Delhi District Court
Judgment Of Hon'Ble High Court In Ramjas ... vs . on 11 July, 2023
IN THE COURT OF MS. SUNENA SHARMA,
SPL. JUDGE CBI-01 (PC ACT),
ROUSE AVENUE COURT: NEW DELHI
In the matter of :
RC no. 22(A)/2018
CC no. 179/2019
CNR no. DLCT01-000873-2019
U/s 7 & 13(2) read with Section13(1)(d) of PC
Act, 1988
CBI
v.
Baljeet Singh Rathi,
S/o Sh. Sukh Lal,
R/o Village: Asanda,
Post Office: Sapla,
District: Jhajjar, Haryana.
....Accused
Date of Institution : 20.7.2018
Final arguments concluded on: 07.7.2023
Judgment pronounced on : 11.7.2023
Judgment
1. This case is emanating from the chargesheet of
FIR/RC No.DAI-2018-A-0022 dated 19.7.2018 registered
under Section 7 & 13(2) read with Section13(1)(d) of PC Act,
1988. The case was registered on the basis of a complaint
dated 18.07.2018 filed by two brothers namely Ravi and
Sachin Kumar, R/o House No. 383/1, Than Singh Nagar,
Anand Parbat, New Delhi-110005.
Chargesheet
2. As per chargesheet, the complaint dated
18.07.2018 was filed with the allegation that during
construction of a boundary wall on their land ad-measuring
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167 square yards part of Khasra No. 344, Anand Parbat, New
Delhi, accused Baljeet Singh Rathi, Kanoongo/DDA, visited
the site and demanded bribe and further threatened them
that otherwise he would not allow them to raise construction.
On 31.5.2018, accused also got the construction demolished.
In the first week of July, 2018, accused again met the
complainants and demanded bribe of Rs. 10 lakhs, which led
to filing of aforementioned complaint dated 18.7.2018 before
SP, CBI, ACB, Delhi, which was marked to Inspector C.M.S.
Negi for verification.
2.01 In order to verify the allegations, Inspector
C.M.S.Negi secured the presence of one independent witness
Sh. Akshay Jain, arranged a DVR, a new memory card for the
purpose of recording the likely conversation. Thereafter, the
verifying officer C.M.S. Negi alongwith above mentioned
independent witness and the complainants went to the office
of J.K. Properties, located at Gali No. 10, near old police
station Anand Parbat, New Delhi where conversation between
the accused and the complainants were recorded in a new
and blank memory card which corroborated the version of the
complainants as the conversation confirmed the demand of
Rs. 8 lakhs as bribe by accused Baljeet Singh Rathi,
Kanoongo/DDA which was reduced to Rs. 7 lakhs and finally
negotiated to Rs. 6 lakhs out of which complainant was asked
to pay Rs. 4 lakhs on 19.7.2018, but complainant Ravi told
the accused that they would arrange only Rs. 2 lakhs by
19.7.2018. Subsequently, on the recommendation of
Verifying Officer, present FIR under Section 7 of PC act, 1988
got registered against accused Baljeet Singh Rathi and same
was assigned to Inspector H.V. Attri for investigation.
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Accordingly, a trap team was constituted by Inspector Attri
for laying a trap on the accused.
2.02 The team was comprised of Inspector H.V.
Attri, other officers and supporting staff from CBI, both the
complainants and independent witnesses Akshay Jain and
Mukesh Rawat. The team members were formally introduced
to each other and purpose of laying the trap on the accused
was explained to all the team members. During pre-trap
proceedings, complainant Sachin Kumar produced a sum of
Rs. 2 lakhs, denomination of which were recorded in handing-
over memo dated 19.7.2018. The GC notes were smeared
with phenolphthalein powder. Demonstration of reaction of
phenolphthalein with solution of Sodium Carbonate and water
was given and its significance was explained. The trap
money was kept in the right side front pocket of the jeans
pant worn by the complainant Sachin Kumar. A handing-over
memo incorporating details of pre-trap proceedings was
prepared. The pre-trap proceedings concluded at around
14:30 hours on 19.7.2018.
2.03 Thereafter, the trap team left CBI office and at
about 15:12 hours, the complainant Sachin Kumar made a
telephonic call to the accused to ascertain his whereabouts
and he was asked by accused to come to Industrial Area,
Anand Parbat within half an hour but complainant asked the
accused to meet him in the office of J.K. Properties situated
near Old Anand Parbat Police Station, New Delhi. Thereafter,
on the way, the complainants alongwith independent
witnesses Mukesh Rawat and SI Umesh Kaushik boarded in
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the personal car of complainant and left for the spot. At
around 15:55 hours, the entire trap team in their respective
vehicles reached industrial area, Anand Parbat, New Delhi.
The DVR containing new and blank memory card was handed
over to the complainant Sachin Kumar in recording mode to
record the conversation likely to take place with the accused.
2.04 The complainant Sachin Kumar was directed to
meet the accused and handover the bribe amount only on his
specific demand. Complainants were further instructed to
give pre-decided signal after the transaction of bribe was
over. Apprehending that accused may feel reluctant to
demand or accept bribe in presence of an unknown person,
the shadow witness Mukesh Rawat was asked to stay back
outside the office with the other members of trap team, and
only the complainants went inside the office of J.K.
Properties.
2.05 The accused Baljeet Singh Rathi came on a
motorcycle and entered in the office of J.K Properties. After
sometime, the complainant Sachin Kumar came out from the
office and gave pre-decided signal to the trap team and
pursuant thereto, the TLO alongwith team members rushed
inside the office of J.K. Properties and found the accused and
complainant Ravi sitting on the sofa place in that office. The
accused was challenged by the TLO to have accepted the
bribe amount upon which accused got perplexed and
accepted that he had taken Rs.2 lakhs from complainant
Sachin Kumar. He was caught hold with both his hands. The
complainant Sachin Kumar was asked to narrate the
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sequence of events. He told that accused demanded and
accepted the bribe amount of Rs. 2 lakhs from him with his
right hand and after transferring the same in his left hand,
kept the same in his left side front pocket of the pant worn by
him and complainant Ravi also confirmed the same.
2.06 Thereafter, the tainted money was recovered
by Sh. Akshay Jain independent witness from the left side
front pocket of the pant worn by the accused. The numbers
and denominations of the GC notes were tallied with the
numbers and denominations mentioned in the handing-over
memo. The trap money of Rs. 2 lakhs was seized and sealed
with CBI seal. The wash of both the hands of accused and
pant pocket washes of the accused were taken separately in
freshly prepared solution of sodium carbonate with water,
which all turned pink thereby indicating that tainted bribe
amount was touched by accused with hands and same was
put in his pant pocket. These washes were separately sealed
and seized after transferring the same in separate clean glass
bottles. The pant of the accused was also sealed and seized.
A rough site plan indicating the positions of trap team
members at the time of trap was prepared.
2.07 The accused was asked to give his specimen
voice for which he agreed voluntarily and the same was
recorded in a new blank memory card after ensuring its
blankness with recording the introductory and concluding
voice of both the independent witnesses. Said memory card
was taken out from the DVR and marked as 'S-1 of accused'
and it was signed by both the independent witnesses and the
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TLO. Specimen voice of both the complainants were also
similarly taken in a new blank memory card and same was
marked as 'S-2 of Sachin Kumar and Ravi' and was signed by
both the independent witnesses, complainants and the TLO.
2.08 Copy of the memory card containing
conversation recorded during trap proceedings was prepared
and thereafter, the memory card was kept in plastic cover
packing and marked as Q-2 which was then kept in original
paper packing, then in a brown envelope and they all were
signed by both the independent witnesses and the TLO. DVR
was also kept in a brown envelope marked as DVR after
getting it signed from both the independent witnesses and
TLO and same was sealed with the CBI brass seal.
2.09 Recovery memo regarding all above
proceedings was prepared by TLO and exhibits were taken in
police possession. On 24.7.2018, sealed bottles containing
the hands wash and pant pocket wash of the accused were
sent to CFSL, New Delhi on for examination. Vide letter no.
CFSL-2018/C-807 dated 31.7.2018, CFSL gave positive
tests/report about the presence of phenolphthalein powder in
the aforesaid washes. The transcriptions of Q-1 and Q-2 were
prepared vide voice-identification-cum-transcription memo
dated 30.7.2018. The specimen voice of the accused and
both the complainants Ravi and Sachin alongwith questioned
voice in recorded conversation in the memory cards Ex. Q-1,
Q-2, S-1 and S-2 were also sent to CFSL New Delhi on
31.7.2018 for comparison. Vide letter no. 2018/P-831 dated
10.9.2018, CFSL gave its opinion that the questioned voice
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and specimen voice are the probable voice of the accused.
Besides that, both the complainants have also identified their
voices as well as voice of accused in the recorded
conversation.
2.10 Upon scrutiny of CDR and CAF of mobile
numbers 9811270335 and 9911554473 used by complainants
during alleged conversation were found registered in their
respective names. Mobile no. 9312411207 seized from the
possession of the accused was found to be registered in the
name of his son Sachin Rathi. The CDRs corroborated the
details of calls as mentioned in the verification and trap
proceedings.
2.11 Investigation revealed that accused Baljeet
Singh Rathi was posted as Kanoongo in DDA, Village Sadhora
Khurd, Anand Parbat Area, New Delhi and land bearing
Khasra Number 344 min was falling under his jurisdiction,
and he had also visited the site and reported encroachment
of khasra no. 344 to his senior officers. He had also filled up
the demolition performa and also signed the demolition diary
after the demolition dated 28.5.2018 on the site.
Investigation also revealed that Ramjas Foundation had
executed a License Deed in the name of Sh. Vikas Kumar
Arya on 27.10.2017 and Sh. Vikas Kumar Arya had appointed
complainant Sh. Sachin Kumar as his attorney vide executed
GPA dated 09.4.2018.
2.12 The above investigation revealed about the
commission of offences punishable under Section 7 and 13(2)
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read with Section 13(1)(d) of Prevention of Corruption Act,
1988 by the accused Baljeet Singh Rathi. The sanction order
for prosecution against accused Baljeet Singh Rathi accorded
by the competent authority was also obtained and accused
was chargesheeted before the court on 02.10.2018.
Cognizance & Charge
3. Vide order dated 16.10.2018, the cognizance was
taken and accused Baljeet Singh Rathi was summoned by the
court. After compliance of Section 207 Cr.P.C, the arguments
on charge were heard and vide dated 05.11.2018, the charge
was framed against accused for the offences punishable
under Section 7 and 13(2) read with 13(1)(d) of PC Act,
1988, to which accused pleaded not guilty and claimed trial.
Prosecution Evidence
4. In order to prove its case, 20 witnesses were
examined by prosecution and their examination in chief is
succinctly discussed herein below. All the witnesses were
cross examined at length by the defence counsel but,
relevant part of their cross-examination shall be referred in
the later part of this judgment under the heading "Analysis of
Material by the Court". For the sake of convenience,
witnesses have been categorized in following four categories:
(i) Complainant and Independent Witnesses;
(ii) CBI witnesses of verification and trap proceedings;
(iii) Expert Witnesses from CFSL; and
(iv) Formal Witnesses.
(i) Complainant and Independent Witnesses
1. Sh. Sachin Kumar (Complainant) (PW-5)
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2. Sh. Ravi (Complainant) (PW20)
3. Sh. Mukesh Rawat, Clerk, Bank of India, CGO
Complex Branch, Lodhi Road, New Delhi. (PW-11)
4. Sh. Akshay Jain, Independent Witness. (PW17)
(ii) CBI witnesses of verification and trap
proceedings
5. Inspector C.M.S. Negi, ACB, CBI, New Delhi
(Verifying Officer). (PW13)
6. Inspector H.V. Attri, CBI, New Delhi (TLO) (PW15).
7. Inspector Pramod Kumar Tanwar, CBI, New Delhi
(Trap Team Member). (PW16)
8. DSP N.C. Nawal, BSFC, CBI, New Delhi. (PW18)
9. Investigating Officer/Inspector Raj Kumar, CBI.
(PW19)
Expert witnesses from CFSL
10. Sh. V.B. Ramteke, Principal Scientific Officer
(Chemistry),CFSL, New Delhi. (PW-10)
11. Sh. Subrat Kumar Choudhary, Senior Scientific
Officer, Grade-II (Physics), CFSL, New Delhi. (PW-12)
Formal Witnesses
12. Sh. Saurabh Aggarwal, Nodal Officer, Vodafone Idea
Ltd. (PW-1)
13. Sh. Rajiv Gandhi, Commissioner (Personnel), DDA,
Delhi.(PW-2)
14. Sh. Shiv Shankar Yadav, Draftsman, Ramjas
Foundation,Delhi. (PW-3)
15. Sh. Vikas Arya, Advocate. (PW-4)
16. Sh. Anil Kumar Sharma, Field Boy, Media House.
(PW-6)
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17. Sh. Jitesh Jain, Businessman. (PW-7)
18. Sh. Prithvi Raj, Tehsildar, Office of Deputy Director,
LM West Zone, Subhash Nagar Crossing, New Delhi.
(PW-8)
19. Sh. Balram Chaudhary, security Guard in the office of
Deputy Director (LM), West Zone, Delhi. (PW-9)
20. Sh. Pramod Singh, Naib Tehsildar DDA, Delhi (PW14)
(i) Complainant and Independent Witnesses
5. PW-5, Sh. Sachin Kumar is the compainant who
deposed that he was appointed as GPA holder of demise plot
of land by Vikas Arya, in whose favour a license deed was
executed by Ramjas Foundation, the owner of said land. As
per his version, during the construction of boundary wall on
the demise plot, accused came on the site and claimed that
the said land belonged to DDA upon which PW1 and his
brother showed him the copy of judgment of Hon'ble High
Court to support their claim that said land belonged to
Ramjas Foundation, but he did not relent and got the
construction demolished on 31.5.2018. In the first week of
July, 2018, the accused met them at the office of J.K.
Properties and raised demand of Rs. 8-10 lakhs for permitting
them to raise construction over said plot, which led them to
file a complaint Ex. PW5/A dated 18.7.2018 with the CBI and
same was assigned to Inspector C.M.S.Negi (PW13) who
discussed the complaint with complainants and joined one
person Sh. Akshay Jain, a bank employee as a witness and
explained the procedure of verification of the complaint to all
of them. Inspector Negi arranged digital voice recorder (DVR)
and new memory card for the purpose of verification and
same was inserted in the DVR by Mr. Negi, introductory voice
of Sh. Akshay Jain was recorded in the memory card through
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DVR to ensure the blankness of the same.
5.01 PW-5 further deposed that on 19.7.2018, at
about 2:15 pm, his brother Ravi made a call to accused
Baljeet Singh Rathi from his mobile phone after putting it on
speaker mode and the same was recorded in the memory
card through DVR. During said conversation, the accused
asked Ravi about his whereabouts and that what time he
would be reaching to which Ravi replied that they were on the
way from Noida and shall be reaching Anand Parbat in
approximately 1.5 hours. Thereafter, he (PW-5), his brother,
Inspector Negi and independent witness Sh. Akshay Jain left
CBI office and headed towards Anand Parbat. On the way, a
call was received from the accused on the mobile phone of
Sh. Ravi, but said call got disconnected before it could be
picked up. Then Ravi dialed the phone number of the
accused by putting his phone on speaker mode and said call
was also recoded in the memory card through DVR and
during said call, accused Baljeet Singh Rathi asked Sh. Ravi
about his location to which Ravi replied that he would be
reaching Anand Parbat within 5 minutes.
5.02 PW5 further deposed that at 4:15 PM,
verification team reached in the vicinity of office of J.K.
Properties and again switched on the DVR and put it in the
left shirt pocket of his brother (one of the complainants) Sh.
Ravi. The independent witness Akshay Jain was asked to stay
outside the office of J.K. Properties, because it was
apprehended that in his presence, the accused might feel
reluctant to ask for bribe. After about 5-10 minutes of
reaching to J.K. Properties, the accused came there and the
conversation started between complainants and the accused
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for about 30 minutes. Thereafter, the accused left the office
of J.K. Properties, he (PW5) alongwith his brother Ravi and
independent witness Akshay Jain went to Inspector Negi who
took back the DVR and switched it off.
5.03 PW5 further deposed that the accused had
asked them (complainants) to pay Rs. 4 lakhs on the next
day as token money to which the complainants told him that
they could arrange only Rs. 2 lakhs to which the accused
agreed. The recorded conversation of verification was heard
through DVR by all members of verification team and
thereafter, verification team reached back to CBI, ACB office
at 7:00-7:15 pm. After reaching the CBI office, memory card
was removed from the DVR in the presence of verification
team and copy of the memory card was prepared by
Inspector Sunil Dahiya. Thereafter, memory card was sealed
in the presence of verification team and the same was
marked and signed by the members of verification team. As
per his version, the CBI sealed the DVR used in the
verification proceedings and handed over the same to
independent witness Sh. Akshay Jain for safe custody. PW-5
further testified that the verification proceedings were
recorded in the verification memo and all the verification
witnesses signed the same as token of it's correctness.
Verification proceedings concluded at about 11:00-11:15 pm.
Upon being shown the verification memo dated 18.7.2018,
PW-5 identified his signatures and that of other signatories
and proved the same as Ex. PW5/B.
5.04 PW-5 further deposed that on 19.7.2018, he
with his brother Ravi reached CBI office where they reported
to Inspector H.V. Attri, the TLO and on that day, independent
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witnesses Sh. Akshay Jain and one more person Sh. Mukesh
Rawat were also present and they were introduced to
complainants and other members of CBI trap team which
included Inspector Harnam Singh, Inspector C.M.S. Negi,
Inspector Pramod Kumar Tawar, Inspector Kamal Singh,
Inspector N.C. Nawal, Inspector Umesh Kaushik and SI T.K.
Singh. Purpose of assembly was explained to all the trap
team members who were also shown and read over the
complaint Ex. PW5/A and verification report Ex. PW5/B. On
the asking of TLO, complainants handed over the amount of
Rs. 2 lakhs in the denomination of Rs. 2,000/- each to the
TLO, the details of said 100 GC notes of Rs. 2,000/- were
noted down by the TLO. Thereafter, Inspector Pramod Kumar
Tanwar gave demonstration to all the members of raiding
team to explain the purpose and significance and use of
phenolphthalein powder and its chemical reaction with
sodium carbonate and water. Thereafter, Inspector Pramod
Kumar Tanwar treated said currency notes with
phenolphthalein powder. On the direction of TLO,
independent witness Mukesh Rawat carried out personal
search of complainant Sachin to ensure that he did not carry
anything except his mobile phone and then he (Mukesh
Rawat) put the tainted bribe amount of Rs. 2 lakhs in the
right side front pocket of the jeans pant worn by complainant
Sachin. PW5 was then directed to hand over the same to the
accused only on his (accused's) specific demand. TLO then
recorded the introductory voice of both the independent
witnesses in the memory card through DVR after ensuring its
blankness.
5.05 In the examination in chief, PW5 further stated
that he and the independent witness Sh. Mukesh Rawat were
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directed to give pre-decided signal after the transaction of
bribe was over. A black colour leather bag, clean glass
bottles, tumblers etc. were arranged and kept in trap kit. All
the said pre trap proceedings were recorded in a
memorandum Ex. PW5/C and all the trap team members
including complainant and the independent witnesses signed
the same as a token of its correctness. As per deposition of
PW-5, the pre-trap proceedings recorded in Ex. PW5/C were
concluded at about 2:30 pm and thereafter, the trap team left
the CBI Office for the spot in two CBI vehicles. After reaching
Ring Road Rajouri Garden near Gurudwara, the vehicles were
stopped and he (PW5) made a call to ascertain the
whereabouts of the accused and said call was made by
putting the phone on speaker mode and during said call,
accused told him to come to Anand Parbat at J.K. Properties
and said call was recorded through DVR. Since accused would
recognize his (PW-5) car, so it was decided to proceed to the
spot in complainant's car. PW5 called his younger brother
Manish, who fetched the white colour I-10 car bearing
registration No. DL-8CAE-9457 and thereafter, PW-5, his
brother Ravi alongwith independent witness Mukesh Rawat
and Sub-Inspector Umesh Kaushik left for the spot in that car
while the other witness Akshay Jain and CBI trap team
members followed them in another CBI vehicle. At about
4:00 pm, they all reached Anand Parbat Industrial Area and
TLO Inspector Attri repeated the previous instructions to the
complainants and the shadow witness Mukesh Rawat but it
was decided that the shadow witness Sh. Mukesh Rawat will
not accompany complainants as otherwise, the accused may
get apprehensive and feel uncomfortable about the
transaction in the presence of a third person. DVR was
handed over to PW5 by keeping the same on recording mode
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and the same was kept in his (PW5) front left side jeans
pocket which he was wearing. Thereafter, he and his brother
Sh. Ravi entered the office of J.K. Properties and after few
minutes accused Baljeet Singh Rathi also arrived in the said
office and demanded Rs. 2.5 lakhs but he was told that only a
sum of Rs. 2 lakhs could be arranged to which, the accused
insisted for Rs. 50,000/- however, he (accused) accepted Rs.
2 lakhs.
5.06 PW5 further deposed that thereafter, he came
out from the office of J.K.Properties and gave pre-decided
signal to the trap team by rubbing his head with his hand and
pursuant to that, trap team of CBI entered into the office of
J.K.Properties. DVR was taken back from him and was
switched off, both the hands of the accused were caught hold
from wrist by the team members of the trap team. TLO
Inspector H.V.Attri gave the introduction of trap team to the
accused and challenged him for demanding bribe. PW5
narrated that accused demanded and accepted the bribe
amount of Rs. 2 lakhs from him with his right hand and then
transferred the same in his left hand and then kept the same
in his front left side pant pocket. Thereafter, right hand wash
and left hand wash of accused Baljeet Singh Rathi were taken
in solution of Sodium Carbonate in the presence of all trap
team members upon which the solution turned into pink
colour and said pink colour solution was kept in separate
glass bottles, Ex. P-1 and Ex. P-2 respectively.
5.07 PW5 further testified that as per instructions of
TLO, independent witness Akshay Jain recovered the tainted
bribe amount which was tallied with the currency notes
mentioned in the handing over memo Ex. PW-5/C by the
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independent witness Akshay Jain and the currency notes
were then kept in a brown envelope and said envelope was
sealed and marked as "TRAP MONEY RS. 2,00,000/-RC DAI
2018A 0022", which was correctly identified by PW5 as Ex.
P-3. PW5 also exhibited the glass bottle LPPW RC DAI 2018
A 0022 containing left side pocket wash of pant of the
accused as Ex. P-4. During examination of PW5, upon
production of the yellow envelope bearing marking "Pant of
accused in case RC -DAI-2018-A-0022", PW5 also identified
the same to be containing the pant of the accused worn by
him on 19.07.2018 i.e at the time of aforementioned bribe
transaction and further stated that the same was taken into
possession by the CBI in his presence. PW5 also identified the
signature of Akshay Jain on the inner portion of the left side
front pocket of said pant as Ex. P-5.
5.08 PW5 identified the rough site plan prepared at
the spot as Ex. PW5/D, arrest-cum-personal search memo of
accused was arrested as Ex. PW5/E and also identified his
signature and that of independent witnesses on said exhibits.
He stated that recorded conversation which took place during
the trap proceedings was heard with the help of DVR and
some lines and words were noted. Further, as per his version,
copy image of recorded conversation was made by Inspector
Sunil Dahiya and thereafter, the memory card containing the
conversation recording during trap proceeding was taken out
from DVR and was sealed and marked as Q-2.
5.09 Further that, the specimen voice of the
accused and that of complainants were taken in new separate
new memory cards through DVR after ensuring their
blankness and the introductory and concluding voices of both
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the independent witnesses were also recorded in said
memory cards through DVR and thereafter, said memory
cards were taken out from the DVR and sealed and marked
separately as S-1 & S-2. As per version of PW-5, CBI brass
seal used in trap proceeding was handed over to independent
witness Mukesh Rawat to keep the same in safe custody and
the DVR used in the trap proceeding was kept in an envelope
bearing marking "CFSL-2018/P-831RCDAI-2018-A-0022
Exhibit DVR", and he identified the the DVR as Ex. P-6 (colly)
and deposed that the same was used in trap proceedings and
deposed that it was kept and sealed in his presence.
5.10 He further stated that vide recovery memo
dated 19.7.2018 Ex. PW5/E, trap proceedings were recorded
and the trap proceedings were concluded at 1:00 a.m. in the
night. He further deposed that on 30.7.2018, he again
attended the CBI office with his brother Ravi and on that day
the independent witnesses Mukesh Rawat and Akshay Jain
also attended the CBI office and in their presence, the
investigation copies of Q-1 prepared during verification
proceedings, Q-2 prepared during trap proceedings,
containing the recorded conversation, were played in the
official lap top and were heard by them (all four) and his
brother identified their voices as well as the voice of accused
Baljeet Singh Rathi and confirmed the same to be the same
conversations which were recorded during the verification of
complaint on 18.07.2018 and during trap proceedings on
19.07.2018. He further deposed that he alongwith his brother
Ravi carefully matched all the conversation with the typed
Hindi transcription of the same. As per his version,
independent witnesses Akshay Jain and Mukesh Rawat also
identified their voices in Q-1 and Q-2 and the voice
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identification cum transcription memo dated 30.07.2018 Ex.
PW5/F was prepared bearing his and his brother's and
independent witnesses' signatures. He further deposed that
the transcriptions of the recorded conversation of the
verification proceedings Q-1 Ex. PW5/G and trap proceedings
Q-2 Ex. PW5/H were prepared.
5.11 He further narrated that CBI had seized from
him copy of self attested GPA of Plot No. T-5-1A, Gali No. 9,
Ramjas Estate, Anand Parbat, New Delhi-110005 vide seizure
memo exhibited as Ex. PW5/I and he also gave an
undertaking dated 07.08.2018 Ex. PW5/J before Inspector
Raj Kumar to produce the original of said GPA before the
Court of Law as and when required. A self attested photocopy
of the judgment dated 22.9.2017 in WP(C) 6674 of 2015 Ex.
PW5/L, was also seized from him vide seizure memo Ex.
PW5/K.
5.12 During examination in chief of PW5, a yellow
envelope bearing marking of CFSL-2018/P-831 Ex. Q-1 was
found containing one brown unsealed envelope bearing mark
Q-1 CO-29/2018 and said brown unsealed envelope was
further found containing one card cover of sandisk of 8 GB
Memory Card bearing marking CFSL-2018/P-831, Ex. Q-1 and
said card cover was also found containing a plastic cover
bearing CFSL-2018/P-831 Ex. Q-1 and from said plastic cover,
8 GB Micro SD Card make Sandisk was taken out and Micro
SD Card was inserted in USB 3.0 forensic card reader and
same was played on the laptop during the deposition of PW-5
recorded on 21.9.2019 and PW5 correctly identified the
voices of speakers in the recorded conversations of
verification proceedings saved in File no. 180719_0209,
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180719_0216, 180719_0424 and 180719_0444, dated
19.7.2018 of said Micro SD Card Q-1. PW5 duly proved said
memory card containing said files alongwith yellow colour and
brown colour envelope, card cover and plastic cover as Ex. P-
7 collectively.
5.13 Likewise, PW5 deposed regarding Ex. Q2
containing 8GB Memory Card bearing marking CFSL-2018/P-
831, upon which he identified signature of Sh. Akshay Jain at
point A on the same and deposed that same were appended
at the time of sealing of Q2. Said 8 GB Micro SD Card make
Sandisk was also taken out and inserted in USB 3.0 forensic
card reader and same was also played on the laptop during
his deposition and found containing several
files.180720_0208, 180720_0208_01, 180720_0311 and
180720_0401 all date of 20.7.2018 wherein PW5 correctly
identified the voices of different speakers in the recorded
conversations of trap proceedings and identified said
memory card containing said files alongwith yellow colour and
brown colour envelope, card cover and plastic cover and
proved the same as Ex. P-8 collectively. Here, I may note
that there is a time gap of +12 hours in the date and time of
recording both in Q1 and Q2. As per proceedings, Q1 was
recorded on 18.7.2018 whereas, the dates of recording
reflected in the files contained in Q1 is 19.7.2018. Similarly,
the trap was laid on 19.7.2018 whereas, the date reflected in
memory card of Q2 is 20.7.2018.
5.14 PW5 deposed further regarding Ex. S-1
containing 8GB Memory Card bearing marking CFSL-2018/P-
831 RC DAI-2018-A0022, upon which he identified signature
of Sh. Akshay Jain at point A and deposed that same were
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appended at the time of sealing of S-1. Said 8 GB Micro SD
Card make Sandisk was used in recording specimen voice of
accused Baljeet Singh and same was also taken out and
inserted in USB 3.0 forensic card reader and upon being
played on the laptop during deposition of PW5, it was found
containing several files 180720_1104, 180720_1105,
180720_1105_01, 180720_1109, and 180720_1109_01 all
dated 20.7.2018 wherein PW5 correctly identified the
introductory and concluding voices of both the independent
witnesses as well as the specimen voice of accused. PW5 also
identified said memory card alongwith yellow colour and
brown colour envelope, card cover and plastic cover and
proved the same as Ex. P-8 collectively.
5.15 Likewise, PW5 deposed regarding Ex. S-2
containing 8GB Memory Card bearing marking CFSL-2018/P-
831 RC DAI-2018-A0022, upon which he identified his and his
brother Ravi's signature as well as of independent witness
Akshay Jain deposed that same were appended at the time of
sealing of S-2. Said 8 GB Micro SD Card make Sandisk was
used in recording specimen voice of complainant Sachin
Kumar and Ravi and same was also taken out and inserted in
USB 3.0 forensic card reader and same was also played on
the laptop during his deposition and it was found containing
file no. 180720_1125, 180720_1126, 180720_1126_01,
180720_1130, and 180720_1130_01 all dated 20.7.2018,
wherein PW5 correctly identified the introductory and
concluding voices of both the independent witnesses as well
as his own specimen voice and that of his brother Ravi. PW5
also identified said memory card alongwith yellow colour and
brown colour envelope, card cover and plastic cover and
proved the same as Ex. P-9 collectively.
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6. PW-20 is Ravi, the other complainant in this
matter. PW20 is the brother of PW5 Sachin Kumar and they
both are the complainants in this case as the complaint dated
18.07.2018 Ex. PW5/A was signed by both of them. As per
his version, in the year 2018, he alongwith his younger
brother were jointly doing the business of auto parts,
hardware goods and real estate. Sh. Vikas Kumar Arya, who
was also doing the business of import-export and real estate
was his friend. Vikas Kumar Arya was the owner of the plot
no. T-5-1A, Gali no. 9, Anand Prabat Industrial area, Ramjas
Estate, Behind old police station, New Delhi and and in
respect of said plot, Vikas Arya had executed a Special Power
of Attorney in favour of his (PW-20) brother Sachin. The
witness further deposed that the aforementioned plot was
built up plot having construction over the same and on
31.05.2018, accused Baljeet Singh Rathi visited said site and
ordered for demolition of the building and caused substantial
damage to the building in the presence of PW-20 and his
brother and despite their request to stop the demolition, the
accused did not pay any heed and indeed, on the same day
on a telephonic talk with PW20, he made a demand for
money for allowing them (PW-20 and his brother) to raise
further construction.
6.01 PW-20 further deposed that in the first week of
July, 2018, he alongwith his brother met accused Baljeet
Singh Rathi at office of J.K. Properties (Sh. Jitesh Jain's office
at Gali no. 10, near old police station in Anand Parbat, Delhi)
and there accused demanded bribe of Rs. 10 lakh for
permitting them (complainants) to raise construction on the
plot in question. The witness further deposed that he and his
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brother gave a thought to the demand of accused Baljeet
Singh Rathi for few days and then decided not to accede to
his demand and instead, he alongwith his brother went to
the office of CBI office on 18.07.2018, there they met
Superintendent of Police and told him about their grievances
and lodged a handwritten complaint dated 18.07.2018
PW5/A (colly) (D-1) bearing his signature at point A and that
of his brother Sachin at point B on each page. The said
complaint was assigned to Inspector C.M.S.Negi with whom
they discussed the complaint. Later on, Mr. Negi called one
person Sh. Akshay Jain, a bank employee and explained the
procedure of verification of the complaint to the complainant
(PW-20), his brother Sachin and to said Sh. Akshay Jain, who
was also read over the contents of written complaint Ex.
PW5/A (colly) (D-1).
6.02 During his examination in chief, PW20 correctly
identified his specimen voice and specimen voice of his
brother Sachin in S-2 and that of accused Baljeet Singh Rathi
in S-1 and also the introductory voices of independent
witnesses namely Akshay Jain and Mukesh Rawat in S-1 & S-
2. On being played Q-1 in the court, he also correctly
identified the voices of different speakers in questioned
conversation Q-1 (alleged recorded conversation of
verification proceedings) and Q-2 (alleged recorded
conversation of trap proceedings). PW20 also identified his
signatures on various documents prepared during verification,
trap proceedings and investigation of the case. Since the
examination in chief of this witness is more or less similar to
deposition of his brother, same is not reproduced for brevity
sake. However, any contradictions or variations, if found in
his testimony, same shall be discussed in later part of this
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judgment. No documents were however, exhibited or proved
through this witness by the prosecution.
7. PW-11 Sh. Mukesh Rawat is the independent
witness who was joined by CBI as a shadow witness at the
time of trap proceedings conducted on 19.7.2018. As per his
version, while he was working as Clerk in Bank of India, he
was deputed by his Branch Manager, to be the witness in
some CBI case and accordingly, he reported to the CBI at
2:00 pm on 19.7.2018, where he met Inspector H.V. Attri
(TLO PW15). He deposed that his colleague Sh. Akshay Jain
also accompanied him to CBI office where they met the
complainants and 4-5 CBI officials who briefed them about
the proposed trap proceedings. The FIR of the present case
Ex. PW11/A2 alongwith complaint Ex. PW5/A and the
verification report dated 18.7.2018 Ex. PW5/B were shown,
read over and explained to all the members present there
and they were satisfied with the genuineness of the
documents. He further deposed that the brass seal and the
DVR which were used during verification produced by Sh.
Akshay Jain were handed over to the TLO of the present
case. IO H.V.Attri told them about the complaint and
complainants informed them that the accused had initially
asked them for bribe amount of Rs.8 lakhs but after
negotiation, the bribe was fixed to Rs.6 lakhs and lastly the
bribe was fixed to Rs.2 lakhs which the complainants had
brought on that day in denomination of Rs. 2000/- each (100
notes), for giving it to the accused. The details of all the GC
notes were noted by Akshay Jain in his (PW11) presence and
they (PW-11 and Sh. Akshay Jain) were also given the
demonstration of the trap proceedings by Inspector H.V. Attri
and other members of the trap team.
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7.01 As per version of PW11, the demonstration of
Phenolphthalein powder was given through independent
witness Sh. Akshay Jain and in that regard PW11 deposed
similarly as deposed by PW5. He further stated that
thereafter, personal search of the complainant was carried
out by PW-11 and Akshay Jain and except the mobile phone,
nothing was there on his (complainant) wearing clothes. The
bribe amount of Rs. 2 lakhs treated with Phenolphthalein
powder was put in the right side pant pocket of complainant
Sh. Sachin by Akshay Jain with the instructions to Sachin not
to touch said bribe amount and to handover the same to
accused on his specific demand. Here, I may note that as per
version of PW5, it was PW17 Akshay Jain, who carried out
personal search of complainant and it was PW11 Mukesh
Rawat who put the tainted money in the right side pant
pocket of complainant Sachin. To that extent, the version of
PW5 and PW11 is not in consonance with each other.
7.02 Rest of the deposition of PW11 in his
examination in chief regarding trap proceedings conducted on
19.7.2018, is more or less same as deposed by PW5 Sachin
Kumar. He deposed that on 19.7.2018 at about 2:45 pm, he
along with CBI trap team, complainants and other
independent witness Akshay Jain left CBI office and stopped
somewhere after Naraina where Mr. Sachin made a call to the
accused to know about his whereabouts and the time he
would be reaching at the office of J.K. Properties. Thereafter,
at about 3:30 PM, they reached at said office where PW11
alongwith Sh. Akshay Jain and both the complainants and
one CBI official were dropped whereas, the remaining
persons of the team stayed back to join them later. The
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complainants Sachin and his brother both went inside the
shop/office of the property dealer. It was decided that raid
will be conducted after pre-decided signal is given by
complainant. As per his version, complainant Sh. Sachin
came out of the shop for a brief moment to tell him that
accused Baljeet Singh Rathi had come in the office and
thereafter, he (complainant) went ahead to fetch some cold
drinks and thereafter, went inside the office of his friend.
After about 10-15 minutes, Mr. Sachin again came out of said
office and gave pre-decided signal indicating that the raid is
to be made.
7.03 PW11 deposed further that thereafter, they all
about 10-12 people raided the office and two of the CBI
officials caught hold of both hands of accused Baljeet Singh
Rathi and told him that he was being apprehended on
account of complaint of bribery. Personal search of accused
Baljeet Singh Rathi was carried out by Sh. Akshay Jain and a
sum of Rs. 2 lakhs i.e. bribe amount was recovered from his
right side pant pocket. Deposition of PW11 with regard to
seizure of hands wash and pant pocket wash of accused,
recovery of tainted amount, mobile phones and other articles
of personal search of accused, arrest of accused vide arrest
memo exhibited as Ex. PW5/E, preparation of memory card
Q-1 and Q-2 and their seizure of vide Ex. P-7 & Ex. P-8,
identification of DVR used in recording of conversation
between accused and complainants, seizure of said DVR,
recording of specimen voice of accused and complainants in
S-1 and S-2, seizure of said DVR and memory cards as Ex. P-
6, Ex. P-9 and Ex. P-10 respectively and further regarding
preparation of identification-cum- transcription memo Ex.
PW5/A (D-11) on 30.07.2018 pertaining to recorded
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conversation of verification and trap proceedings, is more less
on the same lines as deposed by PW5 Sachin Kumar. It is
however, necessary to note that since PW11 had failed to
disclose true and complete facts, he was declared hostile by
Ld Sr. PP, who later cross examined him with the permission
of the court. During cross-examination by Ld. Senior Public
Prosecutor, upon being confronted with his statement
recorded under section 161 Cr.P.C Ex.PW11/A1, the witness
came out with complete details and supported the
prosecution case on all material aspects.
7.04 PW11 correctly identified the accused Baljeet
Singh Rathi in the court during his examination recorded on
10.4.2019. As per his version, he (PW-11) was initially asked
to act as a shadow witness and to stay close to complainant
Sh. Sachin Kumar in order to over hear the conversation and
to see the transaction of bribe amount which may take place
between the complainant and accused Baljeet Singh Rathi
and to give pre-decided signal by rubbing his head with hand
after transaction of bribe was over. But, after reaching near
the spot, it was decided that he (PW-11) will not accompany
the complainants and would stay back. PW11 alongwith
other trap team members took position on the main road
adjacent to the office of J.K. Properties. PW11 also deposed
that DVR was handed over to Sh. Sachin Kumar by keeping
the same on recording mode and the same was kept in his
(Sachin Kumar) left side pant pocket.
7.05 In his cross-examination by Ld. Senior Public
Prosecutor, PW11 deposed further that he alongwith
Inspector Harnam Singh were instructed to visit office of the
accused to seize one file pertaining to the property of the
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complainants and accordingly, they left the spot at about
17:25 hours and reported back at the spot at about 21:35
hours alongwith one file related to the property of the
complainants, which was seized by Inspector Harnam Singh
from Naib Tehsildar Pramod Singh vide production-cum-
seizure memo dated 19.7.2018 Ex. PW11/A3, in his
presence. He further stated that the accused was arrested at
about 21:25 hours in his presence and in presence of
independent witness Sh. Akshay Jain vide arrest memo Ex.
PW5/E.
7.06 PW11 further deposed that the trap money
marked as 'Trap Money', sealed bottles marked as 'RHW',
'LHW', 'LPPW' and memory cards marked as Q-2
(conversation between the accused and the complainants)
and S-1 (containing sample voice of the accused), S-2
(containing sample voices of the complainants), DVR make
Sony and 'pant of accused' were taken into possession by CBI
vide recovery memo Ex. PW5/E bearing his signature at point
D on all the pages including his endorsement at point D-1 of
receipt of CBI brass seal at the last page of said recovery
memo. He further deposes that the recovery memo Ex.
PW5/E bears facsimile impression of CBI brass seal in ink on
each page at point D-2 and said specimen impression of CBI
brass seal in ink/LAC, exhibited as Ex. PW11/A4 was used for
sealing the articles which bears his signatures at Point B and
signatures of other independent witness at point A.
7.07 He further deposed that on 08.8.2018,
independent witness Sh. Prithvi Raj and Sh. Balram
Choudhary identified the voice of the accused in the
conversation of verification proceedings Q-1 and trap
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proceedings Q-2 in his presence vide voice identification
memos Ex. PW8/D and Ex. PW8/E respectively. During his
evidence on production of yellow colour envelope containing
Ex. Q-2 (already Ex. P-8), he identified his signature and that
of Sh. Akshay Jain and deposed that they put their signature
at the time of sealing of Q-2. He also identified his signature
and that of Sh. Akshay Jain on the card cover which was
found containing plastic cover containing 8 GB Micro SD Card
which was played on the laptop during his evidence wherein
he correctly identified the voices of all the speakers in the
conversation.
8. PW-17, Sh. Akshay Jain is the other
independent witness who remained part of both verification
and trap proceedings. His (PW17) testimony with regard to
verification and trap proceedings is more or less similar to the
deposition of verification officer PW13 and the complainant
Sachin PW5. As per his version, while he was working as
Probationary Officer at Bank of India, CGO Complex, Delhi,
he attended CBI office first time on 18.7.2018 on the asking
of his senior officer and on the direction of Inspector C.M.S.
Negi, he again joined the trap proceedings on 19.07.2018.
Since testimony of said witness is corroborative and on lines
of deposition of PW13 and PW5, same is not reproduced to
avoid repetition and shall be discussed at the relevant place
in later part of this judgment. No document was got however
exhibited or proved even through this witness.
(ii) CBI witnesses of verification and trap
proceedings
9. PW-13 is the verification officer Inspector
C.M.S. Negi, who also remained part of trap proceedings
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conducted after registration of the FIR. He deposed on same
lines as deposed by PW5 Sachin Kumar regarding the
contents of the complaint dated 18.07.2018 Ex.PW5/A(colly),
pursuant to which PW13 had conducted the verification. He
further deposed that on 18.7.2018, in order to verify the
complaint, a team was constituted and independent witness
Sh. Akshay Jain was introduced to complainant and the
procedure for verification was explained to them. For the
purpose of verification, DVR, sealed memory card, CBI brass
seal, sealing material was arranged, functioning of DVR was
explained. After checking the blankness of DVR, memory
card was taken out from the sealed cover and inserted in the
DVR, introductory voice of independent witness Sh. Akshay
Jain was recorded in the same.
9.01 Inspector Negi further deposed that at 2:16
pm, complainant Sh. Ravi made a phone call from his mobile
phone to the accused Baljeet Singh Rathi in the presence of
Sh. Akshay Jain and in said call, the accused had asked about
location of Sh. Ravi and agreed to meet him in Anand Parbat
Area. The said phone call was recorded in the memory card
through DVR as it was received by the complainant Sh. Ravi
after keeping his mobile phone on speaker mode. After said
call, he with both the complainants and independent witness
Sh. Akshay Jain proceeded towards Anand Parbat for further
verification and on the way Sh. Ravi received a phone call
from the accused but said call got disconnected before it was
picked up. Hence, a call was made by Sh. Ravi to the accused
and in said call accused inquired about the location of Sh.
Ravi who told him that he (Ravi) was 5 minutes distance
away from Anand Parbat Area, The said call was also
recorded in the memory card through DVR by keeping the
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phone on speaker mode.
9.02 Sequence of events narrated by PW13 after
reaching near the office of JK Properties and till the accused
left said office after meeting the complainants is more or less
similar as deposed by PW5 and therefore, said part of his
(PW11's) testimony is not discussed herein. He further
deposed that thereafter, he alongwith independent witness
and the complainants returned back to CBI office, where
memory card was taken out from the DVR in the presence of
independent witness, a copy for the purpose of investigation
was prepared from the memory card by Inspector Sunil
Kumar by using a write blocker, then the memory card was
put in the plastic cover which was marked as Q-1 in CO
29/2018 and same was got signed from him, independent
witness and the complainants. The witness deposed further
that the original packing containing Q-1 was then put into an
envelope and same was also signed by PW-13 and said other
persons.
9.03 PW-13 stated that thereafter, complainants
were asked to arrange Rs. 2 lakhs as demanded by the
accused and were asked to report in CBI office on next
morning. He also identified his signature at point D on each
page of the verification memo dated 18.7.2018 Ex. PW5/A.
Further he deposed that on the basis of verification done by
him, an FIR RC 22(A)/2018 Ex. PW11/A2 was registered in
CBI, ACB, New Delhi on 19.7.2018 and the same was handed
over to Inspector H.V. Attri and he identified the signature of
SP V.M. Mittal on said FIR at point C.
9.04 PW13 further deposed that on 19.7.2018, the
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independent witness Akshay Jain, both the complainants Sh.
Ravi and Sh. Sachin reported in the office of CBI. Team of CBI
officers including Inspector Harnam Singh, Inspector Pramod
Tanwar, Inspector Kamal Singh, Inspector N.C. Nawal, SI
Umesh Kaushik and SI T.K. Singh was constituted and
independent witnesses Akshay Jain and Mukesh Rawat also
joined. All the team members were introduced to each other
and the purpose of assembly was explained to all. He further
deposed that complaint Ex. PW5/A, verification memo Ex.
PW5/B and FIR Ex. PW11/A2 were shown/read over and
explained to all the members of the trap team. Rest of his
deposition regarding pre-trap proceedings till the
apprehension of accused and recovery of bribe amount from
accused in the office of J.K.Properties is largely on same lines
as deposed by the PW5 complainant Sachin Kumar and
independent witness PW11 Mukesh Rawat whose testimonies
have already been reproduced above. The
inconsistencies/contradictions in their testimonies if any, shall
be discussed in later part of this judgment.
9.05 Besides above, the witness PW13 further
testified that the accused was arrested vide arrest cum
personal search memo Ex. PW5/A. With regard to recording
of post trap proceedings such as recording of specimen voice
of the accused in memory card S-1, specimen voices of both
the complainants in memory card marked as S-2 and
preparation of the image of memory card Q-2, his deposition
is again on same lines as deposed by PW5. He further
deposed that DVR make Sony used during trap proceedings
was also sealed in a separate envelope and the same was
also signed by both the independent witnesses and the TLO.
The witness stated further that sealed trap money marked as
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trap money, sealed bottles, RHW, LHW, LPPW and memory
cards marked Q-2, S-1 and S-2 as well as DVR used in the
proceedings and the seized pant of the accused were taken
into police possession vide recovery memo Ex. PW5/E bearing
signatures of the complainants and of independent witnesses
and that of TLO and the witness PW-13. He also identified
the signature of other CBI officials who were members of trap
team on the recovery memo Ex. PW5/B. The witness
deposed that brass seal of CBI for sealing the articles in the
present case was also appended on the recovery memo and
said seal after use was handed over to independent witness
Sh. Mukesh Rawat.
10. PW-15, Inspector H.V. Attri is the trap laying
officer (TLO). As per his version, on 19.7.2018, at about 12
P.M, while he was working as Inspector in ACB Branch, CBI,
he was called by the then SP, ACB, CBI who handed over him
the FIR Ex. PW11/A2 with instructions to interact with
Inspector C.M.S Negi and the complainants of the case. The
witness deposed that on perusal of the file FIR, it was found
that the instant case was registered on the complaint Ex.
PW5/A of the complainants Sh. Sachin and Sh. Ravi and the
verification of the complaint was conducted by Inspector
C.M.S. Negi vide verification memo Ex. PW5/B. He further
deposed that he discussed the case with Inspector C.M.S.
Negi and the complainants, who were present with him. A
trap team comprising of he himself, Inspector C.M.S. Negi,
Inspector Harnam Singh, Inspector N.C. Nawal, Inspector
Pramod Tanwar, Inspector Kamal Singh, SI T.K. Singh and SI
Umesh Kaushik was constituted and presence of two
independent witnesses Sh. Akshay Jain and Sh. Mukesh
Rawat, was also secured from Bank of India through Duty
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Officer, ACB, CBI.
10.01 Further that, All the members were acquainted
with the contents of the complaint, verification memo and the
FIR and they were introduced to each other and the
complaint was registered as CO No. 29/2018. Inspector
C.M.S. Negi produced the memory card marked as Q-1 in CO
No. 29/2018, having recording of conversation recorded
during the verification, the independent witness of the
verification Sh. Akshay Jain also produced the CBI brass seal
and the DVR used during the verification proceedings and all
said exhibits were taken in police possession through a
handing over memo. Complainant Sh. Sachin also produced a
sum of Rs. 2 lakhs in the denomination of 2000 i.e. 100 GC
notes for the purpose of trap to handover the same to the
accused. Details of the notes were also noted in the handing
over memo. Demonstration for the significance of the
phenolphthalein powder was given by Sh. Pramod Tanwar and
the above mentioned GC notes were treated with the
phenolphthalein powder. He further deposed that thereafter,
personal search of Sh. Sachin Kumar was carried out through
independent witness Sh. Mukesh Rawat and after ensuring
nothing incriminating was there on his body or wearing
clothes, the above mentioned currency notes of Rs. 2 lakhs
treated with phenolphthalein powder were put in the front
right side pocket of wearing jeans of Sachin Kumar and he
was directed not to touch the tainted amount before handing
over the same on the specific demand of accused Baljeet
Rathi.
10.02 He further deposed that thereafter, three blank
memory cards, make Sandisk of 8 GB each were arranged
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through Caretaker of ACB, CBI. The witness stated that after
ensuring the blankness of the memory card and DVR, the
introductory voices of independent witnesses Sh. Akshay Jain
and Sh. Mukesh Rawat were recorded through the DVR. PW-
15 further deposed that Sh. Mukesh Rawat was directed to
remain present as shadow witness with the complainant while
another independent witness Sh. Akshay Jain was directed to
remain present alongwith the other CBI officials. Complainant
as well as Sh. Mukesh Rawat were directed to give the pre-
decided signal after the transaction of the bribe was over.
10.03 PW15 further deposed that handing over memo
running into 9 pages already Ex. PW5/C was prepared by him
in the office of ACB, CBI and both the complainants,
independent witnesses and CBI Officials had put their
signature on the same and the proceedings of the aforesaid
handing over memo were concluded at 2:32 pm. Thereafter,
all the trap team members, including both the independent
witnesses and both the complainants and sub-ordinate staff
left for the spot in two CBI vehicles alongwith trap kit, official
laptop/printer as well as the copy of the FIR, handing over
memo and other stationary items.
10.04 The rest of the narration of story by PW15 is
same as given by other above mentioned witnesses namely
complainant Sachin Kumar (PW5), independent witness
Mukesh Rawat (PW11) and the verification officer Inspector
C.M.S.Negi (PW13) as they all were also the members of trap
team. Hence, said part of his examination-in-chief is not
discussed here however, if required, the details shall be
discussed at later part of this judgment under the heading
'Analysis of material by Court'.
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10.05 During examination in chief of PW15, MHC(M)
had produced one yellow colour envelop containing seal
impression alongwith cloth wrappers removed from exhibit
bottles RHW, LHW and LPPW, duly sealed with the seal of
CFSL and upon opening the same, it was found containing the
yellow colour envelop, which was further found containing
three cloth wrappers marked as RHW, LHW and LPPW, having
seal of CBI brass seal in lac. PW-15 identified cloth wrappers
of RHW and LHW as the same wrappers which were used for
wrapping the bottles marked as RHW and LHW respectively.
The witness deposed that the cloth wrapper marked as RHW
Ex. PW15/A1 and LHW Ex. PW15/A2 bore his (PW-15)
signatures at point A and signatures of both the independent
witnesses Sh. Mukesh Rawat and Akshay Jain at points B and
C respectively.
10.06 PW-15 deposed further that cloth wrapper
marked as LPPW Ex. PW15/A3 was bearing his signature at
point A and the signatures of Sh. Mukesh Rawat and Sh.
Akshay Jain at point B and C respectively as they had put
their signatures in his presence. He further deposed that
yellow colour envelope Ex. PW15/A4, was bearing the
particulars of the case and also having the marking 'envelope
containing seal impression alongwith cloth wrappers removed
from Exhibit bottles RHW, LHW and LPPW'. The witness
further deposed that thereafter, the pant of accused Ex. P-5
collectively was also kept in an envelope and the same was
sealed and marked and signed by him (PW-15) as well as
both the independent witnesses. Regarding recovery of
tainted money from accused and its seizure, arrest of
accused and his personal search, preparation of handing over
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memo, the deposition of PW15 is broadly similar to the
depositions of other members of trap team which are already
narrated above.
10.07 The witness PW15 further deposed that rough
site plan dated 19.7.2018 Ex. PW5/D was prepared at the
spot and the same bears the signature of Sh. Sachin at point
A, signatures of Ravi at point B, signature of Akshay Jain at
point C and his (PW-15) signature at point D and signature of
another independent witness at point E. The witness further
deposed that Naib Tehsildar of accused namely Sh. Pramod
Singh was intimated about the trap of the accused by the CBI
team and vide production-cum-seizure Ex. PW11/A3, relevant
file Ex. PW8/A pertaining to the property of the complainants
was seized from the office of accused by Inspector Harnam
Singh in the presence of independent witness Mukesh Rawat,.
10.08 PW15 deposed further that thereafter, the
recorded conversation which took place during the trap
proceedings was also heard with the help of the DVR and
some lines/words were noted for taking specimen voice of
accused Baljeet Singh Rathi. Inspector Sunil Dahiya was
requested to attend the spot for preparation of the
investigation copy of the recorded conversation of trap
proceedings. Thereafter, the memory card of the make
Sandisk of 8 GB in which said conversation was recorded was
taken out from the DVR. A new memory card of Sandisk of 8
GB was inserted in the DVR for recording specimen voice of
the accused, which the accused agreed to give voluntarily.
After ensuring the blankness of the fresh memory card as
well as of the DVR, the introductory voices of both the
independent witnesses were recorded in the same memory
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card through DVR before and after recording of specimen
voice of the accused in the memory card. The witness further
stated that thereafter, the aforesaid memory card was taken
out from the DVR and kept in a plastic cover and marked as
S-1 of Baljeet Singh.
10.09 PW-15 further deposed that the DVR which was
used during the trap proceedings was kept in a brown colour
envelope and marked as DVR and both the DVR as well as
brown colour envelope were signed by him (PW-15) and both
the independent witnesses and the brown colour envelope
containing the DVR was then sealed with the seal of CBI
brass seal. He further deposed that the yellow colour
envelope Ex. P-6 (colly.) (Exhibit DVR) produed by MHC(M)
was found containing same black colour DVR make Sony on
which he identified signatures of both the independent
witnesses Sh. Akshay Jain and Sh. Mukesh Rawat at point A
and B respectively as well as his own signature at point C.
PW-15 further deposed that thereafter, the memory cards
marked as Q2, S1, S2 as well as Sony make DVR marked as
DVR, pant of accused, sealed bottle marked as RHW, LHW
and LPPW and trap money marked as Trap Money were taken
into police possession vide recovery memo Ex. PW5/E.
10.10 He further deposed that the specimen
impression of brass seal used for sealing the aforementioned
articles were taken on some sheets of paper with ink/lac and
the same were signed by him (PW-15) and both the
independent witnesses. The witness stated that the facsimile
of the aforesaid CBI brass seal was also appended in ink of
each page of recovery memo at point D2 and said brass seal
which was used during trap proceedings was handed over to
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the independent witness Sh. Mukesh Rawat under proper
acknowledgement on the last page of recovery memo Ex.
PW5/E and he was also directed to keep the CBI brass seal in
safe custody and to produce before the competent authority
as and when called for. PW-15 further deposed that
thereafter, they all came to the CBI head office, where after
getting the accused medically examined, he deposited all the
exhibits/articles in the Malkhana of CBI, ACB, New Delhi. He
further deposed that thereafter, the accused was produced
before the court on 20.7.2018 and was remanded to judicial
custody. He deposed that later on, the present matter was
transferred to CBI Inspector Raj Kumar on 23.7.2018 for
further investigation as per the order of SP, CBI, ACB, Delhi.
11. PW-16, Inspector Pramod Kumar Tanwar is also
one of the members of the trap team. As per his version, in
the year 2018 while he was working as Inspector at CBI,
ACB, New Delhi on 19.7.2018, at around 12:15 pm, SP, CBI,
New Delhi asked him to assist Inspector H.V. Attri in a trap
proceedings and accordingly, he met Inspector H.V. Attri and
at that time some other CBI officials Inspector Harnam
Singh, Inspector N.C. Nawal, Inspector C.M.S. Negi, SI T.K.
Singh etc. were also present there at that time. He further
deposed that at the same time, two independent witnesses
Sh. Mukesh Rawat and Sh. Akshay Jain as well as the
complainant Sh. Sachin and one more person, whose name
he did not remember were also present and they all were
explained the purpose of assembly by Inspector H.V. Attri,
who also read over and explained the contents of the
complaint Ex. PW5/A, verification report Ex. PW5/B and the
FIR Ex. PW11/A2 to all the members of trap team. The
witness deposed that a sealed envelope containing the
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memory card of the conversation which was recorded during
verification marked as Q1, was taken into police possession
through handing over memo, the independent witness
Akshay Jain produced the CBI brass seal and DVR which were
used during the verification of the complaint and handed over
the same to Inspector H.V. Attri. Rest of his deposition is also
in the nature of corroborative evidence as he also deposed in
same fashion as deposed by other members of trap team.
None of the documents was got exhibited or proved through
this witness. Details of his deposition if required, shall be
discussed later part of this judgment.
12. PW-18 DSP N.C. Nawal, BSFC, CBI, New Delhi
is another CBI member of the trap team. As per his version,
in May, 2014, when he was posted in ACB, New Delhi as
Inspector on 19.7.2018, he was instructed to report to
Inspector H.V. Attri for trap proceedings. Accordingly, he
reported Inspector H.V. Attri, who constituted a team of
Inspector Harnam Singh, Inspector Pramod Kumar Tanwar,
Inspector Kamal Singh, Insector C.M.S. Negi, SI Umesh
Kaushim and SI T.K. Singh for laying a trap. Since testimony
of this witness is also repetitive, same is not reproduced
herein for brevity sake. To the extent of any variation, if
found in his testimony, same shall be discussed in later part
of this judgment. No document was exhibited or proved
through this witness by the CBI.
13. PW-19, Inspector Raj Kumar is the IO of the
case. As per his version, in the year 2018 when he was
posted as Inspector in CBI, ACB, New Delhi he had received
the directions for investigation of the present case on
23.7.2018. PW-19 deposed that the FIR of the present case
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was registered on 19.7.2018 and Inspector Hukum Veer Attri
(TLO)was the initial IO of this case and PW19 was handed
over further investigation of the the present case. The
witness further deposed that Investigation papers and case
diaries were handed over to him by Inspector H.V. Attri on
23.7.2018 through handing over and taking over memo. He
deposed that during investigation, firstly he had discussed
the case with the previous IO Inspector H.V. Attri and
thereafter, bottles having solutions in a sealed condition of
right hand wash, left hand wash and left side pant pocket
wash were sent to CFSL, Delhi for examination through letter
no. RC-0022(A)/2018/A-665 dated 24.7.2018 of Sh. V.M.
Mittal, SP, CBI, ACB, New Delhi addressed to Director, CFSL
(Science) and the said letter Ex. PW19/A (D-10) was signed
by Sh. V.M. Mittal at point A. Letter Ex. PW19/A was
accompanied with the certificate Ex. PW19/B given by Sh.
V.M. Mittal, SP and same also bears his signatures at point A.
13.01 PW-19 further deposed that during the course
of investigation, he had prepared voice identification and
transcription memo on 30.7.2018. Thereafter, he conducted
the proceedings of voice identification and preparation of
transcription memo in the presence of independent witnesses
Sh. Akshay Jain, Sh. Mukesh Rawat and both the
complainants Sh. Sachin and Sh. Ravi. The witness identified
his signature on the voice identification-cum-transcription
memo dated 30.7.2018 (running into 11 pages) Ex. PW5/F at
point E and on the transcription of Q-1 Ex. PW5/G (running
into 17 pages) at point D on each pages. PW-19 further
deposed that the transcription of Q-2 Ex. PW5/H (running
into 10 pages) was prepared in the presence of independent
witnesses Akshay Jain, Mukesh Rawat and both the
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complainants Sachin Kumar and Ravi and the same was
signed by them in his presence and he also signed the same
at point E on each pages. The witness deposed that during
voice identification proceedings, both the complainants had
identified the voice of accused Baljeet Singh Rathi as well as
their own voices.
13.02 PW-19 further deposed that during
investigation, Q-1 and Q-2 containing questioned voices
(recorded conversation of verification and trap proceedings)
and specimen voices S-1 (accused) and S-2 (complainants)
and DVR were sent to CFSL, New Delhi for voice comparison
by the CFSL Expert through letter No. RC DAI 2018
A0022/8894 dated 31.7.2018 Ex. PW19/C of Sh. V.M. Mittal,
SP, CBI, New Delhi addressed to Director, CFSL, New Delhi
bearing his (Sh. V.M. Mittal) signature at point A. He further
deposed that the aforementioned document Ex. PW19/C was
accompanied with a certificate Ex. PW19/D issued by Sh. V.M.
Mittal.
13.03 The witness further deposed that during the
course of investigation, voice of accused Baljeet Singh Rathi
was identified by Sh. Prithvi Raj, Tehsildar, office of Deputy
Director/Land Management (West Zone), Subhash Nagar
Crossing, New Delhi and Sh. Balram Chaudhary, Security
Guard, DDA, office of Deputy Director/Land Management
(West Zone, Subhash Nagar Crossing, New Delhi in the
presence of independent witness Mukesh Rawat on
08.8.2018. The witness further deposed that separate voice
identification memos Ex. PW8/D and Ex. PW8/E were
prepared on 08.8.2018 and the same were bearing his
signatures at point C. He further deposed that during
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investigation, he had seized one original file bearing no. F-
7(01)/16/LM/West Zone, DDA in respect of village Shadora
Khurd and Khasra No. 352/344 (min) containing
correspondence pages serial no. 01 to 20 and note sheet 1n
to 5n (total pages 3) from Sh. Pramod Singh, Naib Tehsildar,
Office of Deputy Director/Land Management (West Zone),
Subhash Nagar Crossing, New Delhi through production-cum-
seizure memo dated 06.8.2018 Ex. PW14/A6 bearing his
signatures at point B. PW-19 further deposed that during
investigation, he had also seized one self attested photocopy
of GPA of plot no. T-5-1A situated at Gali No. 9, Ramjas
Estate, Anand Parbat, New Delhi executed on 19.4.2018
between Sh. Sachin Kumar and Sh. Vikas Kumar Arya
through production-cum-seizure dated 07.8.2018 Ex. PW5/I
bearing his signatures at point A and signature of
Complainant Sh. Sachin Kumar at point B. The witness stated
that during investigation, he had seized one license deed Ex.
PW3/A from Sh. Vikas Kumar Arya vide production-cum-
seizure memo dated 07.8.2018 Ex. PW4/B bearing his
signature at point B.
13.04 The witness further stated that vide
production-cum-seizure memo dated 10.8.2018 Ex. PW1/A,
he had seized documents relating to three mobile numbers
9811270335, 9911554473 and 9312411207 from Sh.
Saurabh Aggarwal, Nodal Officer, Vodafone Mobile Services
Ltd. and same was bearing his signature at point B. He
further stated that the documents i.e. CAFs were seized vide
seizure memo Ex. PW1/B and Sh. Saurabh Aggarwal had
produced said documents in CBI office vide letter dated
31.7.2018 Ex. PW1/J. PW-19 further deposed that Saurabh
Aggarwal also provided the Vodafone Cell ID Chart of Delhi in
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respect of said three mobile numbers already exhibited as Ex.
PW1/I and at the time of providing CDRs, he (PW19) had also
provided the certificate under Section 65-B of Indian
Evidence Act Ex. PW1/H.
13.05 PW-19 further stated that during investigation,
the complainant Sachin Kumar had provided a copy of the
judgment dated 22.9.2017 in W.P. (C) No. 6674/2015 Ex.
PW5/L and same was seized by him vide production-cum-
seizure memo dated 14.9.2018 Ex. PW5/K. The witness
further deposed that during investigation, vide letter no. RC-
0022(A)/2018/8665 dated 24.7.2018 of the Superintendent
of Police, CBI, ACB, New Delhi, three sealed glass bottles
were forwarded through the Messenger Sh. Kuldeep Kumar of
CBI, ACB, New Delhi for laboratory examination and expert
opinion. The witness stated that the chemical examination
report Ex. PW10/A was received by him during investigation
through the SP and as per the result of examination, the
exhibits Right Hand Wash (RHW), Left Hand Wash (LHW) and
left pant pocket wash(LPPW) gave positive test for the
presence of phenolphthalein and sodium carbonate.
13.06 PW19 further deposed that vide letter dated
31.7.2018 of SP, the audio recordings as well as the voice
samples of accused, complainant and independent witnesses
were sent to CFSL Physics Division for comparison. He further
deposed that the Forensic Voice Examination Report dated
10.9.2018 Ex. PW12/A was received by him through SP, CBI,
ACB, New Delhi. Further he deposed that upon completion of
investigation, he sought a prosecution sanction against the
accused from his department i.e. Delhi Development
Authority which was received by him vide sanction order
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dated 24.9.2018 Ex. PW2/A, from the office of Sh. Kamal
Singh, Deputy Director (Vigilance-I), DDA vide forwarding
letter Ex. PW19/E and the sanction was marked to him by the
then SP Sh. V.M. Mittal for further necessary action on his
part.
Expert witnesses from CFSL
14. PW-10 Sh. V.B. Ramteke is the Principal
Scientific Officer (Chemistry) in CFSL, New Delhi. As per his
version, he had given his opinion vide his report Ex. PW10/A
in reference to the present case. He further deposed that vide
letter No. RC-0022(A)/2018/8665 dated 24.7.2018 Ex.
PW10/B, Superintendent of Police, CBI, ACB, New Delhi had
forwarded three sealed glass bottles which were received in
Chemistry Division, CFSL, New Delhi on 24.7.2018. He stated
that seal impressions of CBI seal were also forwarded
through aforementioned letter of SP and the bottles were
found sealed with the seal impression C.B.I A.C.B N.D
21/2018 and seals were intact and tallied with the above seal
impression forwarded through aforementioned letter. He
further deposed that he had carried out the chemical
examination of the contents of the bottles marked as Ex.
RHW, LHW and LPPW and all the exhibits gave positive test
for the presence of phenolphthalein and sodium carbonate
and he prepared his detailed chemical examination report
dated 31.7.2018 Ex. PW10/A.
15. PW-12 is Sh. Subrat Kumar Choudhary. As per
his version, while working as Senior Scientific Officer, the
present case was received from SP, CBI, ACB, New Delhi on
31.7.2018 vide letter No. RC-DAI-2018-A0022/8894 dated
31.7.2018 for voice examination contained in the parcel
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marked as Q-1 (containing questioned audio recording of
verification proceedings), Q-2 (containing questioned audio
recording of trap proceedings), S-1 (containing specimen
voice recording of the accused Baljeet Singh Rathi), S-2
(containing specimen voice recording of both the complainant
Sh. Sachin and Sh. Ravi) and DVR and at the time of receipt
of the same the parcels were intact and tallied with the
specimen seal provided. He deposed that he examined the
aforementioned questioned and specimen voices contained in
Q-1, Q-2, S-1 and S-2 and gave his report dated 10.9.2018
Ex. PW12/A comprising 14 pages bearing his initials at page
no. 1 to 13 and full signature with official seal at page no. 14.
Further as per his said report Ex. PW12/A the specimen
voices contained in S-1 and S-2 were found tallying with
respective questioned voices contained in Q-1 and Q-2.
During his evidence, PW12 correctly identified the exhibits
Ex. P6 to P10 which were found containing the parcels i.e.
Q1, Q2, S1, S2 and the DVR which were examined by him
and on which he gave his opinion vide his report Ex. PW12/A.
Formal Witnesses
16. PW-1, Sh. Saurabh Aggarwal is the formal
witness as he is the Nodal Officer from Vodafone from whom
certain record was seized pertaining to the mobile phones
which were allegedly used by complainants and accused
during relevant time for exchanging the calls regarding the
alleged demand of bribe. As per the deposition of PW1, he
handed over original Customer Agreement Form (CAF) of
mobile No. 9811270335 and mobile No. 9312411207, e-KYC
CAF of mobile No. 9911554473 as well as the Call Detail
Records and location chart of Delhi Circle (CDR) of the above
mentioned mobile numbers for the period from 01.6.2018 to
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20.7.2018, and certificate under Section 65B of Indian
Evidence Act in respect of computer print out of said
documents to Inspector Raj Kumar, ACB, CBI, New Delhi
through production-cum-seizure memo Ex. PW1/A. He
further deposed that CAF of mobile No. 9811270335 was
registered in the name of Sh. Ravi Bharti S/o Sh. Ashok
Kumar and same with annexures was exhibited as Ex. PW1/B
(collectively), e-KYC CAF Ex. PW1/C of mobile No.
9911554473 in the name of Sh. Sachin Kumar S/o Sh. Ashok
Kumar and CAF of mobile No. 9312411207 with annexures
Ex. PW1/D (collectively) was registered in the name of Sh.
Sachin Rathi S/o Sh. Baljeet Singh, the CDR of mobile No.
9811270335, 9911554473 and 9312411207 for the period of
01.6.2018 to 20.7.2018 (28 pages) were exhibited as Ex.
PW1/E, Ex. PW1/F and Ex. PW1/G respectively. The certificate
under Section 65 of Indian Evidence Act in support of
computerized printouts of said CDR has been exhibited as Ex.
PW1/H. PW1 further proved Vodafone Cell ID Chart of Delhi
in respect of mobile nos. 9811270335, 9911554473 and
9312411207 as Ex. PW1/I and identified his signatures and
seal of the company Vodafone Mobile Service Ltd. on the
same. PW-1 also proved forwarding letter in respect of
aforementioned documents as Ex. PW1/J.
17. PW-2 Sh. Rajiv Gandhi deposed that while
working as Commissioner (Personnel), DDA, Delhi, he vide
sanction order dated 24.9.2018 Ex. PW2/A bearing his
signature and seal, accorded sanction for prosecution of
accused Baljeet Singh Rathi under Section 19 of PC Act, 1988
for his prosecution for the offences punishable under Section
7 & 13(2) read with Section 13(1)(d) of PC Act and sanction
was issued by him after applying his mind on the facts and
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circumstances and the relevant documents placed before
him.
18. PW-3 Sh. Shiv Shankar Yadav is the witness to
the license deed allegedly executed by Ramjas Foundation in
favour of Vikas Arya (PW4) in respect of land in question. As
per his deposition, he was Legal Assistant of Ramjas
Foundation who was the owner of the plot no. T-5-1A,
situated at Gali no. 9, Anand Parbat, measuring 167 yards in
khasra no. 344 village Sadhora Khurd. He stated that he was
present at the time of execution of license deed dated
27.10.2017, between Ramjas Foundation and Vikas Kumar
Arya and and he (PW3) identified his signatures at point A
and signature of Sh. Ravi Gupta at point B on the receipts No.
253 and 118, both dated 27.10.2017 Ex. PW3/A (colly).
19. PW-4, Sh. Vikas Arya is the licencee of Ramjas
foundation and per his version, he executed a General Power
of Attorney (GPA) dated 09.4.2018 Ex. PW4/A in respect of
property bearing No. T-5-1A, Gali No. 9, Anand Parbat
Industrial Area, Ramjas Estate, Behind Old Police Station,
New Delhi, in favour of Sachin Kumar (the complainant
herein) to appoint him to look after said property leased out
to him (PW-4) by the owner Ramjas Foundation and copy of
said license deed was seized from him vide production-cum-
seizure memo dated 07.08.2018 Ex. PW4/B.
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20. PW-6, Sh. Anil Kumar Sharma was the
attesting witness of the General Power of Attorney already
exhibited as Ex. PW4/A, allegedly executed between Vikas
Kumar Arya and PW-5 Sh. Sachin Kumar in respect of
property No. T-5-1A, Gali No. 9, Ramjas Estate, Anand
Parbat, New Delhi and PW6 duly identified his signature on
said document.
21. PW-7 is Sh. Jitesh Jain. As per his version, he
had been knowing the complainant and his brother since their
childhood and they had used his office 5-6 times for holding
their meetings during the period from April to June/July
2018.
22. PW-8 is Sh. Prithvi Raj and he was working as
Tehsildaar in the Office of Deputy Director, LM West Zone,
Subhash Nagar Crossing, New Delhi. He proved file No. F7
(19) 18/LM/WZ/DDA in respect of Khasra No. 344 Min Gram
Sadhora Khurd, Anand Parbat, DDA as Ex. PW8/A collectively
as the same was being maintained in his office in day-to-day
official course of business in respect of demolition of illegal
encroachment of land and he had also seen the said file. As
per his version, at page no. 1 of Ex. PW8/A (colly), there was
a complaint Ex. PW8/B filed by accused Kanoongo Baljeet
Rathi and the same was marked to Naib Tehsildar. He further
deposed that there was a check list or demolition programme
which was approved by Principal Commissioner
(Coordination) and on 28.5.2018, the demolition programme
was carried out, which was reflected in the note sheet at
page no. 3 at point X and at page no. 15 to 17, there was a
rough site plan and photographs of site where the demolition
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was to be carried out and same were exhibited as Ex. PW8/C.
He deposed that said site plan and photographs were carrying
the signature of the accused at point A. As per his version,
he had been knowing accused Baljeet Singh Rathi for the last
about 8-10 years.
22.01 PW8 further deposed that voice identification
memos dated 08.8.2018 exhibited as Ex. PW8/D and Ex.
PW8/E were prepared during the investigation after he
identified voice of the accused and the same were bearing his
signatures at point A on both the voice identification memos.
As per his version, file nos. 180719_0216, 180719_424 and
180719_0444, which were played from the memory card
brought by MHC(M), CBI during course of his examination,
contained voice of the accused and the transcription of the
same is mentioned at point 'BS' in Ex. PW5/G. He further
deposed that 3 recorded conversations i.e. file nos.
180720_0311 and 180720_0401 which were played from the
memory card brought by MHC(M), CBI during course of his
examination, contained voice of accused Baljeet Singh Rathi
and the transcription of the same was mentioned at point 'BS'
in Ex. PW5/H.
23. PW-9 Sh. Balram Chaudhary was working as a
security guard. As per his version, during the month of April,
2018, he was working in the area of Shadhora Khurd and
Choukri Mubarkabad, Delhi and he had filed a complaint
exhibited as Ex. PW9/A to Deputy Director in respect of
encroachment made by Mr. Sachin, Mr. Ashok and Mr.
Ravinder Kumar at Village Shadhora Khurd and same was
marked to the accused. He further deposed that he made a
complaint mentioned at page no. 7/C in file no. F-
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7(01)16/LM/WZ/DDA in respect of Khasra Number 352/344
min to SHO, PS Anand Parbat. He stated that complaint Ex.
PW9/B mentioned at page no. 20/C in file no. F-
7(01)16/LM/WZ/DDA was in his handwriting and PW9
identified his signatures at point A on the same. As per his
version, said complaint was made by him to Deputy Director
in respect of encroachment made by Mr. Sachin, Mr. Ashok
and Mr. Ravinder Kumar. He further stated that report Ex.
PW9/C at Page 7/C file no. F-7(01)16/LM/WZ/DDA was in his
handwriting and had put his signatures at point A. As per his
version, voice identification memo Ex. PW8/B, was bearing
his signatures at point A and same was prepared during voice
identification proceedings and the same contained the voice
of accused Baljeet Singh Rathi. He further deposed that he
had been knowing the accused for last 5 years as the accused
was his superior and he correctly identified the accused in the
court.
23.01 During his examination in chief, one memory
card S-1 was opened and played in the court. As per version
of PW9, same was found containing file nos. 180719_0216,
180719_424 and 180719_0444 containing voice of the
accused and the transcription of the said conversation was
contained at point 'BS' in Ex. PW5/G. Whereas, memory card
Q-2, containing the file nos. 180720_0311 and
180720_0401, when being played in the court, the witness
found them also containing the voice of the accused and he
deposed that the transcription of the said conversation was
contained at point 'BS' in Ex. PW5/H.
24. PW-14 is Sh. Pramod Singh, Naib Tehsildar
DDA. He deposed that as per the document D-9 Ex. PW8/A
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(colly), land in Khasra No. 344 MIN was a Government land
under the control of Delhi Development Authority and said
land was vacant and encroached by the private persons and
order regarding demolition of the unauthorized encroachment
at said land had been passed. He further deposed that the
accused was posted as Kanoongo in DDA and the area of
village Sadhora Khurd behind old building of police station
Anand Parbat was under the jurisdiction of accused therefore,
as on 02.4.2018, the accused was looking after said area for
the protection of the land and during said period accused was
using mobile phone bearing no. 931211207. The witness
further deposed that as per the document D-9 Ex. PW8/B, on
02.4.2018, accused Baljeet Singh Rathi had reported in the
office that some private persons had encroached upon
aforesaid government land ad-measuring 300 square yards.
Further that, accused had also filled up the demolition
proforma Ex. PW14/A1 bearing signature of accused at point
A, of PW14 at point B, that of Assistant Director Sh. Rakesh
Kumar at point C, the then Deputy Director Sh. Suresh
Kumar at point D, the then Director Sh. N.B. Mani at point E
and of the then Principal Commissioner at point F. The
witness further stated that the accused had also filled up the
checklist Ex. PW14/A2 on 03.4.2018 for demolition and after
taking the approval from his seniors, the accused sent the file
to Chief Engineer, North Zone of DDA as well as Executive
Engineer, Western Division-05 for carrying out the demolition
programme. He further deposed demolition programme was
carried out on 28.5.2018 by the accused under the
supervision of the then Executive Engineer and at the time of
demolition, security guard Sh. Balram Chaudhary was also
present subsequent thereto, accused had also prepared the
demolition diary dated 28.5.2018 Ex. PW14/B1.
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24.01 PW-14 further deposed that on 01.6.2018,
Deputy Director sent the file Ex. PW14/A3 to Assistant
Director Ravinder Kumar Nagpal for noting down the re-
claimed land. PW14 further deposed that file bearing No.
F7(01)/16/LM/WZ/DDA Ex. PW14/A4 was his office file. He
further deposed that after demolition of the aforesaid site on
28.5.2018, the fencing work of re-claimed land was started in
the supervision of the then Executive Engineer, Western
Division-05, which was stopped by the private persons, who
did not allow him to fence the aforesaid land. The witness
stated that letter bearing No. F7(01)/16/LM WZ DDA/208
dated 12.6.2018 Ex. PW14/A5 was sent to the SHO, PS
Anand Parbat by the then Deputy Director Sh. Suresh Kumar
and the then Assistant Engineer Sh. Jeet Singh along with
labour of the contractor had reported in their office that the
encroachers did not allow the contractor to do the fencing
work and also made them run away from the site. He
further deposed that as revenue records of DDA are
maintained by khasra number, therefore, as per their record,
DDA had not assigned any number to the plots situated in
Khasra No. 344. He deposed that vide production-cum-
seizure memo dated 06.8.2018 Ex. PW14/A6, original file Ex.
PW14/A4 was seized from him by the CBI Inspector.
Statement of Accused
25. After conclusion of prosecution evidence,
statement of accused under Section 313 Cr.P.C was recorded
in which all incriminating evidence was put to him but as
expected, the same was denied by the accused as wrong and
incorrect. The accused pleaded his innocence and came up
with the plea that he has been falsely implicated in the
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present case by the CBI at the behest of the complainants
who were knowing many senior officers in CBI. Accused
categorically denied his concern with the mobile phone
9312411207 allegedly used by him in demanding the bribe or
striking the alleged deal with the complainants. He further
came up with the plea that a false complaint was lodged
against him by the complainants who are the land grabbers
of the area and who had made several attempts to encroach
upon the demise land belonging to DDA, against which
complaints were also filed against them. Accused stated
further that false and manipulated documents have been
created by the complainants in connivance with CBI officers
and the witnesses joined by CBI in the alleged verification
and trap proceedings are also stock witnesses. The accused
categorically denied that the voice attributed to him in Q1
and Q2 was his voice. As regards specimen voice, accused
came with the plea that his specimen voice was taken under
duress by CBI officer. Accused categorically denied the expert
report Ex. PW12/A stating that the opinion contained in said
report regarding his alleged voice in Q1 and Q2 is incorrect
and manipulated. The accused categorically denied to have
ever visited the office of J.K. Properties as alleged by
prosecution witnesses. Accused also denied to have raised
any demand of bribe from complainants or having accepted
any bribe from them. He also categorically denied the
alleged recovery of any tainted money from him. Accused did
not prefer to lead any evidence in defence.
26. Arguments were advanced at length by both
the Ld. Counsel Sh. Hitender Kapur for the accused and Ld.
Senior PP for CBI Sh. Hari Mohan. Written submissions were
also filed on behalf of CBI and the accused. I have given my
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thoughtful consideration to the rival contentions raised from
both the sides and also carefully perused the entire record
including the written arguments and the supporting
judgments filed by the parties.
Prosecution Arguments
27. Prosecution has relied upon the testimony of
the complainants Sachin Kumar and Ravi who were examined
as PW5 and PW20 respectively. Ld Sr. Public Prosecutor
argued that both the complainants have stood by their
complaint Ex. PW5/A and their testimonies have been duly
corroborated and supplemented by the independent
witnesses Akshay Jain and Mukesh Rawat apart from the
testimony of CBI officials vis-a-vis the existence of complaint,
it's verification and the trap proceedings carried out
thereafter. Ld. Senior PP has further relied upon the technical
evidence in the form of audio recordings of the verification
proceedings, trap proceedings and finally the recovery of
tainted money as well as the supportive forensic evidence
with regard to chemical examination report dated 31.7.2018
Ex. PW10/A filed by PW10 in respect of hand wash (RHW and
LHW), pant wash (LPPW) and voice identification report dated
10.9.2018 Ex. PW12/A filed by PW12.
27.01 While relying upon the above evidence, Ld.
Senior Prosecutor asserted that the prosecution has
successfully proved that the accused, while working as a
public servant, raised the demand of bribe for allowing the
complainants to raise illegal construction on the demise land
and also accepted said demanded money from the
complainants and while accepting said money, he was caught
red handed by the trap team. He further argued that audio
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recordings of the verification as well as trap proceedings are
ample proof of what all transpired between the complainants
and the accused with regard to alleged transaction of bribe.
Further, the recovery of money from the possession of the
accused immediately after the raid by the trap team leaves
no scope for any other inference except that the accused had
committed a crime under Section 7 of PC Act in the manner
and sequence as deposed by the prosecution witnesses. It is
further argued that the audio recording of the verification and
trap proceedings are well admissible in evidence and have
been duly proved on record in accordance with law and the
credibility of such evidence is above board.
27.02 Ld Sr. Public Prosecutor also relied upon the
judgment of Hon'ble Apex Court in Mukut Bihari & Ors. vs
State of Rajasthan (2012)11 SCC642, to urge the point
that mere absence of shadow witness does not vitiate the
whole trap proceedings and the guidelines contained in CBI
Crime Manual in this regard are merely executive instructions
and guidelines which do not have any statutory force & non-
observance thereof, would not vitiate the proceedings.
Defence Arguments
28. Per-contra, Ld. Counsel Sh. Hitender Kapur for
accused assailed the case of the prosecution primarily on 4
counts that the depositions of the complainants and the
independent witnesses are weak, contradictory and shaky
and hence, not reliable. Further on account of various
technical flaws, even the forensic evidence is weak and
inadmissible. Further it is vehemently argued that
investigation is also defective as CBI did not bother to find
out the status of the demise land to know about it's title and
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possession. Further there was no motive for the accused to
demand money from the complainants who were not even in
possession of the plot in question which is also evident from
the testimony of PW4 Sh. Vikas Arya who is alleged to be the
licensee in respect of the demise land and who allegedly
executed the GPA in favour of the complainant PW5 Sh.
Sachin Kumar. It was further argued that Sh. Vikas Arya in
his deposition categorically stated that he did not have any
information regarding any construction or demolition carried
out on the demise property nor even about any complaint
filed by the complainants in that regard. Ld. Counsel for the
accused has also pointed out numerous deficiencies and flaws
in the procedure adopted by the CBI in registration of
complaint and conducting the trap. Ld. Counsel for accused
also pointed out various inconsistencies and contradictions in
the testimony of prosecution witnesses which shall be
discussed in details in the later part of this judgment under
the headings 'Analysis of material by the court'.
28.01 It was therefore, argued that entire story of
the prosecution regarding verification and trap proceedings is
totally false and concocted which is evident from the fact that
as per prosecution case, the verification proceedings were
carried in the office of J.K. Properties on 18.7.2018 while the
trap proceedings were carried out in the same office on
19.7.2018. Whereas, PW7 Sh. Jitesh Jain, the alleged owner
of J.K. Properties categorically denied to have any knowledge
about the dates and times of the alleged visits of Sh. Sachin
and Sh. Ravi in his office of J.K. Properties. Rather as per his
version, he (PW7) never came to know about the alleged
transaction of bribe which allegedly took place in his office.
Upon being confronted with his statement under Section 161
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Cr.P.C wherein, he is stated to have disclosed about the dates
of the alleged visits of the complainants to his office to CBI,
PW7 categorically denied his statement to that extent. Ld.
Counsel further pointed out that as per the cross-examination
of PW5, neither Sh. Akshay Jain nor Sh. Mukesh Rawat who
were allegedly joined as independent witnesses during trap
proceedings had seen the accused demanding or accepting
the bribe amount at any point of time which is totally in
violation of the CBI Crime Manual, 2005 which mandates that
in trap cases, some independent person should join to
witness and/or overhear the conversation of the suspect
public servant. Even the independent witness Sh. Mukesh
Rawat is stated to be not reliable on account of various
contradictions in his testimony.
28.02 Ld. Counsel further argued that even the
testimony of verification officer PW13 Sh. C.M.S. Negi is
infected with major contradictions and is not supporting the
prosecution case as put forth in the chargesheet. It was
argued that the facts narrated in his statement recorded
under Section 161 Cr.P.C Ex. PW13/DA regarding his having
seen the complainant Sh. Sachin entering in the office of J.K.
Properties and having seen Sh. Sachin and Sh. Ravi coming
out from the office of J.K. Properties on 18.7.2018 are
incorrectly recorded. Further the bike of the accused on
which he allegedly came to the office of J.K. Properties on
19.7.2018 was never seized by the CBI officials nor even the
person Sh. Vijay Verma to whom it was allegedly handed over
after the apprehension of accused Baljeet Singh Rathi, has
been examined as a witness by the prosecution. Further, said
witness PW13 in his cross-examination deposed that it was
complainant Ravi who told accused Baljeet Singh Rathi
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telephonically to come to the office of J.K. Properties on
18.7.2018 but his said deposition does not find support from
the recorded conversation Q1 or transcription of said
conversation Ex. PW5/G and the witness was unable to
explain as to how said conversation of the complainant Ravi
asking accused Baljeet Singh Rathi to come to the office of
J.K. Properties, which was allegedly recorded through DVR by
putting the mobile phone of complainant Ravi on speaker
mode, does not find mention in said recording or as to how
the transcription got erased or deleted from Q1.
28.03 Ld. Counsel has further pointed out regarding
procedural flaws in the prosecution case especially with
regard to the marking of the complaint. It was vehemently
argued that no complaint number or stamp of CBI was
given/affixed on the complaint Ex. PW5/A on the date when
the same was allegedly filed by the complainants. Rather as
per the cross-examination of the Verification Officer PW13 Sh.
C.M.S. Negi, the complaint Ex. PW5/A was never marked to
him and rather it was directly handed over to him by the
complainants in the office of Superintendent of Police Mr. D.S.
Dhankar. Neither the witness PW13 was able to tell who had
written CO 29/2018 on Ex. P-7 nor CBI was able to produce
any record to substantiate that the complaint Ex. PW5/A was
given registration number 29/2018 in office record of CBI. It
was further contended that PW11 Mukesh Rawat as per his
own version had joined as a witness in some more cases of
CBI and being so, PW11 falls in the category of a stock
witness and it is a settled law that stock witness is not an
independent witness rather he is an interested witness and
his evidence is unreliable and untrustworthy.
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28.04 Ld. Counsel has also pointed out various
discrepancies in the prosecution case with regard to the
recording Q2 of trap proceedings. It was argued that as per
prosecution case, when the complainants entered in the office
of J.K. Properties on 19.7.2018, the office was lying vacant as
there was no one present in the office. Whereas, on the
contrary, it came on record from the recording Q2 that there
were number of other persons including the owner of J.K.
Properties namely Sh. Jitesh Jain, who were present at the
time of alleged recording of Q2.
28.05 Ld. Counsel has further pointed out that during
cross-examination of PW20 complainant Ravi, Q1 was played
from 2:31 to 2:35 for identification of voice of speaker of
conversation "Koi Aaya Tau Nahi" to which PW20 replied that
the said voice was of his brother Sh. Sachin but he stated
that he could not identify the other voice "Na Abhi Tau Koi
Nahi Aaya, Aap Baitho Mein 10 Minute Mein Aaya, Pul Ke
Niche se Phone Aaya Hai" (from point C to C in Ex. PW5/H).
The witness further deposed that at the time when he signed
Ex. PW5/H, he did not hear the said conversation from point
C to C nor he was able to identify the speaker of said voice
nor he had any idea as to where said conversation was
recorded or took place. Ld. Defence Counsel contended that
in the the transcript of Q1, which is available on record as Ex.
PW5/H, the voice "Koi Aaya Tau Nahi" has been attributed to
Ravi whereas, PW20 Ravi in his cross examination attributed
said voice to his brother Sachin i.e. PW5.
28.06 Ld. Counsel also pointed out certain
discrepancies in the statement of independent witness Sh.
Akshay Jain i.e. PW17. It was argued that from the
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telephonic conversation dated 18.7.2018 between the
complainant and the accused, he had come to know that they
(Trap Team) had to visit J.K. Properties. But, said witness
upon being confronted with the recording of Q1 admitted that
no such fact is mentioned in the conversation Q1. Further as
per the version of PW17, when complainants Ravi and Sachin
entered the office of J.K. Properties on 18.7.2018, one person
was already present there whom he had seen coming out
from the office. Further, he admitted that he had not seen or
heard accused Baljeet Singh Rathi demanding or accepting
bribe amount from the complainants on 19.7.2018 nor he
could identify the voice of Baljeet Singh Rathi in the recorded
conversation because, it were the complainants Ravi and
Sachin who told him that the person speaking from the other
side in the telephonic conversation was Baljeet Singh Rathi.
Ld. Counsel argued that in the background of said testimony,
it is clear that PW17 was not personally aware about the
voice of accused Baljeet Singh Rathi.
28.07 The defence counsel also drew attention of the
court on the technical flaws in investigation by pointing out to
the testimony of PW19 where he stated that no handing over
or taking over memo was prepared at the time when
investigation was handed over to him by Inspector H.V. Attri.
It is vehemently urged that the entire investigation was done
without any authority which is evident from the facts that
neither the complaint was assigned any number nor it
mentions the name of the officer who assigned it for
verification to Inspector C.M.S. Negi nor even any handing
over or taking over memo was prepared at the time when
investigation was taken over by the new IO Inspector Raj
Kumar/PW19.
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Analysis of the material by the Court:
29. It is one of the fundamental principles of
criminal jurisprudence that an accused is presumed to be
innocent till he is proved to be guilty. It is equally well
settled that suspicion howsoever strong can never take the
place of proof. There is indeed a long distance between
accused 'may have committed the offence' and 'must have
committed the offence' which must be traversed by the
prosecution by adducing reliable and cogent evidence.
Presumption of innocence has been recognized as a human
right which cannot be washed away. Thus the prosecution
has to establish all essential of charge framed to allay this
presumption of innocence. Reliance in this regard has been
placed on the judgment in Kailash Gour v. State of Assam
2012 (1) LR C (SC).
30. In the same very judgment in Kailash Gour v.
State of Assam (Supra), Hon'ble Apex Court also referred to
Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble
(2003) 7 SCC 749 wherein, the Hon'ble Apex Court
discussed as to what all should be taken into consideration
and what should be the approach of trial court in criminal trial
and the court observed as under:
"The Courts exist for doing justice to the persons
who are affected. The trial/first appellate courts
cannot get swayed by abstract technicalities and
close their eyes to factors which need to be
positively probed and noticed. The court is not
merely to act as a tape recorder recording evidence,
overlooking the object of trial i.e. to get at the
truth, and oblivious to the active role to be played
for which there is not only ample scope but
sufficient powers conferred under the Code. It has
a greater duty and responsibility i.e. to render
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justice in a case where the role of the prosecuting
agency itself is put in issue.'
31. Evidence is the only way to prove or disprove
anything and oral testimony apart from the documentary
evidence are the ways through which evidence is brought on
record. Where oral testimony is relied upon, then the
credibility of the witnesses becomes very important. It is to
be seen whether the witnesses are trustworthy, reliable,
narrate factual position in a proper way, truthful and that he
or she is not irresponsible or reckless or that he or she has no
mala fides, ulterior motive in deposing a particular fact for or
against a particular person or a particular act or incident.
Thus, the oral evidence has to undergo this acid test.
32. In the instant case, one of the foremost
contention raised by the defence to challenge the credibility
of prosecution case is that a few months before the alleged
incident, complainants' had threatened the accused for
implicating him in a false case because, they were having
grudges against the accused as he did not allow them to
execute their nefarious designs to encroach upon the
government land and also demolished the illegal
encroachment carried out by them on demise land and in that
regard, not only a complaint was registered against
complainant Sachin and his associates in DDA, but a
complaint with police was also lodged against threat of false
implication extended by complainants to accused. It is argued
that on the date of alleged incident complainants did not have
the physical possession of the demise land and even as on
date, the demise land is in possession of DDA.
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33. In this regard, attention was drawn to the
judgment of Hon'ble High Court in Ramjas Foundation Vs.
Union of India in W.P(C)6674/2015 decided on
22.08.2017, which is available on record as Ex. PW15/L. Ld.
Defence Counsel Mr. Hitendra Kapoor has argued that on the
basis of said judgment complainants were basing their claim
to raise construction on the demise land saying that vide said
judgment, Ramjas Foundation was held to be the owner of
entire land of 651 Bighas in revenue estate of Village-
Sandhora Khurd, where the demise land is also situated. It
was argued that in said case in W.P(C)6674/2015, a
contention was raised by Ramjas Foundation, who as per
prosecution case is the owner of demise land that, out of 651
Bighas of acquired land, physical possession of only 87
Bighas 13 Biswas was taken by the government while in
respect of remaining land of 563 Bighas 07 Biswas, only
symbolic possession was taken on as-is-where basis but, said
contention was categorically rejected by the Hon'ble High
Court.
34. I have carefully perused the above mentioned
judgment placed on record by the prosecution as Ex. PW15/L.
Perusal of said judgment shows that the aforementioned land
of Ramjas Foundation in revenue estate of Village-Sandhora
Khurd (now known as Anand Parbat), was notified for
acquisition by the appropriate government under Land
Acquisition Act,1894. Vide said Writ Petition, Ramjas
Foundation approached Hon'ble High Court for seeking the
relief that by virtue of Section 24(2) of Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation and Settlement Act, 2013, the acquisition of
aforementioned land is deemed to have been lapsed because,
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physical possession of the land was never taken and the land
continues to remain a private land and has been in use,
occupation and possession of the Ramjas Foundation. In para
13 of said judgment, the Hon'ble High Court observed that
for the applicability of Section 24(2) of the Act, two
conditions need to be satisfied i.e the award must have been
made 5 years or more prior to the commencement of the Act
and that either compensation has not been paid or physical
possession of the land has not been taken by the respondent.
The Hon'ble High court was satisfied on fulfillment of both the above conditions as the award was held to have been passed more than 5 years prior to commencement of the Act and compensation was held to have never been tendered or offered and therefore, not paid.
35. Careful perusal of the judgment Ex. PW15/L however, shows that the benefit of Section 24(2) was not extended on account of non-handing over of physical possession of the acquired land. Indeed in para 20 of the judgment, it was held that "In the present case, actual possession was, no doubt, taken. The petitioners' argument that possession taken, was not of the whole, but rather only a portion of the lands, is insubstantial." In the light of said observation, it is quite clear that as on the date of said judgment, Ramjas foundation was not having the possession of said land and the physical possession of entire land vested in the government. In said circumstances, the stance taken by the defence that complainants being not in physical possession of demise land, did not have any right to raise any construction on the demise land is found to be true and valid.
36. Further, during trial, prosecution has examined CC No. 179/2019 CBI v. Baljeet Singh Rathi (Date 11.7.2023) Page no. 64 of 103 Naib Tehsildar of DDA, Promod Singh as PW14. He deposed that as per DDA record Ex. PW8/A (D-9), the land in Khasra no. 344 in Village Sadhora Khurd behind old building of Police Station Anand Parbat is the government land under the control of DDA and same was vacant and encroached upon by the private persons. PW14 further deposed that as on 02.04.2018, accused Baljeet Singh Rathi was posted as Kanoongo, DDA for protection of said land and on that day, vide Ex PW8/B, Baljeet Singh Rathi had reported regarding encroachment made by some private persons namely Sachin {present complainant}, Ashok {complainant's father} and Ravinder on said land and he also filled up the demolition performa Ex. PW14/A1 bearing his (accused's) signature, signature of PW14 as well as of other signatories, namely Assistant Director Rakesh Kumar, Deputy Director Suresh Kumar, Director N.B.Maini and Principal Commissioner at point A,B,C,D and F respectively. The witness PW14 also proved on record the checklist for demolition dated 03.04.2018 as Ex. PW14/A2 and deposed that same was prepared by accused Baljeet Singh Rathi and after signature of aforementioned persons, the file was approved for demolition programme by the competent authority and sent to Chief Engineer, North Zone of DDA as well as Executive Engineer, Western Division-05 for carrying out demolition programme.
37. PW14 further deposed vide demolition diary dated 28.5.2018 Ex. PW14/B1, demolition programme was carried out on 28.5.2018 under the supervision of the then Executive Engineer and at the time of demolition, security guard Sh. Balram Chaudhary was also present. PW-14 further deposed that on 01.6.2018, Deputy Director sent the file Ex.
CC No. 179/2019 CBI v. Baljeet Singh Rathi (Date 11.7.2023) Page no. 65 of 103 PW14/A3 to Assistant Director Ravinder Kumar Nagpal for noting down the re-claimed land. PW14 further deposed that file bearing No. F7(01)/16/LM/WZ/DDA Ex. PW14/A4 was his office file. He further deposed that after demolition of the aforesaid site on 28.5.2018, the fencing work of re-claimed land was started in the supervision of the then Executive Engineer, Western Division-05, which was stopped by the private persons as they did not allow him to fence the aforesaid land. The witness testified further that as per letter bearing No. F7(01)/16/LM WZ DDA/208 dated 12.6.2018 Ex. PW14/A5 addressed to SHO, PS Anand Parbat, the then Deputy Director Sh. Suresh Kumar and Assistant Engineer Sh. Jeet Singh had reported in their office that the encroachers did not allow the contractor to do the fencing work and also made them run away from the site and in that regard, Deputy Director sent said complaint Ex. PW14/A5 to the SHO for taking necessary action against the encroachers. He further deposed that as revenue records of DDA were maintained by khasra number, therefore, as per their record, DDA had not assigned any number to the plots situated in Khasra No. 344. He deposed that vide production-cum- seizure memo dated 06.8.2018 Ex. PW14/A6, original file Ex. PW14/A4 was seized from him by the CBI Inspector.
38. With regard to above action taken by DDA against illegal encroachment on DDA land, it is further necessary to refer to the testimony of Security Guard, Balram Chaudhary who has been examined as PW9. As per his version, in the year 2018, while he was working in the area of Sadhora Khurd, he had filed a complaint dated 02.04.2018 Ex. PW9/A to Deputy Director in respect of encroachment made by Sachin, Ashok and Ravinder Kumar at Village CC No. 179/2019 CBI v. Baljeet Singh Rathi (Date 11.7.2023) Page no. 66 of 103 Shadhora Khurd and same was marked to the accused. He further deposed that he made a hand written complaint dated 27.07.2018 to SHO, PS Anand Parbat (ExPW9/DA put to PW9 by the defence during his cross examination) as is also mentioned in Ex. PW9/B in file no. F-7(01)16/LM/WZ/DDA. Ex. PW9/B is the complaint made by PW9 to Deputy Director in respect of encroachment made by Mr. Sachin, Mr. Ashok and Mr. Ravinder Kumar.
39. Here, it is also pertinent to refer to complaint Ex. PW9/DB which is the photocopy of a complaint dated 27.02.2018. The said complaint was put to PW9 during his cross examination and he admitted that said complaint Ex. PW9/DB was filed by him to Deputy Director, West Zone, DDA as he (PW9) and Kanoongo Baljeet Singh Rathi were threatened by the illegal encroachers Sachin and his associates that in case they were deterred in their designs to encroach upon said land behind Anand Parbat Police Station then they would implicate them (Balram Chaudhary and Baljeet Singh Rathi) in some false cases. I have perused the complaint Ex. PW9/DB, which shows that said complaint was filed by PW9 Security Guard, Balram Chaudhary after he and accused Baljeet Singh Rathi had visited the demise land on 27.02.2018, as they were threatened of their implication in some false case by the encroachers Sachin, Ashok and Ravinder if they (PW9 and accused) would venture to remove the illegal encroachment on the demise land.
40. In the background of aforementioned circumstances, it is quite clear that the although the title of said land in Khasra no. 344 in Village Sadhora Khurd behind old building of Police Station Anand Parbat, vested in Ramjas CC No. 179/2019 CBI v. Baljeet Singh Rathi (Date 11.7.2023) Page no. 67 of 103 Foundation but, the physical possession of said land was with the government/DDA and even the licensee of said land namely Vikas Arya (PW4) in whose favour Ramjas foundation had executed a license deed in respect of said land, admitted in his cross examination dated 19.092019 that he had never handed over the physical possession of said land in favour of his GPA holder Sachin Kumar nor he ever authorized Sachin or Ravi to raise any construction on the demise land.
41. Now, the vital question that arises is whether this fact that the demise land was a government land or that complainants were never in possession of said land or that they had indeed attempted to encroach upon said land illegally, can be ground to outrightly reject the prosecution case. In my considered view this can not be a sole ground to doubt the prosecution story. We can not ignore the fact that usually favours are offered for bribe for allowing some illegal act to take place because, for enforcement of legal rights, people always have a choice to knock at the doors of the court or to take a legal recourse. But certainly, this court is required to take greater caution and care to check the veracity and truthfulness of entire material brought on record by the prosecution in support of its case especially in the aforementioned background of the case when in February, 2018, i.e few months prior to the alleged incident, accused Baljeet Singh and Security Guard Balram Chaudhary i.e PW9 were extended threat by the complainant Sachin for their false implication after they removed the illegal structure raised by the complainant on the demise land.
42. In this context, I may also refer to the judgment of Hon,ble Bombay High Court in Ravindra CC No. 179/2019 CBI v. Baljeet Singh Rathi (Date 11.7.2023) Page no. 68 of 103 Mahadeo Kothamkar Vs. The State of Maharashtra in Crl. Appeal No. 1152 of 2004 wherein it was held that in trap cases, character of complainant assumes importance and where complainant's own integrity is found doubtful, then courts have to be more careful in scrutinizing his evidence. The relevant para of the judgment is reproduced as under:-
In appreciating evidence in trap cases, the character of the complainant assumes importance. The judicial pronouncements have recognized that there are various types of complainants. There are some complainants who basically want some favour from a public servant illegally and because of the refusal of the public servant to oblige him, decide to lodge a complaint against him. There are other types of complainants whose genuine and legitimate work is unnecessarily held up by a public servant with the object of obtaining illegal gratification from such complainants. In this case, the complainant, admittedly, being a person who had acted contrary to law and who faced the danger of inviting action by the local authorities avk 10/23 908-APPEAL- 1152-2004-J.doc against the unauthorized construction work carried out by him, his evidence needs to be scrutinized with due care.
43. The character of the complainant has been questioned here too. The defence Counsel has seriously challenged the credibility of the complainants and asserted that their credentials are not above board as they are the land grabbers of the area who had made various attempts to illegally encroach upon the government land and there is plethora of evidence in this regard. It was vehemently argued that a false complaint has been filed by the complainants against the accused because the accused while performing his official duties had filed complaints against them for attempting to encroach upon the DDA land and said complaints are part of Ex. PW8/A. CC No. 179/2019 CBI v. Baljeet Singh Rathi (Date 11.7.2023) Page no. 69 of 103
44. To my mind, the above circumstances of the case, may give rise to a motive for the complainants against the accused to falsely implicate him whereas, motive with accused to book complainants in the false case of illegal encroachment has not surfaced. In the background of these circumstances, the possibility of the complaint being motivated and entering in the realm of malafide complaint can not be ruled out and it may also bring the complainants in the category of interested witnesses whose testimony without corroboration from some independent source cannot be relied upon.
45. Let us now advert to the various inconsistencies pointed out by the defence counsel in the testimony of prosecution witnesses, which are urged to be material and sufficient for the court to discard them as unreliable and untrustworthy. In this regard, reliance has been placed on the judgment in Suraj Mal v. State (Delhi Administration) AIR 1979 SC 1408.
46. In a case under section 7 and 13 (1) (d) and 13 (1) (2) of Prevention of Corruption Act, the CBI is under obligation to essentially establish the fact that the suspect official has demanded and obtained or attempted to obtain bribe with a purpose and motive. Thus, the CBI was duty bound to establish that there was a demand of bribe by the accused and that the bribe was accepted by the accused. On this count, apart from the testimony of the complainants, statements of two independent witnesses and verification officer PW13, TLO PW15 and some other CBI officials have been relied upon. So far as the facts of the instant case are concerned, the alleged demand has figured CC No. 179/2019 CBI v. Baljeet Singh Rathi (Date 11.7.2023) Page no. 70 of 103 at three stages. First when two weeks prior to the alleged incident i.e in the first week of July, 2018, the accused allegedly met the complainants in the office of J.K. Properties and raised demand of Rs.10 lakhs, pursuant to which complainants reported the matter with the CBI on 18.07.2018 through their complaint Ex.PW5/A. The second aspect of demand emerged during the verification process on the same very date of complaint i.e on 18.07.2018, when the complainants namely Sachin Kumar/PW5 and Ravi/PW20 alongwith independent witness Akshay Jain PW17 went to meet the accused in the office of J.K. Properties where the demand of Rs.8,00,000/- was initially made by the accused which was ultimately negotiated down to a sum of Rs.6,00,000/-, out of which Rs.2,00,000/- was agreed to be paid to the accused on the next day i.e on 19.07.2018. This process verified the complaint and laid the basis for the registration of the case against the accused. The demand which was there during the trap proceedings was the third shape and stage of demand in the instant case. And at every stage, it was important to ascertain and establish the existence of demand of bribe.
47. In this context, CBI has the testimony of the complainant, independent witnesses and the recordings made. Both during verification process as well as trap proceeding, as can be seen from the transcripts of the talks between accused and the complainants, a clearcut reflection is there that a demand was made by the accused although at both the said occasions, none of the independent witness was present inside the office of J.K.Properties where the demand was allegedly made as they purposely remained outside the office of J.K.Properties seemingly, because it was CC No. 179/2019 CBI v. Baljeet Singh Rathi (Date 11.7.2023) Page no. 71 of 103 apprehended that accused may be reluctant or feel shy to demand or accept bribe in the presence of some stranger and would not like any third person to be a witness to what all transpired between him and the complainants. Testimony of complainants, independent witnesses who allegedly remained part of verification and trap proceedings and the transcript 'Q1' & 'Q2', thus, become relevant.
48. It is a settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters which do not affect the core of the case of the prosecution are required to be ignored. The credibility of witnesses should not be questioned on such trivial variations. The court should examine as to whether evidence, if read as a whole appears to have a ring of truth or not. Thus, where it is found in totality that the evidence is aboveboard, then the court is not supposed to give undue importance to omissions, contradictions and discrepancies especially those which do not go to the root of the matter or shake the basic version of the prosecution witness. Thus, the court must read the evidence of a witness as a whole, and consider the case in light of the entirety of the circumstances, ignoring the minor discrepancies with respect to trivial matters, which do not affect the core of the case of the prosecution. The case in hand is also not free from variations in the narrative but what is to be seen is as to how far these variations in the narrative are vital and important so as to disbelieve the entire case, as has been contended by Ld. Counsel for the accused.
49. I have carefully perused the testimony of both the complainants namely Sachin Kumar and Ravi. Broadly, CC No. 179/2019 CBI v. Baljeet Singh Rathi (Date 11.7.2023) Page no. 72 of 103 their testimonies on the sequence of events on both the aspects of verification and trap proceedings are more or less in consonance with each other and no major inconsistencies in the sequence of events or manner of execution of verification and trap proceedings are found in their versions. But, there are serious discrepancies in their versions on some other aspects of the matter such as regarding alleged call made by complainant Sachin to accused after reaching the the office of J.K. Properties on 19.07.2018, identification of voices of the speakers in the recorded conversation of verification and trap, presence of Jitesh jain in the office at the time when they entered in the office of J.K. Properties on 19.07.2018 etc.
50. As per the version of Ravi/PW20, after reaching the office of J.K. Properties on 19.07.2018, his brother Sachin had called the accused on his phone and informed him about their arrival in said office, but upon being asked, PW20 was unable to point out any such conversation from the transcription of Q-2 i.e Ex. PW5/H. As per his (PW20) own version, on 19.07.2018, he and his brother Sachin had entered the office of J.K. Properties together and Sachin was carrying the DVR which was already switched on, which means that even the aforementioned call made to accused by complainant Sachin must have also been recorded in the DVR but despite that, their is no mention of any such call in the transcript. Further in the transcript of Q-1 (recorded conversation of verification dated 18.7.2018) Ex.PW5/G, the conversation "koi aaya to nahi" in file 180791_0444 has been attributed to complainant Ravi, but Ravi who has been examined as PW20, failed to identify his own voice and said that the voice in said conversation is that of his brother CC No. 179/2019 CBI v. Baljeet Singh Rathi (Date 11.7.2023) Page no. 73 of 103 Sachin. PW20 also failed to identify the other voice who replied to above question by saying that "na abhi tau koi nahi aaya, aap baitho mein das minute mein aaya pul ke neeche se phone aaya hai". PW20 instead said that he did not know with whom his brother was talking in said conversation. Here, it is quite surprising that PW20, who had visited the office of J.K. Properties on 18.07.2018 with his brother, and who himself was carrying the DVR in his pocket on that day, has attributed said conversation "koi aaya to nahi" in file 180791_0444 to his brother whereas, in the transcription the same has been attributed to Ravi.
51. It is pertinent to note that as per prosecution case, entire conversation of Q-1 and Q-2 were played from the investigation copy of Q-1 & Q-2 in the presence of both the complainants Ravi and Sachin as well as the independent witnesses Akshay Jain and Mukesh Rawat in CBI office on 30.07.2018 and they all were handed over the rough transcription of said conversation prepared by the IO and were made to listen the conversation and after verification of the voices of the speakers from complainants and the independent witness, certain corrections were made in the rough transcription and a final transcription Ex PW5/G and Ex. PW5/H were prepared and same were got signed from both the complainants as well as the respective independent witnesses of said conversations. But, PW20 in his cross examination denied to have heard the recording of said conversation ExPW5/G contained in Q-1 before putting his signature on the same. Again he tried to improve his version by saying that he had not heard the above mentioned portions of conversation of Q-1 before putting his signature on the same. He deposed further that he had identified all the CC No. 179/2019 CBI v. Baljeet Singh Rathi (Date 11.7.2023) Page no. 74 of 103 voices in the conversation of Q-1 at the time of preparation of transcript of the same but he did not remember if had identified aforementioned conversation confronted to him from file 180791_0444 between 02:31 to 02:35.
52. In his cross examination, PW20 also failed to identify the voice in the conversation from point 'B to B' and 'C to C' attributed to some unknown person in file 180720_0401 in Ex. PW5/H (transcription of recorded conversation of Q-2). He however, stated that said conversation was between his brother Sachin and some other person whose voice he did not identify. He further stated that he did not even know where said conversation 'B to B' and 'C to C' was recorded nor did he know if he (PW20) was also present at the place where said conversation was recorded. He further denied to have heard said portion 'B to B' and 'C to C' at the time when he had signed Ex. PW5/H. He deposed further that IO had not asked him to identify the voice from portion A to A and B to B of Ex. PW5/G and Ex. PW5/H. The said version of PW20 leads to two possible inferences that either the said recording of Q-2 or its transcription have been tempered with or manipulated subsequently or the complainant Ravi was never made to hear said recording Q-2 before taking his signature on its transcription Ex. PW5/H.
53. Now coming to the testimony of complainant Sachin Kumar PW5. As per his version, neither Akshay Jain nor Mukesh Rawat ever saw Baljeet Singh Rathi demanding or accepting bribe at any point of time because, they both remained outside the office of J.K.Properties which had tinted glass through which view from outside was not possible. It is the admitted case of prosecution that none of the CC No. 179/2019 CBI v. Baljeet Singh Rathi (Date 11.7.2023) Page no. 75 of 103 independent witnesses were accompanying the complainants either at the time of verification when the alleged demand for bribe was made by accused or even at the time of trap when accused allegedly demanded and accepted bribe from the complainants in the office of J.K.Properties.
54. In such a scenario, will it be enough compliance of CBI manual which mandates that in trap cases, some independent witness has to be joined both at the time of verification and trap. However, a contention has been raised by the Public Prosecutor that Manuals are just a compilation of guidelines and the Court is governed by Statutes. It was contended that the Manual not being a Statute lacks the element of enforceability so far as the Court proceedings are concerned. CBI Crime Manual is for the guidance of CBI officials and in any case an inhouse publication, therefore even if no strict compliance of the CBI Crime Manual is there, still it is not going to affect the case of the CBI as long as the statutory compliances are there.
55. The purpose of requirement for joining independent witnesses in trap cases is to ward off any kind of suspicion over the proceedings. CBI invariably joins independent public witnesses so that the sanctity of the proceedings cannot be doubted. In the instant case, though two independent witnesses were joined at the time of trap proceedings but, they are not privy to the alleged demand or acceptance of bribe as they were made to stand outside the office of J.K.Properties whereas, the alleged transaction of bribe took place inside office, as such they did not see the accused demanding or accepting bribe from the complainants.
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56. Although, CBI Crime Manual is for the guidance of CBI officials but, some of the guidelines have been incorporated pursuant to observations and directions contained in the judgments of the superior courts, thus a kind of sanctity and enforceability is there and CBI is expected to follow the same unless prevented by some special circumstances. On this parameters, CBI has no plausible answer for non-compliance of guidelines except that the complainants were having the apprehension that in the presence of some stranger, the accused may not demand or accept the bribe. But such possibility is always there in all cases of trap and could not be a reason to dispense with said requirement of joining a shadow witness. Placing such witnesses with the police members of trap team just to witness the procedural formalities of pre-trap or post-trap proceedings is certainly not the purpose for incorporating such guideline in the CBI Crime Manual. Keeping such witnesses away from viewing or hearing the actual transaction of demand and acceptance of bribe, in my considered view would reduce their role merely as ornamental.
57. I have carefully gone through the judgment of Hon'ble Apex Court in Mukut Bihari & Ors. vs State of Rajasthan (2012)11 SCC642, on which strong reliance has been placed by CBI. Before refering to the point urged by Ld Prosecutor based on this judgment, I may first refer to the observation of Hon'ble Court in para 8 of said judgment which reads as under:-
'The law on the issue is well settled that demand of illegal gratification is sine qua non for CC No. 179/2019 CBI v. Baljeet Singh Rathi (Date 11.7.2023) Page no. 77 of 103 constituting an offence under the Act 1988. Mere recovery of tainted money is not sufficient to convict the accused, when the substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as bribe. Mere receipt of amount by the accused is not sufficient to fasten the guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification, but the burden rests on the accused to displace the statutory presumption raised under Section 20 of the Act 1988, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the Act, 1988. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness and in a proper case the court may look for independent corroboration before convicting the accused person."
58. There is absolutely no fight to the above proposition of law laid down in said judgment. But even in the aforementioned judgment, after referring to its various previous decisions, the Hon'ble Court was of the view that "it is always desirable to have a shadow witness in the trap party but mere absence of such a witness would not vitiate the whole proceedings". In said case, the court did not insist for corroboration from shadow witness as the accused failed to bring anything on record to show any reason/motive on the CC No. 179/2019 CBI v. Baljeet Singh Rathi (Date 11.7.2023) Page no. 78 of 103 part of complainant to falsely enrope the accused/appellants. Whereas, in the instant case, there is ample evidence adduced by the prosecution itself to show that possession of demise land was not with the complainants on the date of alleged incident and rather the physical possession of said land was with the DDA and accused who was Kanoongo of DDA, had booked complainant Sachin and his associates several times for their illegal attempts to encroach upon the demise land.
59. Furthermore, a few months before the alleged incident, accused had removed the illegal encroachment/construction carried out by the complainants on said land and also brought this fact into the knowledge of his superiors and same is evident from the record brought by PW14 Sh. Promod Singh, the Naib Tehsildar of DDA as well as from the version of PW9, the Security Guard Balram Chaudhary, which is already discussed in the preceeding paras of this judgment. In the light of said circumstances, there is every possibility of complainants having grudges against the accused and thus, giving motive to them to implicate him in a false case especially when in past, a complaint was also filed against them for having extended such threat to accused and security guard Balram Chaudhary for their false implication. In the background of said circumstances, the above judgment being distinguishable on facts is of no help to CBI.
60. As per prosecution case, the accused was caught red handed with the tainted money from the office of J.K.Properties, which belonged to complainants' friend Jitesh CC No. 179/2019 CBI v. Baljeet Singh Rathi (Date 11.7.2023) Page no. 79 of 103 Jain. Although in the examination in chief of PW5, there is no mention of any meeting of complainant with his friend Jitesh Jain in the office of J.K.Properties either on the date of verification on 18.07.2018 or on the date of trap on 19.07.2018. However in his cross-examination, PW5 revealed that he had called his friend Jitesh on 18.07.2018 and sought permission to use his office but when he reached the office of J.K. Properties on 18.07.2018, Jitesh Jain was not present. The office was found open when they reached there but he (PW5) did not know if anyone was present in the office at that time or even at the time when they left the office though the office was left unlocked. With regard to the incident of 19.07.2018, PW5 deposed that on 19.07.2018, he had met Jitesh Jain outside his office (J.K.Properties) at about 4pm and he told him(Jitesh Jain) that he would use his office for some meeting. At that time, PW5 was alone and thereafter, he (PW5) and Jitesh Jain kept sitting in his office for about 4-5 minutes and at that time no body else was there in the office as his brother Ravi also joined him in the office after 4-5 minutes of departure of Jitesh Jain from the office.
61. To check the veracity of complainant Sachin Kumar's version regarding Jitesh Jain having left the office of J.K.Properties 4-5 minutes prior to arrival of his brother, I may refer to Q-2 and its transcription Ex.PW5/H. The transcription of recorded conversation in file 180720_0401 reflects the conversation between Sachin Kumar with some unknown person from point A to A, B to B, D to D and C to C. After conversation from C to C to the effect "mein to mazak kar raha ... garmi wo hai na chip chip wali", Sachin Kumar CC No. 179/2019 CBI v. Baljeet Singh Rathi (Date 11.7.2023) Page no. 80 of 103 replied " arey bada bura haal hai bhai wo aane wala hai, aapko dekhkar baat nahi karega sorry yaar, thodi na, lo aa hi gai" and immediately therafter, he (Sachin Kumar i.e PW5) said "Namaskar Guru Ji". Then Baljeet Singh i.e the accused says "kya haal hai". The content and sequence of aforementioned conversation of file no. 180720_0401 clearly shows that at the time when the accused allegedly entered the office of J.K.Properties, one more person referred as ''Unknown Person' in the transcript, was already present with the complainant Sachin Kumar whom he (Sachin Kumar) requested to leave as accused was expected to come and from the conversation "wo aane wala hai, aapko dekhkar baat nahi karega sorry yaar, thodi na, lo aa hi gai" it appears that said other person was already knowing as to who was expected to come and what was the purpose of said meeting of the complainant and said person left the office only after arrival of accused. The subsequent conversation of said file 180720_0401 also shows that complainant Ravi (PW20) came to the office of J.K.Properties after few minutes of arrival of accused Baljeet Singh, which is contrary to Ravi's own version that he and his brother Sachin together entered the office of J.K.Properties on 19.07.2018.
62. From the aforementioned deposition of PW5 and the conversation in file 180720_0401 of transcription Ex.PW5/H, it is quite clear that the said unknown person in above conversation, was none other than Jitesh Jain, whose voice complainant Sachin was expected to identify at the time of preparation of transcription Ex.PW5/H, which he did not identify for the reasons best known to him. As per voice identification cum transcription memo Ex.PW5/F, both the CC No. 179/2019 CBI v. Baljeet Singh Rathi (Date 11.7.2023) Page no. 81 of 103 transcription Ex.PW5/G (pertaining to Q-1 dated 18.07.2018) and Ex.PW5/H (pertaining to Q-2 dated 19.07.2018) were prepared on 30.07.2018. It is highly unlikely that just after 10 days of trap proceedings, complainant Sachin forgot with whom he had talked in the conversation C to C contained in file 180720_0401 of Ex.PW5/H, which allegedly took place in the office of J.K.Properties on 19.07.2018.
63. As per the testimony of Jitesh Jain, who has been examined in this case as PW7, he was running a business of sale and purchase of properties from ground floor of his residence at 453, Upper Anand Parbat, Gali No.10, Old Police Station, Delhi. Complainants Sachin and Ravi were his childhood friends, who during the period from April to July 2018 used his office 5-6 times for holding their meetings but, he was never present during those meetings therefore, he did not know the purpose of such meetings. Hence, as far as complainants' testimony that they had used office of J.K. Properties for the alleged meetings with accused during April to July, 2018 is concerned, the same does find support from the version of PW7. But, PW7 categorically denied having told IO in his statement under section 161 CrPC about the exact dates or times of such visits of Sachin and Ravi in his office or about his having met Sachin and Ravi in his office on 18.07.2018. He adhered to his stand despite being confronted with the portion B to B and C to C of his statement under section 161 CrPC Ex.PW7/DA, where a stand contrary to his above deposition was recorded.
64. It is also pertinent to note here that as per recovery memo dated 19/20.07.2018 Ex.PW5/E1, the CBI CC No. 179/2019 CBI v. Baljeet Singh Rathi (Date 11.7.2023) Page no. 82 of 103 team had reached the office of J.K.Properties at about 1555 Hrs (3.55pm) and thereafter, complainants entered in said office where accused also arrived just after few minutes and few minutes thereafter, CBI team raided the office and apprehended the accused red handed. Thereafter, the entire post trap proceeding as recorded in the recovery memo Ex.PW5/E1, were conducted in the office of J.K. Properties by CBI team till 0130 Hrs (midnight) of 20.07.2018. In said circumstances, it is difficult to believe that the owner of said office Jitesh Jain, who was residing just on the first of the very same buliding i.e just above the said office, remained unaware about the entire proceeding going on in his office from 1555 Hrs to 0130 Hrs i.e. from 3:55 pm to 1:30 am of 19/20.07.2018, that too when there were as many as 12 people who were part of trap team. This is also surprising to note that as per PW7, he had never left his office open throughout the night as he used to lock his office by 7:00/7:30pm. In said circumstances, absence of any knowledge on the part Jitesh Jain about any such meeting of complaint or about the raid of CBI team in his office on 19.07.2018 creates a serious doubt on the truthfulness of prosecution story.
65. It will not be out of place to mention here that as per cross examination of PW20 Ravi, the complaint Ex. PW5/A was lodged at the instance of Vikas Arya, the licensee of the demise land with whom he had discussed the matter and it was Vikas Arya who suggested him to lodge a complaint against the accused. But, Vikas Arya/PW4, in his cross examination feigned complete ignorance about any demolition carried out by DDA on the plot in question. As per his (PW4's) version, he had never handed over the physical CC No. 179/2019 CBI v. Baljeet Singh Rathi (Date 11.7.2023) Page no. 83 of 103 possession of demise land to Sachin Kumar nor he (PW4) was aware that the demise land was acquired by Union of India or that its possession was taken by DDA. In said circumstances, the version of PW20 that Vikas Arya advised them to file a complaint against accused does not seem truthful.
66. The independent witness Akshay Jain/PW17 was joined both at the time of verification as well as the trap. As per his version, he had joined CBI investigation of this case on 18.07.2019, as per the instruction of his seniors. In CBI office, he met the complainants and Inspector C.M.S.Negi (PW13) introduced him with the complainants and also showed him their complaint Ex.PW5/A. His introductory voice was recorded in the blank memory card through a DVR. Then a call was made by Ravi from his mobile phone at the mobile phone of accused, which was recorded on said DVR by putting mobile phone of Ravi at speaker mode. On said call, accused desired to meet Ravi who told him that as he was in Noida and he would call accused after reaching Anand Parbat. Thereafter, PW17 with complainants and Verification Officer and some other CBI officials left for Anand Parbat. Further, as per his version, at the time of verification, Ravi and Sachin entered in the office of J.K.Properties while he remained outside said office and after sometime, he saw accused Baljeet Rathi (whom he correctly identified in the court) came on motorcycle and entered inside said office. Later on, he heard the accused demanding Rs.7 lacs in the conversation recorded in the DVR, which was returned to CBI officials by the complainant. The said demand was later reduced to Rs.6 out of which accused asked them to pay Rs.4lacs on 19.07.2018 but, the complainant told him that they would pay only Rs.2lacs on 19.07.2018.
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67. On 19.07.2018, PW17 again visited the CBI office as per the direction of his senior officers and on that day he also met independent witness Mukesh Rawat, who was also part of trap team. Rest of his examination-in-chief with regard demonstration of phenolphthalein powder, application of said powder on currency notes produced by complainants, noting of particulars of said GC notes under their signature, recording of introductory voices of both the independent witnesses in two new memory cards, search of complainants by Mukesh Rawat, instructions given to him and Mukesh Rawat by the TLO, calls exchanged between Sachin and accused after leaving the CBI office for trap and before arrival of accused in the office of J.K.Properties, apprehension of accused, recovery of tainted money from the accused, and the sequence and manner of recording of post trap proceedings, is almost on the same lines as deposed by complainants.
68. PW17 however, faltered at one point as he initially deposed that tainted money from the person of accused was recovered by Mukesh Rawat but, on being put a leading question by the prosecutor, he deposed that he himself recovered the tainted money from the possession of accused and due to lapse of time, he forgot to recollect the same correctly. I do not find any merit in the defence objection that no leading question can be put to the witness by the prosecutor without declaring the witness hostile. In my considered view, testimony of even a hostile witness, to the extent it supports the case of the party examining him, can very well be considered and relied upon by the court. There is no bar on the court to take into consideration the deposition CC No. 179/2019 CBI v. Baljeet Singh Rathi (Date 11.7.2023) Page no. 85 of 103 even of a hostile witness provided the same is in consonance with the case of the prosecution, and is found to be reliable on careful judicial scrutiny.
69. The law is now well settled that even if a witness does not wholly support the case of the prosecution his testimony is not to be discarded altogether. It is the consistent view taken by Apex Court that the fact that the witness has been declared hostile at the instance of public prosecutor and was allowed to be cross-examined furnishes no justification for rejecting en block the evidence of the witness. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful judicial scrutiny.
70. But, as already pointed out above, the transcription of the recorded conversation of 19.07.2018 i.e Ex PW5/H has revealed that some person other the complainants was also present inside the office before the arrival of accused. But, as per independent witness PW17 Sh. Akshay Jain, even on 18.07.2018, one person was already present in the office of J.K.Properties, whom he had seen coming out of said office after the complainants entered in said office. In his cross examination dated 08.10.2021, he specifically deposed that he had not seen any person entering said office alongwith Sachin or Ravi on 19.07.2018 but, in later part of his cross examination, in an answer to the question that on 19.07.2018, at the time when Sachin and Ravi allegedly entered the office of J.K.Properties, who else was already present in said office, PW17 replied that one CC No. 179/2019 CBI v. Baljeet Singh Rathi (Date 11.7.2023) Page no. 86 of 103 person had come out of said office after Sachin and Ravi entered the same, but he did not know who was said person. Hence, the version of complainant that he had met his friend Jitesh jain outside the office of J.K.Properties on 19.07.2018 or that thereafter, he sat with him in said office before arrival of his brother Ravi, does not find any support from the deposition of PW17. As per PW17, said person was already present in the office and he came out of the office after Sachin and Ravi entered the office. But surprisingly, PW17 also came up with the deposition that he had not himself seen Sachin and Ravi entering said office together and that he came to know about said fact only from the other independent witness Sh. Mukesh Rawat.
71. Now coming to the testimony of Sh. Mukesh Rawat (PW-11), I may point out that said witness was joined in the investigation of this case only at the time of trap i.e. on 19.7.2018. As per his examination-in-chief, he was working as a Clerk in Bank of India, CGO Complex Branch and was deputed by his Branch Manager to report to CBI office on that day i.e. on 19.7.2018. He went to the office of CBI alongwith his colleague Sh. Akshay Jain. As per his version, in CBI office he met Inspector H.V. Attri who introduced them with the complainants Sh. Sachin and Sh. Ravi and also informed them about their complaint regarding the demand of bribe raised by accused Baljeet Singh Rathi. Demonstration qua trap proceeding was given to them by the trap team. The demonstration of phenolphthalein powder on the GC notes of Rs. 2 lakhs brought by the complainants was shown through Sh. Akshay Jain who was asked to take out the treated GC notes from his pocket (PW-11) and then, wash of his hands was taken in a colourless solution which turned pink.
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72. He deposed further that GC notes were again treated with said powder and after personal search of the complainant, said tainted money was put in the right side pant pocket of the complainant Sachin Kumar by Sh. Akshay Jain and the complainant was asked not to touch said bribe amount and to handover the same on the specific demand of accused Baljeet Singh Rathi. Thereafter, they left the office of CBI on 2:45 pm with the trap kit. On the way, they stopped near Naraina where Sh. Sachin made a call to accused Baljeet Singh Rathi and asked him about his whereabouts and the time till when he would be reaching at the office of friend of Sh. Sachin. At 3:30 pm, the entire trap team reached near police station where he (PW-11) Sh. Akshay Jain, Sh. Sachin, Sh. Ravi and one CBI official were dropped and from there they proceeded towards the shop of Sh. Sachin. He further deposed that Sh. Sachin and his brother went inside the office of J.K. Properties.
73. Perusal of the record shows that PW11 was also declared hostile at the end of his examination-in-chief recorded on 10.4.2019 and thereafter, Ld. Public Prosecutor sought permission from the court to cross-examine him on the ground that he was not deposing true and complete facts. On the subsequent date of 01.5.2019, the witness PW11 was cross-examined by Ld. Public Prosecutor and in said cross- examination after he was confronted with his statement u/s 161 CrPC, he supported the case of the prosecution and broadly deposed on the similar lines as deposed by the complainants and the other independent witness namely Sh. Akshay Jain.
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74. But, the version of PW11 became shaky in his cross-examination. PW11 in his cross-examination deposed that he remained outside the office of J.K. Properties and only complainants Sh. Sachin and Sh. Ravi entered the office and he was not aware as to who was present inside the office of J.K. Properties. He deposed further that he was briefed by CBI officials that while standing outside the office of J.K. Properties, he had to watch who was coming and going in the office and to wait for the signal of the complainants. He deposed further that he had not seen any transaction taking place between the complainants and the accused on 19.7.2018. Further in his cross-examination PW11 deposed that after reaching Anand Parbat Police Station, Sh. Sachin and Sh. Ravi both had gone together to the office of J.K. Properties and he had seen them going together to said office and at that time there was no other person present outside the office of J.K. Properties. The said deposition of PW11 is contrary to the version of complainant Sachin/PW5 that he had met his friend Sh. Jitesh Jain outside the office of J.K. Properties on 19.7.2018 or that he and Sh. Jitesh Jain sat in the office for 4-5 minutes or that Sh. Jitesh Jain left the office before arrival of Sh. Ravi.
75. As per PW11, both Ravi and Sachin had entered the office of J.K.Properties together. Rather PW11 specifically deposed in later part of his cross-examination dated 09.7.2019, that no person had met Ravi and Sachin till they entered the office of J.K.Properties and the office was visible to him from the place where he was standing. Surprisingly, the witness also deposed that he had not seen accused Baljeet Singh Rathi entering the office of J.K. CC No. 179/2019 CBI v. Baljeet Singh Rathi (Date 11.7.2023) Page no. 89 of 103 Properties on 19.7.2018. This statement of independent witness Mukesh Rawat that he did not see accused Baljeet Singh Rathi entering the office of J.K.Properties on 19.7.2018, is coming out of blue especially in the background of the fact that as per his own version, he was positioned outside the office with instructions to keep watch on the egress and ingress of any visitor in the office. In such a scenario, when he had not seen the accused entering the office on 19.7.2018, does it mean that accused was already present inside the office before the arrival of complainants but, it is nowhere the prosecution case. This statement hence, creates a serious doubt on the credibility of the prosecution case.
76. Here, it is pertinent to mention that witness PW11 Sh. Mukesh Rawat was examined on 09.7.2019, when his examination-in-chief was recorded at lengh by Ld. Sr. Public Prosecutor but at the end of examination, he was declared hostile. Ld. Public Prosecution however, started his cross-examination on the subsequent date i.e. on 01.5.2019, he cross-examined him only partly on that day. On 02.5.2019 and 28.5.2019, PW11 was recalled for his further cross-examination. Thereafter, on 09.7.2019, his cross- examination by Ld. Defence Counsel was done but since the PW11 was again re-examined by Ld. Public Prosecutor, his cross-examination by Ld. Defence Counsel was again recorded on 19.7.2019 and it is on that day, his cross- examination was concluded.
77. Careful scrutiny of entire examination-in-chief and cross-examination of PW11 shows that his examination CC No. 179/2019 CBI v. Baljeet Singh Rathi (Date 11.7.2023) Page no. 90 of 103 throughout remained topsy turvy and shaky. At different stages of his examination, he came up with different versions of the story. As such, even the version of PW11 does not inspire any confidence so as to render any support or corroboration to the version of complainants.
78. Now let us go through the electronic evidence upon which strong reliance has been placed by the prosecution. However, before taking up the electronic evidence, I may first deliberate upon some technical objections taken by the defence side relating to registration of the FIR. It is vehemently contended that the complaint dated 18.7.2018 which became the basis of the verification and subsequent registration of FIR, was not registered in consonance with the guidelines contained in CBI Crime Manual. Ld. Defence Counsel has argued that CBI has failed to place anything on record to show that said complaint which is available on record as Ex. PW5/A was ever registered in the record of CBI.
79. In order to correctly appreciate the above contention, I have carefully perused the said complaint Ex. PW5/A. Perusal of said document shows that there is neither any diary number given to said complaint nor it contains even the seal of the CBI. The verification memo Ex. PW5/B shows that the complaint dated 18.7.2018, which was verified vide said verification memo, was CO No. 29/2018 but, no such number finds mention on the aforementioned complaint Ex. PW5/A. The complaint merely bears signature of some officer who assigned said complaint for verification to Inspector C.M.S. Negi but, even the name of said officer who CC No. 179/2019 CBI v. Baljeet Singh Rathi (Date 11.7.2023) Page no. 91 of 103 assigned the same is not mentioned anywhere on the complaint. No manual or electronic record, if any, maintained at CBI office in which said complaint was allegedly registered vide aforementioned CO No. 29/2018 was ever produced before the court during the course of trial nor any witness deposed in this regard.
80. From the examination of the Verification Officer Inspector C.M.S. Negi who has been examined as PW13, it appears that said complaint was marked to him by Superintendent of Police, CBI Sh. D.S. Dhankar. In his cross- examination dated 17.10.2019, PW13 has deposed that complaint Ex. PW5/A was not marked to him but was simply handed over to him by the complainants in the office of SP D.S. Dhankar. He further deposed that CO No. 29/2019 (as mentioned in the verification memo) was ascertained by him from complaint section but, he did not know where was the complaint number recorded by the complaint section. Further he deposed that he was not aware about the procedure of registration or marking of the complaints.
81. Despite having already conducted verification of 4-5 more trap cases of CBI, the witness PW13 was surprisingly not knowing the procedure as to how the private complaints were filed in CBI. He did not have any idea whether complaint section used to give any specific complaint number, date or time on the complaint itself. In this regard, the attention of the court was drawn to Chapter 8 of CBI Manual (Crime), 2005 which mandates that no verification of any complaint shall be initiated except after it has been assigned a regular complaint number with the approval of CC No. 179/2019 CBI v. Baljeet Singh Rathi (Date 11.7.2023) Page no. 92 of 103 competent authority. Whereas, in the instant case, nothing has been placed on record to show that any temporary or regular number was given to the complaint Ex. PW5/A.
82. Now coming back to the electronic evidence. This set of evidence is the digital evidence which has been heavily relied upon by the CBI/prosecution. It is asserted often that man may lie but documents don't. The evidence relied upon is within the definition of documentary evidence. Digital evidence in the form of recordings on SD cards are also documentary evidence hence, more credible and therefore, can't be ignored. The assertion of the CBI is that the audio recordings are itself enough to establish the case and leaves no doubt about the complicity of the accused in demanding and accepting the bribe from the complainant to show favours to them by allowing them to raise construction on the demise land.
83. The contentions raised on the face of it are correct. The audio/ video recordings are documentary evidence and if aboveboard, then it should be believed and acted upon. The question to be looked into is whether the digital/technical evidence adduced on record, is above board. What has come in the evidence of the expert witness reflects that the digital evidence is also not free from it's own complications/technicalities in nature.
84. In the instant case, strong reliance has been placed by CBI on electronic evidence in the form of audio recording of the conversation Q1 and Q2 which are available on record as Ex. P-7 and Ex. P-8 respectively. In this regard, CC No. 179/2019 CBI v. Baljeet Singh Rathi (Date 11.7.2023) Page no. 93 of 103 prosecution has examined Dr. Subrat Kumar Chaudhary, the Senior Scientific Officer, Grade-II (Physics), CFSL. As per his examination, 5 sealed parcels, certificate of authority, specimen seal impression and photocopy of transcripts were received in their laboratory vide letter no. RC-DAI-2018- A0022/8894 dated 31.7.2018 sent by SP, CBI, ACB, New Delhi. As per the version of PW12, the seals of the parcels were intact and tallied with specimen seals. 4 separate micro SD Card, marked Ex. Q1, Ex. Q2, Ex. S1 and Ex. S2 were found on opening of respective parcels Q1, Q2, S1 and S2 whereas, upon opening parcel of DVR, one digital voice recorder of Sony Ex. DVR was found. He deposed that the said DVR was though functional and in working condition but the date and the time setting of the DVR was incorrect as there was gap of +12 hours from the current time. PW12 deposed that on examination of specimen voices contained in S1 and S2, the same were found tallying with the respective questioned voices contained in Q1 and Q2 and no form of tampering was detected in any of the recordings. Further that the details of examination procedure, reasoning and results are contained in his report CFSL-2018/P-831 dated 10.9.2018 (D-24) Ex. PW12/A.
85. It has been vehemently contended on behalf of the accused that said forensic voice examination report Ex. PW12/A relating to the audio recordings of the verification and trap proceedings is a false and fabricated document. It is contended that the entire recording of Q1 and Q2 contain inaudible and non-perceivable voices and such voices could not be considered for auditory examination or spectrographic examination/analysis. Further there was a time gap of +12 hours in the time setting of the DVR which also creates a CC No. 179/2019 CBI v. Baljeet Singh Rathi (Date 11.7.2023) Page no. 94 of 103 serious doubt on the genuineness of the audio recording. It is further contended that CBI failed to adduce any evidence to show with whom the custody of said DVR audio recordings was lying during the period from 19.7.2018 when the trap was laid till 31.7.2018 when said exhibits were received at CBI laboratory for its examination.
86. I have carefully perused the entire evidence relating to audio recordings of the conversation contained in Q1 and Q2. It is a matter of record that at the time of examination of DVR through which the verification and trap proceedings were recorded on 18 th and 19th July, 2018, a time gap of +12 hours was found by the expert PW12 and same is also evident from his evidence. In this regard, I may also refer to the testimony of PW11 Sh. Mukesh Rawat. As per his version, before trap, he was given the demonstration of the DVR and at that time, the DVR was displaying the date as 19.7.2018. But in later part of his cross-examination, he came out with a contrary version when he admitted the suggestion that the date and time were not visible at the time when the DVR was opened and switched on by the CBI officials. He however, denied the suggestion that the said DVR shown to him was not the same which was shown to him at the time of trap.
87. The question that arises now is whether change of time reflected in audio files contained in Q1 and Q2 of alleged recordings of verification and trap, can be a ground to entirely discard the said important piece of evidence. In this regard, a question was asked by the Ld. Defence Counsel from PW12 wherein, he was asked if it was possible to CC No. 179/2019 CBI v. Baljeet Singh Rathi (Date 11.7.2023) Page no. 95 of 103 ascertain the exact date and timing of recording despite having incorrect date and time in the DVR to which, the witness replied that yes it was possible. However, he deposed that since there was no such query made in that regard, therefore, he had not mentioned said fact in his report Ex. PW12/A. Considering the fact that the time and date setting in the DVR at the time of recording was incorrect, it was incumbent upon the IO to put a specific query to the Expert to mention the actual date and time of recording in his report so as to remove any kind of doubt in the recording process. However, in the instant case, no such effort was made by the IO which led to the report lacking such material detail about the actual time and date of recording contained in said memory card Q1 and Q2. The technical evidence in any case is corroborative in nature and cannot substitute the substantive evidence.
88. In addition to above discrepancies in the evidence relating to recorded conversation, certain important and vital connecting links are also missing which also renders the case of CBI vulnerable to doubt and suspicion. As already pointed out above, no evidence has been adduced to show as to who brought those exhibits Q1, Q2, S1 and S2 and the DVR to CFSL. Further the record is absolutely lacking as to when and where those exhibits were stored and under whose custody the same were lying during the period from 19.07.2018 when the same were prepared till 31.7.2018 when the same were deposited with CFSL. Similar is the position even with regard to the evidence relating to hand washes RHW, LHW and Pant wash LPPW which were sent to CFSL vide letter no. RC-0022(A)/2018/8665 dated 24.7.2018 Ex. PW10/B except that as per covering letter Ex. PW10/B, CC No. 179/2019 CBI v. Baljeet Singh Rathi (Date 11.7.2023) Page no. 96 of 103 said exhibits were deposited to CFSL by Ct. Kuldeep Kumar, ACB, CBI, New Delhi, though said Ct. Kuldeep Kumar was also never examined in the matter. But, in respect of Ex. Q1, Q2, S1, S2 and DVR, there is nothing on record to even show as to who had deposited said exhibits with CFSL. As such, no effort has been made by CBI to prove that said exhibits remained intact during the storage and transit and in such eventuality, the possibility of tampering with said scientific evidence (hand washes, pant wash, DVR and questioned recordings) cannot be ruled out.
89. Furthermore, there are certain discrepancies pointed out even in the records pertaining to mobile phones which were allegedly used by the complainants at the time of alleged transaction. As per prosecution case, the complainant Ravi made the call to the accused at the time of verification from his mobile no. 9811270335 at the mobile phone of the accused bearing no. 9312411207. Whereas, on the date of trap, the accused was contacted on his said mobile phone by the complainant Sachin from his mobile phone bearing no. 9911554473. As per deposition of PW1, the Nodal Officer from Vodafone Idea Ltd., the CAF Ex. PW1/B (Colly.) of mobile no. 9811270335 revealed that said phone was registered in the name of Sh. Ravi Bharti, S/o Sh. Ashok Kumar, R/o F-16, Gali No. 10, Anand Parbat Industrial Area, New Delhi, whereas, e-KYC CAF Ex. PW1/C pertaining to mobile no. 9911554473 was registered in the name of Sachin Kumar, S/o Ashok Kumar, R/o House No. 383, Gali No. 1, Than Singh Nagar, Anand Parbat, New Delhi. PW1 deposed that they did not have any ID proof of the address F-16, Gali No. 10, Anand Parbat Industrial Area, New Delhi given by the subscriber Ravi Bharti in his CAF. He further deposed that he CC No. 179/2019 CBI v. Baljeet Singh Rathi (Date 11.7.2023) Page no. 97 of 103 could not say as to why the copy of voter ID in respect of address 383/1, Than Singh Nagar, Anand Parbat, New Delhi was placed on record alongwith the CAF of Ravi Bharti. Here, it is pertinent to note that as per prosecution case, both the complainants are resident of 383, Than Singh Nagar, Anand Parbat, Delhi. Whereas, address in CAF pertaining to complainant Ravi is F-16, Gali No. 10, Anand Parbat Industrial Area, New Delhi. Further, as per the record brought by PW1, there is no document of address proof of said address given in CAF of subscriber Ravi. Whereas, in respect of mobile no. 9911554473 subscribed in the name of Sachin Kumar, there was no aadhar card or other identify card details in their record.
90. From the above testimony of PW1, it appears that even record of service provider relating to identity of subscribers of said mobile phones is also not free from discrepancies. Although the details of name, parentage and photograph on the customer application form of the subscriber is matching with the complainants but there are discrepancies in address and address proof of the alleged subscribers of said mobile phones. Admittedly said mobile phones were never seized by TLO/IO during course of investigation and only their, CDR, CAF and location chart were obtained from service provider.
91. We cannot ignore the fact that technical evidence in any case is corroborative in nature and cannot substitute the substantive evidence. In the instant case, as already discussed above, the substantive evidence too is quite shaky. Therefore, a shaky substantive evidence has CC No. 179/2019 CBI v. Baljeet Singh Rathi (Date 11.7.2023) Page no. 98 of 103 been supported by another set of shaky corroborative evidence and thus, fails to give a complete comprehensive picture or to draw any conclusive inference in view of other attending circumstances already discussed above.
92. So what has come on record can be summed up, inter alia, as below-
i) Complainant Sachin and his associates
were booked several times by DDA for making
illegal encroachment on the demise land as is evident from the record seized from PW14 Sh.
Pramod Singh, the Naib Tehsildar of DDA (refer to para no. 36 to 38);
ii) A complaint Ex. PW9/DB was lodged against complainant Sachin and his associate by the PW9 Security Guard Balram Choudhary and Kanoongo Baljeet Singh Rathi i.e. the accused herein regarding the alleged threat of false implication extended to them by the complainant and his associates. (refer to para no. 39);
iii) As on the date of alleged incident, the demise land was not in physical possession of complainant as is evident from testimony of PW-4 Sh. Vikas Arya as well as judgment of Hon'ble High Court passed in Ramjas Foundation Vs. Union of India in W.P(C)6674/2015 decided on 22.08.2017, which is available on record as Ex. PW15/L (refer to para no. 33 and 35);
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iv) Failure on the part of complainant Ravi to correctly identify his own voice as well as the voice of unknown person in the conversation contained in file no. 1807910444 mentioned in the transcription of recorded conversation of Q1 Ex. PW5/G (refer to para no. 50);
v) Failure on the part of complainants Sachin and Ravi to identify the voice of unknown person in the conversation contained in file no.
1807200401 mentioned in the transcription of recorded conversation of Q2 Ex. PW5/H (refer to para no. 52);
vi) The transaction of alleged demand and acceptance of bribe on 19.7.2018 was admittedly not seen by either of the independent witnesses (refer to para no. 53 to 56);
vii) Discrepancies in the versions of complainants with regard to presence of Sh. Jitesh Jain in the office of J.K. Properties on the date of trap i.e. on 19.7.2018 (refer to para no. 60 to 64);
viii) The version of PW-20 Ravi that the complaint Ex. PW5/A was lodged at the instance of PW-4 Sh. Vikas Arya, is being falsified by the version of PW-4 Sh. Vikas Arya who feigned complete ignorance about any demolition carried out by DDA on the plot in question (refer to para CC No. 179/2019 CBI v. Baljeet Singh Rathi (Date 11.7.2023) Page no. 100 of 103 no. 65);
ix) Contradiction in the version of independent witness PW11 Sh. Mukesh Rawat and complainant PW5 Sh. Sachin with regard to the meeting of Jitesh Jain with Sachin outside the office of J.K. Properties. As per complainant Sachin Kumar, on 19.7.2018, he had met his friend Jitesh Jain outside the office of J.K. Properties and thereafter, he with his friend sat in said office for about 4-5 minutes and Jitesh Jain left the office before the arrival of accused and complainant's brother Ravi. Whereas, as per PW-11, on 19.7.2018, both Ravi and Sachin had together entered into the office of J.K. Properties and no person had met Ravi or Sachin till they entered said office on that day. (refer to para no. 74 and 75);
x) The complaint dated 18.7.2018 Ex. PW5/A
was not registered in consonance with the
guidelines contained in CBI Crime Manual (refer to para no. 78 to 81);
xi) There is difference of +12 hours in the date and time of audio recording files contained in Q1 and Q2 which are the alleged recordings of verification and trap proceedings and no effort was made by the IO to clarify said difference in time and date of said recordings as he did not put any query to the expert to mention actual time and date of recording contained in said memory card CC No. 179/2019 CBI v. Baljeet Singh Rathi (Date 11.7.2023) Page no. 101 of 103 Q1 and Q2. Further, there is discrepancy in the version of PW11 Sh. Mukesh Rawat with regard to the display of date and time in the DVR at the time of trap proceedings conducted on 19.7.2018 (refer to para no. 85 to 87);
xii) No effort made by CBI to prove that the exhibits Q1, Q2, S1, S2 as well as RHW, LHW and LPPW remained intact during storage of transit till the same were deposited with CFSL (refer to para no. 88);
xiii) Discrepancies in the address of the complainants in the record of service provider of the telephone numbers allegedly used by complainants at the time of verification and trap (refer to para no. 89 and 90).
Conclusion:
93. In the light of aforementioned facts and circumstances of the case, I am of the considered view that the case of CBI is full of serious infirmity, inconsistencies and contradictions rendering the case unbelievable. Both the substantive and corroborative evidences are shaky and unclinching leaving it totally incredible and untrustworthy. In view thereof, I do not find the material sufficient to prove the case beyond reasonable doubt so as to record any finding of guilt against the accused. Accused Baljeet Singh Rathi is hence, acquitted of the charges for the offences punishable under Section 7 and 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988. Bail Bonds in compliance CC No. 179/2019 CBI v. Baljeet Singh Rathi (Date 11.7.2023) Page no. 102 of 103 to Section 437A Cr.P.C be furnished by the accused. Exhibits be destroyed after completion of period of appeal.
94. File be consigned to record room after due compliance.
Announced in the open court today i.e. 11.7.2023 (SUNENA SHARMA) Special Judge (PC Act) CBI-01 RADC/Delhi CC No. 179/2019 CBI v. Baljeet Singh Rathi (Date 11.7.2023) Page no. 103 of 103