that A-1 told A-2 (over phone) that he shall hand over the amount CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 79 of 123 :: 80 ::
(Rs.One Lac) to him, the next day in the morning. 16.1.2 It may be mentioned that PW-6, however, further deposed that - "on being apprised about Rs.1,00,000/-, A-2 told that he would not do any work of complainant; but, on insistence of A-1, as he had already received Rs.1,00,000/-, the person from the other end stated that - "he would see later what could be done. Again said, the person from the other end also stated that money be returned to the complainant......".
16.1.3 As PW-6 deviated from his earlier statement, he was cross-examined by Ld. Prosecutor. In his cross-
examination by Ld. Prosecutor, PW-6 stated that - "... It is correct that when accused Ravi Jatav called accused Sanjay Sharma at the instance of CBI and apprised him that he had received Rs.1,00,000/-, accused Sanjay Sharma told him to deliver the amount later on. Vol. But he also refused to accept the amount then and there, I cannot admit or deny that on the second call made by accused Ravi Jatav, accused Sanjay Sharma told that he was in the office and told Ravi Jatav to bring the money in the office since I was outside the CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 80 of 123 :: 81 ::
official vehicle at that time."
16.1.4 On this, PW-6 was further cross-examined by Ld. Prosecutor. PW-6 in his further cross-examination admitted that the conversation between A-1 and A-2 was being recorded simultaneously; and that the said recorded conversation between A-1 and A-2 was transferred into a CD by using a laptop, on return to CBI office; and that the said CD was marked Q-3. Pursuant to the said admission, CD-Q3 was played in court and PW-6 was confronted with the said recording.
16.1.4.1 After listening to the same, PW-6 admitted that the said conversation took place between A-1 and A-2 in his presence and even identified the dialogues of A-1 shown as "RJ" and of A-2 shown as "SKS" in the transcript Ex.PW2/G. After listening to the conversation PW-6 admitted that in that conversation A-2 nowhere asked A-1 to return money collected by him from A-1. PW-6 while denying learned Prosecutor's suggestion that out of fear of accused persons, he was not stating the facts correctly, explained that he was confused due to several facts and CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 81 of 123 :: 82 ::
circumstances that transpired at the time of trap and thereafter. The explanation of PW-6 seems quite natural. 16.1.5 PW-9 and PW-10 have also corroborated PW-2's version. PW-10 has deposed that he interrogated A-1 after his being caught red handed and A-1 had told him that bribe was taken at the behest of A-2 for getting complainant's work done. He has also corroborated about calls being made by A-1, at his asking. He has stood by his version in cross-
examination. PW-10 has also explained in cross-examination that since a crowd of people had gathered at the spot, the official vehicles were called at the main road near the shop and accused Ravi Jatav was taken inside the official vehicle, which was then driven to some distance; besides him and accused (A-1),inside the vehicle, one of the public witnesses and Insp. Nikhil Malhotra, were there. But, he again said that probably both of them were inside the vehicle. Even PW-9 stated that accused was taken to the place where vehicles were parked and it was there, he was instructed to call the co- accused Sanjay Sharma; both the independent witnesses were present when said phone calls were made by A-1 to A-2. CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 82 of 123 :: 83 ::
16.1.6 It was argued by learned counsel for A-2 that in his examination in chief, PW-4 stated that calls were made from near the official vehicle of CBI. Whereas, in his cross-
examination he stated that the same were made while sitting inside the official vehicle; PW-2 deposed that calls were made from the shop. Further, PW-4 could not recollect whether PW-6 was present inside the vehicle. Same clearly shows that PW-6 had not heard that telephonic conversation. In view of these discrepancies in the testimonies of PW-2, PW-4 and PW-6, their version of having heard the conversation between A-1 and A-2 is hardly trustworthy.
16.1.7 As already mentioned that PW-2 was not cross- examined about the happenings of 22.09.2011 at his shop and thereafter and about PW-6's presence at the time of calls; and that PW-6 himself has deposed that he heard conversation of both the accused person; and even identified their voices in the recorded conversation (CD Q-3), before the court. In view of the same, the factum of presence of PW-6 cannot be disregarded just because PW-4 could not recollect about PW-6's presence at that time. Moreso, in view of consistency in PW-2 and PW-4's testimony, in material CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 83 of 123 :: 84 ::
particulars.
16.2 It was further argued by learned counsel for A-2 that PW-2 has wrongly identified the voice of A-1 and A-2, although, he was not the witness to conversation made by A-1 with A-2 over phone; and that PW-2 was not even a witness to taking of specimen voice of A-1 and A-2, which is evident from the fact that his name on the recovery memo is handwritten.
Whereas, names of the other witnesses are typed. Same shows that his signatures were obtained subsequently, on an after thought.
16.2.1 Merely because, PW-2's name is handwritten does not necessarily lead to the conclusion that PW-2 was not privy to the conversation between A-1 and A-2. Even if for a while, this argument is accepted, it does not help A-2 much. The fact that in the evening of 22.09.2011, calls were made by A-1 from his mobile no. 9212419597 to A-2 on his mobile no. 9999970724, at 06:39:57 and 06:49:32, of the durations of 32 and 34 seconds, respectively, i.e. at about the same time as deposed by the other witnesses, stood proved by CDRs of A-1's and A-2's mobile numbers, that is, Ex.PW3/E and CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 84 of 123 :: 85 ::
Ex.PW5/B, respectively. It is not the case of A-2 that someone else was using his mobile phone at that time. The contents of the conversation are proved even by oral testimony of independent witnesses PW-4 and PW-6 and CBI officials. In view of the same, it was for A-2 to explain, what were those calls about. But, no explanation has come forth from A-2. 16.2.2 It has also come on record in the testimonies of PW-2, PW-4 and PW-6 that the aforesaid conversation between complainant/ PW-2 and A-1 and between A-1 & A-2, in the aforesaid calls, was transferred to a CD Mark Q-3, Ex.P-7, in their presence; and that the said CD Q3 was then sealed in their presence and signatures of PW-4 and PW-6 were taken on that. PW-2 has also stated that in the same evening, voice sample of A-1 and A-2 was taken in his and the presence of PW-4 and PW-6 and the said CDs were marked as S1 and S2, respectively; and the transripts of the same are Ex.PW2/H-1 and Ex.PW2/H-2, respectively. The fact that sample voice of accused persons was recorded on that day is borne out from the suggestion made (by A-1) to PW-4 in cross-examination;
although, it was suggested that accused were forced to record their conversation under the garb of taking sample voice. CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 85 of 123 :: 86 ::
16.3 It has also come in the testimony of PW-2 that he was called by Insp. Pankaj Vats to CBI office sometimes in April 2012; independent witnesses were also present in CBI office on that day; the recorded conversation in CD Q-3, (Ex.P-7) was played and heard and the transcript of the same was prepared, on which he had put his signatures at point 'A', and which is Ex.PW2/G (colly.). PW-4 and PW-6 have also corroborated the same. PW-4 in his cross-examination by A-2 has denied that conversation recorded in CDs (on 22.09.2011) is fake and tampered and does not contain the voices of A-1 and A-2.
16.4 It may be mentioned that when CD Q3 was played in the court, PW-2 identified his as well as A-1's voice and that of A-1 and A-2 (in phone calls) in the recorded conversation.
On playing the fourth audio file in CD Q-3, PW-2 even pointed out that the said conversation took place between him and A-1 Ravinder Jatav, in his shop, before A-1 was apprehended. He further pointed out their dialogues and dialogues between A-1 and A-2, in the transcript and stated that abbreviation 'C' indicates his dialogues, 'RJ' indicates A-1's dialogues, while 'SKS' indicates A-2's dialogues. PW-2 In his cross-examination CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 86 of 123 :: 87 ::
by A-2, categorically denied that the conversation recorded in CDs Q-2 and Q-3 is fake and does not contain the voice of A-2 and that he has wrongly identified A-2's voice; and the transcript prepared by CBI is not correct. 16.5 The fact that A-1 did not dispute his voice in the said CD Q-3 and rather, in all the recorded conversations, and their contents, has come on record in A-1's own suggestion to PW-4 in cross-examination as discussed above. It was suggested to PW-4 that "....both the accused persons were forced to record their conversation as instructed by the CBI officials in the office of CBI in the garb of taking samples", which was denied by PW-4. In view of the same, the suggestion put to PW-2 by A-1 that he wrongly identified his voice in the CDs, is hardly of any consequence.
Even otherwise, PW-2 categorically denied that he has wrongly identified the voice of A-1. Even PW-6 identified voices of A-1 and A-2 in CD Q-3 and identified their dialogues in transcript Ex.PW2/G (colly), in his cross-examination by learned Prosecutor, as discussed above. 16.6 Further, except making a general suggestion to CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 87 of 123 :: 88 ::
PW-4 that the aforesaid conversations were deceitfully got recorded by CBI under the garb of taking sample, no details as to when, how and under what circumstances, A-1's voice was so recorded, have been placed on record. Nor has A-1 mentioned anything about the steps he took on this revelation. Nothing in this regard has been placed on record. Nor has any explanation come from A-1, as to why did he not lodge any complaint against the concerned CBI officials for such deceitful recording of his voice.
16.7 Thus, except for a bald denial of the contents and authenticity of conversation, no material has been placed on record to show that such conversation was fabricated and manipulated. The accused persons have failed to specifically point out the fabrication/ editing/ manipulation and doctoring in the recorded conversation, placed on record by CBI. A bald denial of the contents of conversation is not adequate to doubt its authenticity. In Jagjit Singh Vs. State of Haryana, AIR 2007 SC 590, the hon'ble Supreme Court observed that simple denial of the allegations in the complaint and authenticity of newspaper report and reporting in electronic media without pointing out as to how and what part of the CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 88 of 123 :: 89 ::
recordings were not genuine, is not sufficient and simply on that basis, the authenticity and accuracy of the electronic evidence cannot be doubted.
16.8 Even the scientific evidence supports the version of PW-2, PW-4 and PW-6, so far as voice of A-1 in one to one conversation with PW-2 (which took place in his shop) and in his telephonic conversation with A-2 recorded in CD Q3, is concerned. PW-7, Sr. Scientific Officer, CFSL vide report Ex.PW7/B opined that on the basis of auditory examination as well as spectrographic analysis, sample voice in CD S1 was found similar to that of A-1 in other direct conversation (made with complainant on 22.09.211) in CD Q3 and depicted in transcript at Q-3 (II) and Q-3 (III). In his testimony, PW-7 categorically stated that the specimen and questioned voice of A-1 were found to be of the same person on the basis of linguistic, phonetic and spectrographic examination. It may be mentioned that Spectogram/ voice prints are like finger prints and are distinctive and unique for each individual and help in speaker identification. With respect to the questioned voice in Q3 (iv)/A and Q3(v)/A (i.e. telephonic conversation), on the basis of auditory examination, PW-7 has opined that the same CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 89 of 123 :: 90 ::
was found similar to the specimen voice CD S-1, (of A-1), in respect of their linguistic and phonetic features; and that the same is the probable voice of A-1, Ravi Jatav. 16.9 It was further argued by Ld. defence counsel for A-1 that the aforesaid report Ex.PW7/B is of no consequence w.r.t. alleged telephonic conversation, in absence of spectrographic analysis. No doubt, spectrographic analysis of A-1's voice could not be carried out with respect to telephonic conversation between A-1 and A-2, for the reasons recorded in the report; and that PW-7 in his cross examination admitted that conclusive opinion can not be given based on auditory examination of voices unless accompanied with voice spectrograph test. But, as already discussed above, there is sufficient oral evidence (vide testimony of PW-2, PW-4, PW-6, PW-9 and PW-10) and other evidence on record vide CDR with respect to telephonic conversation between A-1 and A-2.
CDR, Ex.PW3/E and Ex.PW5/B show that calls were made from A-1's mobile phone to that of A-2's mobile phone around the same time on 22.09.2011. Thus, Voice Examination Report (Ex.PW7/B) further substantiates the witnesses' version, in whose presence the said conversation took place. CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 90 of 123 :: 91 ::
16.10 It was also argued by Ld. counsel for A-2 that tampering of CD Q3, particularly, the alleged telephonic conversation between A-1 & A-2, is evident from the fact that the time duration of the aforesaid calls in audio files of CD Q3 reflected in CFSL report, does not match with the duration of the calls, as per CDR Ex.PW3/E. Further, three audio files 002,003 004 are missing in this CD; but, IO/ PW-11, on being confronted with this fact could not comment about the said missing files. Therefore, CD Q3/ its transcript Ex.PW2/G, is not a reliable piece of evidence.
16.10.1 Perusal of duration of calls in the CDR Ex.PW3/E and in CD, as reflected in Voice Examination Report Ex.PW7/B, show that the timing of the aforesaid phone calls and their duration match, by and large. As per CDR, two calls were made at 18:39:57 (32 seconds) and 18:49:32 (34 seconds).
The duration of the respective audio files of these two phone calls as mentioned in Ex.PW7/B are 42 seconds and 52 seconds, respectively. It may be mentioned that CD Q-3, when played, revealed that the audio recording had started a little before/ at the time, the phone number was actually dialed; it also recorded the ringing of the phone on the other CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 91 of 123 :: 92 ::
end. Whereas, the CDR reflects actual conversation time after the call is connected. The same explains the difference of about 10 seconds/ 18 seconds in the duration of phone calls and the audio files generated.
16.10.2 So far as Ld. counsel's argument about missing audio files 002, 003 and 004 in CD Q-3 is concerned, as already discussed in detail in paras 12.11 and 12.11.1 above , the same does not by itself lead to the conclusion that the conversation in CD Q-3 is tampered with. In view of the same, the recorded conversation in CD Q-3 cannot be thrown away, as pleaded by learned defence counsel. Moreso, in the light of voice examination report, Ex.PW7/B and the testimony of PW-7 that the conversation in CDs is not tampered. 17.0 In view of the above evidence, conversation in CD Q-3 is referred to. Relevant portion of the same as reflected in transcript Ex.PW2/G, is reproduced here:
Q-3 (iii) "RJ: Meri baat suno -
C: haan:
RJ: aap ka kaam jo hai unka koi
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jisne hamara kaam karna hai.
C: haan.
RJ : Aap ka ..... jisne hamara kaam
karna hai
RJ: kisi ki death ho gai hai.
C: acha.
RJ: vo gaye hai Palwal.
C: acha
...
RJ: parso ayega vo uske ghar deke
aunga, apka Monday se meter down
ho jayega.
C: acha.
RJ: 25 din ki main guarantee leta
hun.
...
RJ: Aur vahi admi kholenge jo kar ke
gaye hain.
...
RJ: kisi ko zyada mat bolo.
..
RJ: ki apne kisi ko kaam de diya hai
ki nahi diya hai.
...........
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RJ: aise bande hote hain.
C: ab kitne kitne dene hain.
RJ: ek peti deni hai ji, vahan ek peti
jayegi.
....
C: 22 tarikh hai, 25 Monday, 26-26
se kam shuru ho jana chahiye....
diwali pe dukan khul jaye yaar.
RJ: haan haan ho jayeega.... kab ki
ha..diwali kab ki hai.
....
C: ginti aap maro bhai sahab paise
ka mamla hai, bura na mano mai
paise ke mamle me main kisi pe
vishwas nai karta mai apko vo
vali baat hai, baki paise de raha
hu..dickey mein pade hain.
..
C: de raha hun, dickey me chote note
hain, jeb me leke ghumunga."
17.1 Let me now reproduce the relevant portion of the
telephonic conversation between A-1 and A-2, recorded in CD Q-3 and reflected in transcript (ExPW2/G) at Q-3 (iv) and Q-3 (2nd call):-
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Q3 (iv) - 1st call
"SKS:Hello
RJ: Sharma Ji Namaskar.
SKS: Namaskar Ji.
RJ: Vo le liye the payment maine 1
lakh rupee.
SKS: Acha.
RJ: To kal de dunga apko subah.
SKS: Haan koi baat nahi.
RJ: Acha mai ye keh raha tha kaam to
ho jayega na uska.
SKS: Try marte hain.
RJ: Theek hai-theek hai, sir theek hai.
SKS: Most probably to hona chahiye.
RJ: haan haan sahi baat hai...theek hai.
SKS: ...
RJ: Theek hai.
Q-3 (2nd Call)
SKS: Helo.
RJ: Haan kahan par ho.
SKS: Batao office mein hun abhi to nikal raha hun.
RJ: ..Acha - acha main aa raha CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 95 of 123 :: 96 ::
hun...do minute sharma ji ..hain.
SKS: Kya ho gaya.
RJ: Vo kuch nahi Puri yeh keh raha hai....
ke vo 3rd floor tak hi hoyegi na ye vaise bhi...baar - baar ...pareshan kar raha hai.
SKS: Arey usko vapis chhod aa....
RJ: Hmmm..
SKS: Vapis chhod aa... ye dikkat
rakhega main bataun...
RJ: Chalo theek hai...main ata hun apke
paas, aata hun abhi.
SKS: Aa Jao, main yahi par hun office me."
17.2 The above conversation is relevant to the matter in issue and is clearly audible. Voices in the conversation have been duly identified by the witnesses. The questioned voice of A-1 in one to one conversation with PW-2 in his shop in portion Q-3 (iii), even matched his sample voice (S-1), on the basis of auditory and spectographic analysis. The fact that the recorded conversation is authentic and not tampered with, has come on record vide Ex.PW7/B and testimony of PW-7. Therefore, the recorded conversation is admissible in evidence CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 96 of 123 :: 97 ::
17.2.1 The above recorded conversation further corroborates the oral testimonies of witnesses PW-2, PW-4 and PW-6 and CBI officials - PW-9 and PW-10.
17.3 Learned counsel for A-2 argued that from the above conversation, it is evident that he had nothing to with the complainant's work. It has come in that conversation that the person who had to do the complainant's work was away to Palwal. Whereas, as per CBI he( A-2) was very much in his office, on 22.09.2011. The careful reading of the transcript in the backdrop of the facts of the case, reveals that A-1 was communicating that the person through whom the work (desealing) of the complainant/ PW-2 was to be got done( by A-2), was away to Palwal on account of somebody's death;
and that he was to return a day after.
18.0 Ld. defence counsel for A-2 also argued that the independent witnesses were not conversant with A-2's voice and even PW-2, could not have identified the voice of A-2 on listening to the CD in the court. He further argued that the opinion of Expert was not sought with respect to presence of A-2's voice in CD Q3; this fact itself shows that the CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 97 of 123 :: 98 ::
prosecution did not even suspect A-2's voice in the conversation contained in CD Q3. Thus, the alleged tape recorded telephonic conversation between A-1 and A-2, cannot be looked into. In this regard, Ld. counsel placed reliance upon the judgment of Hon'ble Supreme Court in Nilesh Dinkar Paradkar Vs. State of Maharashtra, (2011) 4 SCC 143 and the judgments of Hon'ble Delhi High Court, dated 03.05.2013 in S. K. Singhal Vs. CBI Crl.
Appeal No. 577/2002 and Judgment dated 22.07.2013 in Crl. Appeal. No. 45/2003 titled as Niranjan Singh Vs. CBI, in support.
18.1 As already noted above that the aforesaid telephonic conversation was made by A-1 by calling from his mobile phone no. 9210025495, on the mobile phone of A-2 9999970724; these mobile numbers have been proved. Further, it is not the case of A-2 that his mobile phone was with someone else or was being used by someone, at that time. Further, the aforesaid calls were made by A-1 to A-2, in the presence of witnesses/ CBI officials, with A-1's mobile phone on speaker mode; and the actual conversation between A-1 and A-2 was heard by the witnesses and has CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 98 of 123 :: 99 ::
been proved vide their oral testimony, as already discussed in detail above. The complainant as well as independent witness PW-6 even identified the voice of the accused persons in the said telephonic conversation; it is A-2's own defence that complainant was acquainted with him and that he had threatened A-2 to teach him a lesson Thus, PW-2 being acquainted with A-2 could have identified his voice. The fact that there is no tampering with the recorded conversation has been proved by PW-7/ Voice Examination Report, Ex.PW7/B. 18.2 In view of the same, I find no force in Ld. counsel's argument that PW-2 could not have identified A-2's voice in the court. So far as PW-6 is concerned, as pleaded, no doubt, he admitted in his cross-examination that he had not heard the voice of A-2 prior to the day of trap. Same by itself is no ground for rejection of his testimony about identification.
Particularly, in the light of other evidence which has come on record.
18.3 However, it is noted that the Expert opinion was not sought about the voice of A-2 in the conversation CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 99 of 123 :: 100 ::
recorded in CD Q3. This appears to be negligence on the part of Investigating Officer. However, in view of the above evidence on record, absence of expert's opinion about identification of A-2's voice in the said telephone calls, is not of much significance.
18.4 So far as, the judgments in Nilesh Dinkar's case and in S. K. Singhal's case (supra), are concerned, the same are of no assistance to A-2 Sanjay Kumar Sharma. The facts in those cases were very distinct. Nilesh Dinkar's case (supra) was under MCOCA and in that case except for voice identification, there was no material on record to connect the accused with the mobile number allegedly used by him;
mobile number could not be proved to be that of the accused; and no evidence that the accused was using the said number, was placed on record; further, the prosecution failed to even produce any evidence from the operators with regard to the registration of the phone number.
18.5 In S. K. Singhal's case (supra), the accused was convicted by the trial court under Sections 7 and Section 13 (I) (d) read with Section 13 (2) PC Act. Whereas, in the instant CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 100 of 123 :: 101 ::
case A-2 is charged under Section 8 PC Act and for conspiracy under Section Section 120 B. Further, the Hon'ble High Court in that case, taking into account that Section 13(1)(d) required proof of "obtainment"/ acceptance of bribe amount, gave benefit of doubt to the accused, in view of inconsistency regarding the recovery of money and the link evidence. The hon'ble Court noted that there were inconsistencies in the testimony of the witnesses, as to who recovered the money and from where it was recovered, that is, from the appellant or from the ground; there was further inconsistency in the testimony of the complainant and the independent witness with respect to proof of GC notes, regarding hand wash after the trap and even it was not clear as to who arranged for the trap money and, what happened to the amount, which was treated on the previous day. Further, although Memo mentioned that the labels on bottles of hand wash were signed whereas, the CFSL report did not say so; even signed cloth wrapper were not available. Whereas, situation in the instant case is very different, as already discussed above. 18.6 Even the facts in Niranjan Singh's case are distinguishable and therefore,the said judgment also, is of no CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 101 of 123 :: 102 ::
assistance to the accused. In that case, the complainant was not conversant with the voice of the appellant, having met him only once prior to the incident; and the appellant's voice sample was not taken and sent to CFSL for analysis; further, there was no evidence on record to prove that the tape recorded conversation was not interpolated and was intact. In view of the same, the hon'ble court observed that the tape recorded conversation could not have been looked into in evidence merely on the basis of identification of the complainant. In the instant case, as already mentioned above, the telephonic conversation between A-1 and A-2, took place on their mobile numbers, which have been proved; the calls have been proved vide CDR; PW-2, who was acquainted with A-2, identified the voice of A-2 in the aforesaid conversation; the conversation, even otherwise, has been proved by independent witness, in whose presence it was made.
19.0 Thus, in view of the facts and circumstances of the present case and considering the above evidence, which has come on record, no such defect, so as to render the recorded conversation (CD Q-3 - Ex.P-7) inadmissible in evidence, has CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 102 of 123 :: 103 ::
been demonstrated by the accused persons. Even if for a while, learned defence counsel's argument is accepted and the conversation recorded in CD Q-3 is ignored, still from the oral testimonies of PW-2, PW-4, PW-6, PW-9 and PW-10 and other evidence on record viz. CDRs, washes- LHW, RHW and BSPPW turning pink (which has not been disputed by A-1), it is established that A-1 accepted Rs.25000/- from PW-2 at his shop; he was caught red handed; A-1 even informed A-2 about acceptance of the said amount and also told him that the amount would be delivered to him (A-2), the next day; and subsequently A-2 agreed to wait for A-1 in his office.
20.0 Learned counsel for A-2 also argued that much has been made out by prosecution about A-2's presence in his office at that late hour. It was submitted that there was nothing unusual about A-2's presence in his office at late hours in the evening on 22.09.2011, when CBI visited. Being Tehsildar, A-2 was handling many schemes/ assignments and used to sit late in office. It may be mentioned that the conversation [Q-3 2nd call- transcript Ex.PW2/G] as reproduced above, reveals that A-2 was leaving the office when A-1 called him up. But, on A-1 informing him that he CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 103 of 123 :: 104 ::
was reaching his office, A-2 agreed to wait. A-2's presence in his office, in the backdrop of this conversation, certainly points towards his complicity in the matter.
21.0 Learned counsel for A-2 also argued that no permission of the court was sought for taking the specimen voice of the accused; the same could not have been therefore, used for comparison, with questioned voice. Thus, Voice Expert's report (Ex.PW7/B) based on such voice samples, is inadmissible in evidence. Reliance in this regard is placed upon judgment dated 7th December, 2012 of hon'ble Supreme Court in Crl. Appeal No. 2003/2012 titled as Ritesh Sinha Vs. State of UP.
21.1 It may be mentioned that in Ritesh Sinha's case (supra), being of divergent opinion, two Hon'ble Judges of the Supreme Court referred to larger bench, the issue whether the accused can be compelled to give his voice sample/ specimen voice. But, significantly both the Hon'ble Judges concurred that taking of voice sample of the accused by police during investigation is not hit by Article 20(3) of Constitution. Hon'ble Ms. Justice Ranjana Desai (in Para-13 CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 104 of 123 :: 105 ::
of her Judgment) while noting that 11 Judges' Bench of this Court in State of Maharashtra v. Kathi Kalu Oghar (1980) 2 SCC 34, was alive to the fact that the investigating agencies cannot be denied their legitimate power to investigate a case properly and on a proper analysis of relevant provisions, it gave a restricted meaning to the term "To be a witness". She then made reference to the following observations made in Kathi Kalus' case:
"To be a witness may be equivalent to furnishing evidence in the sense of making oral or written statements. But, not in the larger sense of the expression, so as to include giving thumb impression or impression of palm or foot or fingers or specimen writing or exposing a part of the body by accused for the purpose of identification. Furnishing evidence in the latter sense could not have been within the contemplation of the Constitution makers for the simple reason that - though they may have intended to protect an accused person from the hazards of self- incrimination, in the light of English Law on the subject, but they could not have intended to put obstacles in the way of efficient and effective investigation into CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 105 of 123 :: 106 ::
crime and of bringing criminals to justice. The taking of impressions of parts of the body of an accused person very often becomes necessary to help the investigation of crime. It is as much necessary to protect the accused person against being compelled to incriminate himself, as to arm the agents of law and the law courts with legitimate powers to bring offenders to justice..."
22.0 It may be mentioned that Hon'ble Justice Ranjana Desai in Ritesh Sinha's case, also observed that identification of the voice is pre-condition for admission of tape recorded conversation in evidence (R.M. Malkani). Since Section 54A of the Code uses the words direct the person so arrested to subject himself to identification by any person or persons in such manner as the court may deem fit, voice sample can be identified by means of voice identification parade under Section 54A or by some other person familiar with the voice. Hon'ble Justice Desai in this regard drew support from Nilesh Paradkar's case (supra) and Mohan Singh Vs State of Biahar (2011) 9 SCC 272.
22.1 It would be pertinent to mention here that the CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 106 of 123 :: 107 ::
issue whether CBI had the power to take specimen signatures and handwriting of accused (A-3) for examination by expert; and whether taking of such sample would amount to asking him to be "a witness against himself" would be violative of prosecution provided under Article 20(3) of the Constitution, was considered by the hon'ble Supreme Court, in judgment dated 21.01.2011 in Criminal Appeal No. 1259 of 2007 titled as Rabindra Kumar Pal @ Dara Singh v. Republic of India). Hon'ble Court noted that the same was not violative of Article 20 (3) of the Constitution of India.
22.2 In view of the above, voice examination report, Ex.PW7/B, cannot be thrown away, just because the prior permission of the court was not sought by CBI, for taking voice sample of the accused persons.
23.0 Learned counsel for A-2 also argued that the DVR, in which the conversation was recorded was not seized and sent to CFSL for examination. Rather, the conversation was transferred to CDs, which are only the secondary evidence; and the same cannot be admitted in evidence. Suffice it to state that for admissibility of a tape recorded conversation in CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 107 of 123 :: 108 ::
evidence, what is to be ensured is its relevancy, accuracy, authenticity and due identification of the voice. These criteria have been duly met in the instant case, as discussed in detail above. Therefore, merely because the DVR was not seized and sent to CFSL, does not render the recorded conversation in CDs (Q-1, Q-2 and Q-3), inadmissible. In view of the same, the judgment of Hon'ble Delhi High Court in - R.K. Anand's case, relied upon by the accused, is of no assistance to him. It may be mentioned that the said case pertained to the video recordings made during a sting operation carried out by NDTV and which were telecast. Rather, it was observed by the hon'ble Court in that case, that the crux of the matter really lies in the authenticity of the programme telecast on NDTV. In the instant case, the authenticity of the conversation has been established vide oral testimony of the witness, CDR and other material on record, besides Voice Expert's (PW-7) opinion.
24.0 A-2 Sanjay Kumar Sharma also took the defence that he has been falsely implicated by the complainant out of vengeance. It was submitted that the shop M/s Poonam Shoes of the complainant and his brother Sh. Anil Puri was CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 108 of 123 :: 109 ::
raided on 15.12.2010; and from where one child/ bonded labour was rescued; on the recommendation of SDM/ his office, a case was registered and Sh. Anil Puri, brother of the complainant was arrested and charge-sheeted; he was one of the active members of the raiding party and the said matter in SDM office was processed by him; the complainant and his family members had approached him, to seek favour; but, he did not oblige them; the complainant nursed a grudge against him and had threatened to teach a lesson to him (A-2). 24.1 A-2 produced three witnesses in support of his defence. DW-2 Sandeep Kadyan produced the record pertaining to raid conducted by District Task Force against child labour and bonded labour, in the Nabi Karim Area under Pahar Ganj Sub- Division on 15.12.2010. In his cross-
examination, he could not tell the names of the raiding party. However, vide testimony of DW-1 SI Rajpal Singh, it has come on record that during the investigation of Ex.DW1/A, FIR under Sections 370/374/342/34 IPC, 23/26 Juvenile Justice Act and Section 3 Child Labour (Prohibition & Regulation) Act 1986, Anil Puri, brother of the complainant/ PW-2 was arrested on 15.12.2010.
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24.1.1 DW-3 Sh. Radhey Shyam, who was posted as SDM, Sub-Division Pahar Ganj, District Center, with whom A-2 was working as Tehsildar in the year 2010, has deposed that A-2 was also part of the raiding team, which conducted raid on 15.12.2010 under his supervision. He also stated that during this raid, one child labour Vikas was rescued from a shoe shop, and the statement of the said child was recorded by A-2. It is noteworthy, in his cross-examination, DW-3 could not tell whether A-2 was supervising any of the raiding teams, constituted on 15.12.2010. Further, although in his examination-in-chief DW-3 stated that he had come to know from his staff that some arguments had taken place between the employer of the rescued child Vikas and Tehsildar A-2 Sanjay Kumar Sharma. But, he did not specify the name or the designation of the staff member, from whom he came to know about the same. Neither did he give any specific details of such arguments. Rather, in his cross-examination, when it was put to him by the learned Prosecutor that no such argument had taken place, he simply stated that he did not remember. In view of the same, the testimony of DW-3 in this respect, does not inspire any confidence.
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24.2 It is worthwhile to note here that although, A-2 has pleaded that the complainant and his family members approached him to seek the favour, but he did not oblige them. On which, the complainant had threatened to teach him a lesson. But, no such suggestion was put to PW-2 in his cross-examination. It is also interesting to note that A-1, during arguments on charge, pleaded that he as well as A-2 have been falsely implicated by the complainant, because father-in-law of the complainant had sold a flat at Mayur Vihar to A-2 and some differences on that account arose between the complainant and A-2.
24.3 In view of the above, nothing could be brought on record by A-2 to demonstrate that the complainant (PW-2) has falsely implicated him. Be that as it may. Even if for a while, the argument of A-2 is accepted that he has been trapped, because PW-2 had enmity against him, it remains, that the charge against A-2 has otherwise been established.
The existence of any enmity does not upset the said findings. 25.0 Learned counsel for A-2 also argued that A-2 had nothing to do with de-sealing of property. Further, the name CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 111 of 123 :: 112 ::
of the official/ public servant through whom, the de-sealing of the said property was to be got done, is not disclosed. Therefore, Section 8 has no applicability. Let me refer here to Section 8 PC Act, which reads as under:
"8. Taking gratification, in order, by corrupt or illegal means, to influence public servant. - Whoever accepts or obtains, or agrees to accept, or attempts to obtain, from any person, for himself or for any other person, any gratification whatever as a motive or reward for inducing, by corrupt or illegal means, any public servant, whether named or otherwise, to do or to forbear to do any official act, or in the exercise of the official functions of such public servant to show favour or disfavour to any person, or to render or attempt to render any service or disservice to any person with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 112 of 123 :: 113 ::
five years and shall also be liable to fine".
25.1 From the plain reading of Section 8, it is evident that who ever accepts or obtains or "agrees to accept", for himself or for any other person, any gratification as a motive or reward for inducing by corrupt or illegal means, any public servant to do or to forebear to do any official act, shall be punishable under this provision. The public servant (who has to do/ forbear from doing, the official act) may not even be named. In Judgment dated 01.06.1987 titled as Deven Alias Vasudevan & etc. Vs. The State, 1988 Crl. L.J. 1005, hon'ble Kerala High Court held that it is not even necessary that the public servant should actually have been induced and should have actually acted in the improper manner, pursuant to influence. Such animus/ intention to induce, can be inferred from the evidence in each case. 25.2 From the above facts and circumstances and the evidence which has been on record, it is established that A1 assured the complainant to get the said property de sealed through contacts of A2. For the said work, A1 demanded Rs.3 lacs and settled at Rs.2.25 lacs. A1 arranged a meeting CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 113 of 123 :: 114 ::
between complainant and A2; A1 had accompanied the complainant for the said meeting with A2. Thereafter, A1 even accepted a part bribe amount of Rs.25,000/- from the complainant. After collecting the said bribe amount, A1 even informed A2 about the same and told him that he shall deliver it later/ the next day. A2, in response told A1 that it was OK. Subsequently, at A1's request, A-2 even waited in his office for A-1. These facts and circumstances demonstrate active and conscious meeting of minds between A1 & A2 and A-2's clear participation with A-1, in obtaining gratification for complainant's work of desealing. Thus, conspiracy between both the accused persons stands proved, beyond reasonable doubt.
25.3 Section 8 is complimentary to section 7 of PC Act.
It is intended primarily to deter any member of the public from offering any gratification for inducing a public servant, to do or forbear to do any official act. As this provision is intended to reach the aiders and abettors of the offence, it therefore, extends to all persons whether or not they are public servants. Ld. counsel argued that section 8 is not applicable to A-2. No doubt, a public servant receiving/ CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 114 of 123 :: 115 ::
agreeing to receive gratification for inducing other public servant by corrupt means, should preferably be punished under section 7. But, there is no express bar to cover such a public servant, under Section 8 PC Act.
25.4 It was vehemently argued by learned defence counsel that there is not even a hint in the entire charge-
sheet about the public servant, who was to do the de-sealing work. As already discussed above, as per Section 8 PC Act, such public servant may not necessarily be named. But, it has come on record that work of de-sealing of PW-2 was pending with MCD. A-1 boasted of his connections in MCD. The inkling in that regard has come in the testimony of PW-2; PW-2 deposed that A-1 Ravinder Kumar Jatav, in order to impress him, showed him a piece of paper on which the name of the then Commissioner, MCD, Sh. K. S. Mehra was written alongwith his mobile number; A-1 even asked him, if he wanted to speak to the Commissioner. No doubt, this fact was not found recorded in PW-2's statement under Section 161 Cr.PC, Ex.PW2/B, when confronted with the same, in his cross- examination by A-2. But, it is noteworthy that in conversation recorded in CD Q-2, A1 was heard telling/ showing to the CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 115 of 123 :: 116 ::
complainant, the phone number of Commissioner, MCD and boasted that he could directly talk to the Commissioner. This clearly indicates that A-1 tried to impress the complainant with their connections in MCD. A-2 in the telephonic conversation with A-1 (CD Q-3), told him that most probably, he would be able to get the complainant's work done, stating "try marte hain... most probably to hona chahiye". 25.4.1 It has also come on record that A-1 even told PW-2 that in the past also, he has been able to get 2 - 3 properties de-sealed through the connections of A-2. 26.0 In view of the above, it is proved beyond reasonable doubt that pursuant to the conspiracy between them (A-1 and A-2), A-1 received from complainant, a part bribe amount of Rs.25000/- for and on behalf of A-2, for getting the said property de-sealed through the links of A-2.
Thus, the charge of conspiracy and of the offence punishable - under Section 8 PC Act against the accused persons, stand proved.
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A-2 Sanjay Kumar Sharma, are accordingly convicted under Section 120-B IPC read with Section 8 PC Act and also for substantive offence under Section 8 PC Act. Announced in the open Court on this 22nd February, 2014. (POONAM A. BAMBA) Special Judge (PC Act):
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IN THE COURT OF MS. POONAM A. BAMBA:
SPECIAL JUDGE (PC ACT) : CBI - 03 :
NEW DELHI DISTRICT : PATIALA HOUSE COURT :
NEW DELHI In re :
CC No. 09/12 Case ID No. 02403R0041922012 RC No. 18A/2011/ACB/CBI/NEW DELHI u/Sec. 120B IPC r/w Sec. 8 of PC Act STATE (CBI) VS
1. Ravinder Kumar @ Ravi Jatav S/o Sh. Totta Ram R/o 9475, First Floor, Gali No. 11, Multani Dhanda, Paharganj, New Delhi
2. Sanjay Kumar Sharma S/o Sh. Ram Avtar Sharma R/o 185, Akash Darshan Apartment, Mayur Vihar Phase-I, Delhi-91.
Permanent Address:
Village Kachrot, P.O. Bhadkaun, Distt. Bulandsher, U.P. 245403 Date of pronouncement of Judgment :22.02.2014 Date of Order on Sentence :24.02.2014 ORDER ON SENTENCE :
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1.0 The convicts have been found guilty of offences punishable under Section 120-B IPC read with Section 8 PC Act and for substantive offence punishable under Section 8 PC Act.
2.0 I have heard learned Sr. PP Sh. S.C. Sharma as well as Sh. R.C. Chopra and Sh. P.S. Singhal, Advocates for convicts Ravinder Kumar Jatav and Sanjay Kumar Sharma, respectively. I have also perused the record carefully. 3.0 It was submitted on behalf of convict Ravinder Kumar @ Ravi Jatav that he is 41 years of age and has no previous involvement in any criminal case. He is married having two school going children aged about eight years and fourteen years; he has to look after his family including his eighty years old ailing mother, who is dependent upon him. There is no other male member in the family. It is also submitted that the convict has taken a housing loan of Rs.20 Lacs from Nainital Bank and has been repaying the same in monthly installments of Rs.
23,000/-.
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3.1 On behalf of convict/ public servant Sanjay Kumar Sharma also, similar submissions are made viz.
that he has never been involved in any offence other than the present case; he is the sole bread earner of the family consisting of his seventy years old father, sixty five years old mother, his wife and two children aged about fourteen years and eleven years. It was further submitted that he has been implicated in this case by the complainant due to enmity.
3.2 Both the convicts submitted that in view of the above facts, a lenient view be taken and minimum punishment as prescribed, be awarded.
4.0 On the other hand, learned Sr. PP submitted that the convicts deserve no leniency. He prayed that maximum punishment as prescribed by law should be awarded to the convicts, to send a signal to the society that corruption cannot be tolerated.
5.0 I have given my thoughtful consideration to the CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 120 of 123 :: 121 ::
submissions made by both the sides. It may be mentioned that the economic offences constitute a class apart and involve persons belonging to respectable section of the society. Hon'ble Delhi High Court in Mukesh Jain Vs. CBI, 2010 AD (Delhi) 443 noted that any sympathy to such offenders would not only be entirely misplaced, but also against the larger interest of the society. The hon'ble Court further observed that a strong message needs to be conveyed to such white collared criminals and also to those, who are waiting in wings, that, in the long run, it does not pay to be on the wrong side of law.
6.0 Taking into account the facts & circumstances of this case in entirety, the settled position of law and the mitigating factors, referred to by the convicts viz. their clean antecedents, their roots in society, they being family persons, age of the convicts etc., I am of the considered opinion that the imprisonment of three years and fine of Rs.25,000/- for each offence shall meet the ends of justice. 7.0 Both the convicts are thus sentenced to CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 121 of 123 :: 122 ::
undergo rigorous imprisonment for a period of three years u/Sec. 120 B IPC read with Section 8 PC Act; and they shall pay a fine of Rs.25,000/- (Rs. Twenty Five Thousand) each; and in default, to undergo SI for a period of three months.
7.1 Both the convicts are also sentenced to undergo rigorous imprisonment for a period of three years under Section 8 PC Act; and they shall also pay a fine of Rs.25,000/- (Rs. Twenty Five Thousand) each; and in default, to undergo SI for a period of three months.
The above sentences shall run concurrently. Benefit of Section 428 Cr.PC be given to the convicts.
8.0 Copy of the judgment dated 22.02.2014 as well as order on sentence passed today be supplied to the convicts free of cost.
9.0 Personal bonds and surety bonds of the CC No. 09/12 : RC No. 8A/2011/ACB/CBI/ND CBI Vs. Ravinder Kumar @ Ravi Jatav etc. Page No. 122 of 123 :: 123 ::
convicts are hereby cancelled and endorsement, if any, on their documents/ FDRs, be cancelled and the same may be released to them.
File be consigned to Record Room.
Announced in the open Court on this 24th February, 2014 (POONAM A. BAMBA) Special Judge (PC Act):
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