Delhi District Court
Central Bureau Of Investigation vs Pawan Kumar Yadav @ Pawan Yadav on 28 October, 2015
IN THE COURT OF SH. PARVEEN SINGH,
SPECIAL JUDGE (PC ACT), CBI2, NEW DELHI DISTRICT,
PATIALA HOUSE COURT, NEW DELHI
CC No.09/2012
RC No. DAI/2011/A0032/ACB/CBI/New Delhi.
U/s. 7 and 13 (2) r/w 13(1)(d) of PC Act, 1988
Central Bureau of Investigation
Versus
Pawan Kumar Yadav @ Pawan Yadav,
S/o Sh. Prakash Veer Yadav,
R/o H. No. 484B, Gali No. 2,
Vijai Park, Mauzpur, Delhi. .....Accused.
Date of Institution : 03.07.2012.
Arguments heard on : 20.10.2015.
Date of Judgment : 28.10.2015.
JUDGMENT
The chargesheet The present case was registered on the basis of complaint Page No. 1 of 54 (Parveen Singh) Spl. Judge: CBI02:28.10.15 Ex.PW7/A dated 09.12.2011 filed by complainant Virender Singh. It was alleged by the complainant that he used to ply a bus belonging to his maternal uncle Maha Singh. He had taken a power of attorney from his maternal uncle for playing this bus. This bus was challaned on 04.06.2011 on the allegations that the bus was being plied on a forged permit and FIR against the complainant and his maternal uncle was registered with PS Hauz Khas on 09.06.2011. The investigation of this case was being done by SI Pawan Kumar. The complainant was granted bail in this case on 20.09.2011 and his uncle had been granted anticipatory bail in this case. The anticipatory bail documents of his maternal uncle were to be filled in the police station. He alleged that SI Pawan Kumar Yadav for obtaining bail for him and for completing the papers of bail of his maternal uncle had demanded a bribe of Rs.20,000/. He further alleged that Pawan Kumar Yadav had threatened that in case he failed to give bribe, SI Pawan Kumar would wrongly filled the papers which would put the bail in jeopardy. 2 The verification of this complaint was entrusted to Insp. Shitanshu Sharma. It was decided to record the telephonic conversation between the accused and the complainant. A DVR was arranged by Insp. Page No. 2 of 54
(Parveen Singh) Spl. Judge: CBI02:28.10.15 Shitanshu Sharma and an independent witness Md. Aslam, LDC from Ministry of Labour was also arranged by CBI. Thereafter, the complainant alongwith Insp. Shitanshu Sharma and independent witness reached near PS Hauz Khas. The DVR was given to the complainant which he had kept in his shirt pocket whereafter he followed by independent witness entered the police station. The complainant came back after two hours and handed over the DVR containing the recorded conversation between him and the accused. It was verified that the accused had demanded Rs.20,000/ as bribe from the complainant. A verification memo dated 29.12.2011 (Ex. PW7/B) was prepared. After the verification, FIR no. RCDAI2011A0032 (Ex.PW7/F) was registered against Pawan Yadav. Thereafter, a team headed by Insp. Sunil Dutt as TLO, two independent witnesses Md. Aslam, LDC from Ministry of Labour and Employment Shram Shakti Bhawan and Sh. Raje Ram, NTS Mate North Zone General, DDA, Vikas Sadan, New Delhi was constituted. The complainant produced a sum of Rs.20,000/ in the form of 4 general currency notes of Rs.1,000/ denomination, 21 notes of Rs. 500/ denomination and 55 notes of Rs.100/ denomination. A demonstration of reaction of phenolphthalein and solution with sodium Page No. 3 of 54 (Parveen Singh) Spl. Judge: CBI02:28.10.15 carbonate was shown to all the team members. The numbers of general currency notes were recorded in handing over memo Ex.PW7/C and phenolphthalein powder was applied on these GC notes. Personal search of the complainant was conducted and he was not allowed to keep anything incriminating with him except his mobile phone. The powder treated bribe amount of Rs.20,000/ was put in the left side jeans pocket of the complainant by independent witness Raje Ram. The complainant was directed to hand over this amount to the accused only on being specific demanded. Independent witness Md. Aslam was asked to act as a shadow witness, to remain close to the complainant, overhear the conversation and to see the transaction of bribe amount. The other witness Raje Ram was directed to remain with trap team. On completion of the transaction, the shadow witness and the complainant were directed to give missed call from their mobile phones to the mobile phone of the TLO. The complainant had also been given a direction to give a signal by rubbing his face with both his hands. A DVR was arranged wherein the introductory voices of both the witnesses were recorded. Thereafter, team members searched each other. A trap kit was arranged and the pre trap proceedings concluded at around 1230 Page No. 4 of 54 (Parveen Singh) Spl. Judge: CBI02:28.10.15 hours.
3 At around 1305 hours, the CBI team reached near PS Hauz Khas. The DVR was given to the complainant by switching it on to the recording mode. The complainant kept it in left upper side pocket of his shirt which was inside his jacket. The trap team found Maha Singh waiting at the spot. The complainant alongwith Maha Singh and the shadow witness proceeded towards the police station and after reaching the police station, the trap team members took their position in the vicinity of PS Hauz Khas. At about 1315 hours, the complainant with Maha Singh and the shadow witness entered the police station. The complainant was directed to introduce the shadow witness as surety for the bail of Maha Singh. At about 1400 hours, Md. Aslam (shadow witness )came out of the police station and intimated that both the complainant and his uncle were inside the room of SI Pawan Kumar but due to scarcity of space, he could not accommodate himself in the room and sat outside the room of the accused. As he felt that his presence might create suspicion, he came outside the police station and took a suitable position in discreet manner. Thereafter, Maha Singh was also seen coming out and was allowed to leave the spot. At about 1415 hours, the Page No. 5 of 54 (Parveen Singh) Spl. Judge: CBI02:28.10.15 complainant came out and informed the TLO that the accused was then demanding Rs.25,000/ and was directing him to place the money under a blanket lying on the bed of his office room. The complainant had come out on the pretext of obtaining extra Rs.5,000/ from his maternal uncle. The complainant was directed to go back, to request that he could not arrange extra money and give tainted money of Rs.20,000/. At 1510 hours, the complainant came out of the police station and made a call to the mobile phone of the TLO as an indication of the transaction. The complainant told that SI Pawan Kumar, after taking the bribe amount by his left hand, had kept it in his left side pocket of his trouser and the accused was about to move out from his office room. Thereafter, the trap team rushed inside the police station and reached the office room (Room No. 101) of SI Pawan Kumar situated at first floor of PS Hauz Khas. The room was found locked. DVR was taken back from the complainant and the recording was stopped. SI Pawan Kumar was found in another room in the police station. The CBI team disclosed its identity and challenged SI Pawan Kumar that he had taken bribe of Rs.20,000/ from the complainant. Accused became perplexed and said that he would return the money to the complainant. SI Page No. 6 of 54 (Parveen Singh) Spl. Judge: CBI02:28.10.15 Pawan Kumar was brought to his office room. His room was opened in presence of independent witnesses. Thereafter, hand washes of both hands of the accused were obtained which had turned pink on being dippted in a solution of sodium carbonate and marked as LHW and RHW. These washes were transferred separately in neat and clean glass bottles. The necks of the bottles were capped and wrapped with clothes and sealed with the seal of CBI. The bribe money was later on recovered from office table of accused which was hidden under the table top. The accused was directed to take off his trouser. The left side pant pocket was dipped in sodium carbonate solution which turned pink. The solution was transferred in another glass bottle. After capping the bottle, it was wrapped in a cloth and sealed with the seal of CBI. The numbers of the recovered currency were tallied with the numbers written in handing over memo and it were found to be the matching.
Charge 4 Thereafter, on 29.09.2012, my learned predecessor framed charge u/s 7 and 13 (2) r/w section 13(1) (d) of PC Act against the accused to which he pleaded not guilty and claimed trial.
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(Parveen Singh) Spl. Judge: CBI02:28.10.15 Prosecution Evidence The prosecution to prove its case examined 13 witnesses. 5 PW1 is Ms. Chhaya Sharma. She deposed that in June, 2012, she was posted as DCP, South District, New Delhi. A request from CBI was received for grant of sanction for prosecution u/s 19 of POC Act against SI Pawan Kumar, who was posted in District Lines, South District, Hauz Khas. Alongwith the request, she had received a number of documents including the details of the complaint and investigation. After going through the entire record, she found it to be a fit case for grant of sanction u/s 19 of POC Act and granted sanction Ex.PW1/A dated 28.06.2012. 6 PW2 is Sh. Maha Singh. He deposed that he knew accused as he had met the accused 34 times in relation to his bail. He had been granted anticipatory bail by the Saket Court and he was required to fill up documents of bail before SI Pawan Yadav. He submitted bail form before SI Pawan Yadav and did not face any difficulty and had no dispute with SI Pawan Yadav. His nephew Virender Singh had told him that Pawan Yadav was demanding bribe from Virender Singh. He did not know how much Page No. 8 of 54 (Parveen Singh) Spl. Judge: CBI02:28.10.15 bribe was demanded by the accused from Virender Singh or whether his nephew had paid any amount to the accused. He was declared hostile and cross examined by learned Spl. PP.
7 During his cross examination by Spl. PP, he deposed that he did not remember whether in his statement u/s 161 Cr.P.C, he had stated that SI Pawan Kumar was demanding a bribe of Rs.20,000/ on the pretext that he (Pawan Yadav) would wrongly fill the bail form and then he would be in trouble. He further deposed that Virender Singh did not tell him how much amount was demanded by SI Pawan Kumar and admitted that Virender Singh had asked him as to what was to be done because he was not willing to fulfill the demand of SI Pawan Yadav. He further deposed that he told his nephew to lodge a complaint with CBI and volunteered, that SI Pawan Kumar had called him in the investigation 34 times and he told Virender Singh that Pawan Yadav would unnecessarily harass them and therefore, he asked Virender Singh to take some steps. He admitted that on 30.12.2011, he received a telephonic call from SI Pawan Yadav who asked him to reach PS Hauz Khas. He also admitted that after this call from Pawan Yadav, he talked to Virender Singh who asked him to reach the police station. He Page No. 9 of 54 (Parveen Singh) Spl. Judge: CBI02:28.10.15 further admitted that he alongwith Virender Singh and his brother Daya Nand went to the room of SI Pawan Kumar Yadav and except them, there was no other person present in the room. He denied that alongwith him and Virender Singh, one third person was with them and Daya Nand was not with them. He further denied that the said third person went outside the room of SI Pawan Yadav as there was insufficient space in the room and volunteered, that Virender Singh and his brother Daya Nand remained present with him in the room of SI Pawan Yadav. He denied that Daya Nand was not present at that time. He denied that SI Pawan Yadav demanded money in his room from Virender Singh in his presence. He admitted that after completion of formalities of bail, he came out of room of SI Pawan Yadav but Virender Singh remained there with SI Pawan in the room. 8 During his cross examination on behalf of accused, he admitted that his brother Daya Nand stood surety for him and submitted relevant forms/ papers in PS Hauz Khas before SI Pawan Yadav. He deposed that the bail bond Ex.PW2/DA was the same bail bond which was submitted by them to SI Pawan Yadav which had his signatures at point A and signatures of Daya Nand at point B. He denied that Virender Singh had Page No. 10 of 54 (Parveen Singh) Spl. Judge: CBI02:28.10.15 planted some money in the room of SI Pawan Yadav in his absence. He did not remember whether HC Sushil Kumar was present in the room of SI Pawan Yadav and volunteered, that as far as he remembered, some other police officials kept on coming and going in the room of SI Pawan Yadav but he did not remember their names. He denied that through the influence of their known officials in CBI, they started planning to take revenge upon SI Pawan Yadav as SI Pawan did not oblige him in the criminal case. 9 PW3 is HC Ravinder Kumar. He deposed that since December 2010, he had been posted in PS Hauz Khas. He further deposed that on 26.03.2012, through seizure memo Ex.PW3/A bearing his signatures at point A, he had handed over the documents mentioned in the seizure memo to CBI. He handed over FIR no. 205/11 PS Hauz Khas (Ex.PW3/B1) and bail order Ex.PW3/B2 to the IO of CBI. He had also handed over bail bond Ex.PW2/DA to the CBI.
10 During his cross examination, he deposed that on some rooms on the ground floor of PS Hauz Khas, room numbers had been given but on other rooms, no specific numbers had been given. He further deposed that there was no room having number 101 in PS Hauz Khas. He was present on Page No. 11 of 54 (Parveen Singh) Spl. Judge: CBI02:28.10.15 the day when SI Pawan Yadav was apprehended by CBI. He saw that 23 persons were dragging SI Pawan Yadav out of a small room. SI Pawan Yadav was saying that he had not received any bribe. On inquiries being made, CBI officials told him to remain aside. SI Pawan Yadav was taken by CBI officials in a room. That room was being used by SI Pawan Yadav and other officials of the police station. The said room was not locked and was opened by a push. They were not allowed to enter in the room near staircase and therefore, he did not know what happened inside that room. In the meantime, SHO PS Hauz Khas reached there and asked them to attend their work.
He was reexamined by Spl. PP and then cross examined by Ld. Spl. PP.
11 During his reexamination, he deposed that his statement u/s 161 Cr.P.C was recorded by Insp. SP Singh. He had told Insp. SP Singh everything which was asked by him and he had answered the questions put to him. He told the facts to Insp. SP Singh in response to his questions and did not put anything from his side.
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(Parveen Singh) Spl. Judge: CBI02:28.10.15 12 Thereafter, during his cross examination by Ld. Spl. PP he denied that there was a room no. 101 in PS Hauz Khas and volunteered, that on none of the rooms, number 101 had been written. He denied that the room in which SI Pawan Yadav used to sit was given number 101. He denied that he had deliberately introduced this fact in his testimony to save accused. He denied that he did not see that CBI officials had apprehended SI Pawan Yadav from his hands or that he was being pushed from his room by other officials or that he was taken in another room near staircase. He denied that he came to know about the apprehension of accused from his other colleagues.
13 PW4 is Sh. Anuj Bhatia, Nodal officer from Vodafone. He deposed that vide letter dated 18.05.2012 (Ex.PW4/A) (D15), he had provided call detail records of mobile number 9899995990 to CBI. The customer application form of Pawan Yadav in respect of aforesaid mobile number was exhibited as Ex.PW4/B. He further deposed that the call detail records provided by him to CBI were Ex.PW4/C (Colly) and certificate u/s 65 B of Evidence Act was Ex.PW4/D. He further deposed that the call detail records were with effect from 15.12.2011 to 31.12.2011. Page No. 13 of 54
(Parveen Singh) Spl. Judge: CBI02:28.10.15 14 PW5 is Sh. V. B Ramteke, SSO1cumAssistant Chemical Examiner from CFSL. He deposed that vide letter dated 23.01.2012, the exhibits of this case, in duly sealed condition were received in his office. The seals on the exhibits were compared by seal impression. The seals were intact and tallied with the specimen seal. He further deposed that the exhibits were marked as LHW, RHW, LPPW. Contents of the bottles were examined by him by chemical test. After examination of the exhibits, he prepared a detailed report Ex.PW5/A dated 10.02.2012. Thereafter, he sealed all the exhibits with the seal of CFSL and forwarded them to SP ACB, CBI, New Delhi. Three sealed bottles were produced during his testimony and he identified them to be the same bottles which he had, after examination, sealed and sent to CFSL. The bottles were exhibited as Ex.P1, Ex.P2 and Ex.P3. He further proved the cloth wrappers in which the bottles were wrapped as Ex.P5, Ex.P6 and Ex.P7. 15 During his cross examination, he deposed that the Ex.P1, Ex.P2 and Ex.P3 were received in the office of CFSL by him and acknowledgment of the same was given by case section. He further deposed that exhibits were unsealed by him on 08.02.2012 and remained unsealed Page No. 14 of 54 (Parveen Singh) Spl. Judge: CBI02:28.10.15 during chemical examination. At the request of learned counsel for accused, he was directed to produce the worksheet. He produced the worksheet of chemical examination stating that it bore his signatures at point A and that of Ms. Meeta Sharma at point B. The worksheet was exhibited as Ex.PW5/DA. He denied that the exhibits were not examined by him and he had simply signed the worksheet Ex.PW5/DA, report Ex.PW5/A and Ex.P1 to Ex.P7. He denied that the exhibits were not kept in safe custody and were tampered with.
16 PW6 is Sh. Vishal Gaurav, Nodal Officer from Bharti Airtel Ltd. He deposed that vide letter dated 06.07.2012 (Ex.PW6/A) (D18), he had sent call detail records and customer application form of mobile no. 9717403088 of complainant Virender Singh, to CBI. The copy of customer application form was exhibited as Ex.PW6/B. The call detail records w.e.f 15.12.2011 to 31.12.2011 of the above said mobile phone were Ex.PW6/C (D18) and the certificate u/s 65B of Indian Evidence Act was Ex.PW6/D (D18).
17 PW7 is Sh. Virender Singh, the complainant. His testimony Page No. 15 of 54 (Parveen Singh) Spl. Judge: CBI02:28.10.15 shall be discussed at later stage as and when required. 18 PW8 is Md. Aslam. He is an independent witness and a witness to verification as well as trap proceedings. His testimony will be discussed later on as and when required.
19 PW9 is Raje Ram. He is an independent witness and a witness to trap proceedings. His testimony shall be considered at relevant stage as and when required.
20 PW10 is Shitanshu Sharma Inspector, CBI. He deposed that on 29.12.2011, he was assigned a complaint Ex.PW7/A for verification. For the verification of the complaint, he called an independent witness from Ministry of Labour. This witness was Md. Aslam (PW8). The complainant and Md. Aslam were introduced to each other. Complaint Ex.PW7/A was shown to the witness. He then arranged for a DVR and a blank CD. Blankness of the DVR was ensured whereafter introductory voice of Md. Aslam was recorded in DVR. Thereafter, he alongwith the complainant and Md. Aslam went to PS Hauz Khas and reached there at about 6.00 p.m. The complainant was sent inside the police station. He and Md. Aslam remained Page No. 16 of 54 (Parveen Singh) Spl. Judge: CBI02:28.10.15 outside the police station in a disguised manner. After about 02 hours, the complainant came out of the police station and informed that the accused had demanded a bribe of Rs.20,000/ and had asked him to come to the police station on next day at around 11 a.m. DVR was taken from the complainant and stopped. The recorded conversation was heard at the spot outside the police station. The recorded conversation also confirmed what the complainant had informed. Thereafter, they came back to CBI office and with the help of laptop recorded conversation in DVR was transferred to a CD. Signatures of Md. Aslam were taken on the CD. He also put his signatures on CD and CD was marked as Q1. CD was put in a cloth wrapper and was sealed with the seal of CBI. The proceedings were recorded in a verification memo Ex.PW7/B which was signed by him, the complainant and Md. Aslam. The seal after use was given to Md. Aslam, who kept it in safe custody. He identified the CD mark Q1 (Ex.P1). He further deposed that on 30.12.2011, a trap team was constituted under the leadership of Insp. Sunil Dutt and he alongwith Insp. Anand Swaroop, Insp. Pramod Kumar, SI A.K Maurya amongst others from CBI were the members of trap team. Md. Aslam and Raje Ram were the independent Page No. 17 of 54 (Parveen Singh) Spl. Judge: CBI02:28.10.15 witnesses. The complainant was also included in trap team. 21 PW11 is Sunil Dutt. He was the trap laying officer. His testimony shall be discussed later as and when required. 22 PW12 is Sh. Deepak Kumar Tanwar, Scientific Officer, Grade I from CFSL. He had examined the pre trap conversation CD mark Q1 and trap conversation CD mark Q2. After the detailed examination, he prepared his report Ex.PW12/A dated 12.09.2012. 23 During his cross examination, he deposed that vide letter Ex.PW12/DA dated 17.05.2012, he had received three parcels. He further deposed that he had received the transcript of the questioned recordings with three parcels on 17.05.2012. He admitted that in his report Ex.PW12/A, it was mentioned that he had received the parcels on 01.06.2012 and volunteered, that it was a typographical error. He further deposed that the transcript was running into 50 pages which he had mentioned in his report Ex.PW12/A. 24 PW13 is Sh. SP Singh, Inspector. He is the IO of this case. He deposed that on 10.01.2012, he was assigned investigation of this case. Page No. 18 of 54
(Parveen Singh) Spl. Judge: CBI02:28.10.15 He was handed over the case file containing the FIR, complaint, verification memo, pre trap memo i.e. handing over memo, the post trap memo i.e. the recovery memo, site plan and arrest memo. The hand washes had already been deposited in malkhana. Vide letter dated 18.01.2012, he had sent them for examination to CFSL. The letter was exhibited as Ex.PW13/A. He further deposed that Insp. Sunil Dutt had also handed to him, three CDs marked as Q1, Q2 and S1. He summoned the complainant and Md. Aslam and heard the recordings in the CD marked Q1. The transcriptions of the conversation Ex.PW7/H1 to Ex.PW7/H29 were prepared. The voice identification cum transcription memo Ex.PW7/G in respect of CD Q1 was prepared and it had his signatures at point C, that of complainant at point A and of Md. Aslam at point B. He had also called another witness Raje Ram and in his presence heard CD mark Q2. The transcriptions Ex.PW7/K1 to Ex.PW7/K16 were prepared. The voice identification cum transcription memo Ex.PW7/J in respect of CD Q2 was prepared and it had his signatures at point D, that of complainant at point A, of Md. Aslam at point B and of Raje Ram at point C. The CDs, which were already lying in malkahana, were sent to CFSL through Sh. Ghanshyam Upadhyay vide letter Page No. 19 of 54 (Parveen Singh) Spl. Judge: CBI02:28.10.15 Ex.PW12/DA dated 16/17.05.2012. During his investigation, he collected report Ex.PW12/A regarding the voice identification and CDs from CFSL. He also collected report Ex.PW5/A. He also collected call detail records Ex.PW6/A and Ex.PW4/A from service providers M/s Airtel and M/s Vodafone respectively. He also requisitioned certain documents from PS Hauz Khas and seized them vide seizure memo Ex.PW3/A. He recorded statements of witnesses. He got a request made for grant of sanction through the DIG. Vide order dated 28.06.2012 Ex.PW1/A, he received sanction order.
25 During his cross examination, he deposed that he did not remember the name of the official who had taken the hand wash bottles from malkhana to CFSL. He denied that he had added the date 23.01.2012 on the letter at point A1 on letter dated 18.01.2012 Ex.PW13/A and volunteered, that samples were sent and a photocopy of a letter Ex.PW13/A was handed over to the official who had taken the samples to CFSL so that he could get a receipt of delivery of samples. Since the samples were delivered on 23.01.2012, as was reflected on the photocopy of letter Ex.PW13/A, date 23.01.2012 was mentioned at point A1. He admitted that Page No. 20 of 54 (Parveen Singh) Spl. Judge: CBI02:28.10.15 date 23.01.2012 was mentioned at point A after the delivery of samples to CFSL. He denied that samples from 18.01.2012 to 23.01.2012 had remained with him and volunteered, that they remained in malkhana. He denied that during this period, he had tampered with the samples and sent only the tampered samples to CFSL. He denied that he had taken CDs marked Q1, Q2 and S1 from malkhana on 17.05.2012 and sent the same to CFSL only on 01.06.2012. He denied that during this period, he had tampered with the CDs and sent the tampered CDs to CFSL. He denied that he had never called the complainant and the independent witnesses to join investigation. He denied that Insp. Sunil Dutt had handed over certain blank papers which he manipulated and used for preparing various memos and transcripts. He denied that the initials on Ex.PW13/DA and on each page of charge sheet were same. He admitted that the letter dated 27.06.2012, Ex.PW13/DB, bore the signatures of Sh. S. K Palsania and volunteered, that he had identified his signatures as his name was written beneath his signatures. He could not say that the request for grant of sanction was sent to the concerned DCP on 28.06.2012. He did not know by what mode, the request for grant of sanction was sent. He denied that alongwith the request Page No. 21 of 54 (Parveen Singh) Spl. Judge: CBI02:28.10.15 for grant of sanction, only a draft sanction order, was sent and no other record was sent. He denied that he himself had taken the request letter alongwith draft sanction order to the DCP on 28.06.2012 and came out with the sanction order within ten minutes and volunteered, that he was called with the original documents and he had taken the original documents to the DCP office and shown to the DCP. He denied that with the request letter Ex.PW13/DB, no photocopy of any document was sent. He denied that investigation continued even after 28.06.2012. He admitted that CFSL report and call details were received after filing of chargesheet. Statement of Accused and Defence Evidence Thereafter, statement of accused was recorded u/s 313 Cr.P.C. 26 In his statement u/s 313 Cr.P.C. The accused admitted that he was a Sub Inspector in Delhi Police but denied that on 30.12.2011, he was posted in District Lines, South District, Hauz Khas New Delhi. He denied demanding any bribe from the complainant and stated that he was innocent and had been falsely implicated by the complainant in connivance with CBI officials. This was done by the complainant to save his maternal uncle and other persons who were involved in preparing forged permits. He further Page No. 22 of 54 (Parveen Singh) Spl. Judge: CBI02:28.10.15 stated that the complainant had grudge against him as he had arrested the complainant who had remained in custody for two months.
The accused preferred to lead evidence in his defence and examined 12 witnesses.
27 DW1 is Ct. Jaiveer. He deposed that he had brought the summoned record which was reply to an application of the accused under RTI Act. The reply was dated 19.06.2015 and had been signed by Sh. P.S. Kushwaha, Addl. DCP cum Public Information Officer, South District, New Delhi. The reply was exhibited as Ex.DW1/1. The original DD No. 10A dated 30.12.2011 was attached with the reply.
28 DW2 is Sh. M.A. Khan, Under Secretary, Central Vigilance Commission, New Delhi. He deposed that he had brought the summoned record i.e. office order no. 73/12/2005 dated 15.12.2005, copy of which was exhibited as Ex.DW2/1. He had also brought the list of Chief Vigilance Officers of organizations/ departments to whom Ex.DW2/1 was sent. The list running into 41 pages was exhibited as Ex.DW2/2 (colly). 29 DW3 is Dinesh Kumar, Ahlmad from the court of Sh. Ashok Kumar, MM, South East, Saket Court. He had brought the Page No. 23 of 54 (Parveen Singh) Spl. Judge: CBI02:28.10.15 summoned record i.e. case file of FIR No. 205/2011 u/s 420/419/468/471/120B IPC with PS Hauz Khas. Copy of order sheet dated 19.11.2011 is Ex.DW3/1. The report u/s 173 Cr.P.C was Ex.DW3/2. He further deposed that as per record, no supplementary chargesheet had been filed in this case.
30 DW4 is Sh. Rajbir Singh, UDC, CBI, ACB, CGO Complex, New Delhi. He deposed that he had brought the summoned record. As per record, during the period 01.12.2011 to 31.12.2011, mobile no. 9968081216 was allotted to Sh. Ganesh Verma, Sr. SP. The photocopy of register containing this record was exhibited as Ex.DW4/1. He further deposed that the mobile no. 9968081951 was not related to any branch and as such, there was no record available in respect of this mobile number. 31 DW5 is ASI Gautam Roy from Recruitment Cell, New Police Lines, Kingsway Camp, Delhi. He deposed that he had brought the summoned record i.e. attested copy of offer of appointment of SI Pawan Yadav. The same was exhibited as Ex.DW5/1.
32 During his cross examination, he admitted that the authority having power to remove a sub inspector from service could be different Page No. 24 of 54 (Parveen Singh) Spl. Judge: CBI02:28.10.15 from the appointing authority. In answer to clarification of court, he deposed that the DCP, who is incharge of recruitment cell, is the appointing authority of sub inspector and in case of removal, the removing authority would be DCP who headed the unit or district wherein such sub inspector was posted. 33 DW6 is Anuj Bhatia, Notdal Officer from Vodafone Mobile Services Ltd. He had brought the summoned record of mobile number 9899995990, which was in the name of Pawan Yadav. The same was exhibited as Ex.DW6/1. The certificate u/s 65B of Indian Evidence Act was exhibited as Ex.DW6/2 and the copy of customer application form with supporting documents were Ex.DW6/3.
34 DW7 is Pawan Singh, Nodal Officer from Idea Ltd. He had brought the call detail records in respect of phone no. 9911771105 from 01.11.2011 to 15.03.2012. Same was exhibited as Ex.DW7/1. The certificate u/s 65B of Indian Evidence Act was exhibited as Ex.DW7/2 and the copy of customer application form was Ex.DW7/3. The cell ID chart of Delhi_NCR of Idea Cellular was Ex.DW7/4.
35 DW8 is K.M.S. Khalsa, Under Secretary from Ministry of Labour and Employment. He had brought the copy of reply no. Page No. 25 of 54
(Parveen Singh) Spl. Judge: CBI02:28.10.15 C30016/01/2012Vig dated 28.05.2013 which was sent to Mr. Pawan Yadav pursuant to his application under RTI and the reply was Ex.DW8/1. 36 DW9 is Sh. Sunil Kumar, Nodal Officer from MTNL Bhawan. He deposed that vide letter dated 8.11.2012, the record requisitioned by the court was submitted to the Court. The letter was exhibited as Ex. DW9/1. This letter was accompanying the letter of JTO namely Mr. R. S. Yadav Ex. DW9/2 (wrongly written as Ex.PW9/2). The CDR of Mobile No. 9968081944 from 1.11.2011 to 20.1.2012 running into 11 pages was Ex. DW9/3. The CDR of Mobile No. 9968081951 from 1.11.2011 to 20.1.2012 and from 1.1.12 to 20.1.2012 running into 30 pages was was Ex. DW9/4 and Ex. DW9/5. The CDR of mobile No. 9968081216 from 1.01.2012 to 20.1.2012 running into 03 pages was Ex.DW9/6. He had also brought the original subscriber application form for mobile no. 9968081951. The copy of the same was Ex. DW9/7. He had also brought the original subscriber application form for mobile no. 9968081944 The copy of the same was Ex.DW9/8. He had brought the original subscriber application form for mobile no. 9968081216. The copy of the same was Ex. DW9/9. The accompanying certificate U/s 65 B of Indian Evidence Act in Page No. 26 of 54 (Parveen Singh) Spl. Judge: CBI02:28.10.15 respect of CDR record of above three mobile numbers was Ex. DW9/12. Along with this record, the site location chart of Delhi NCR of MTNL was also submitted which was exhibited as Ex.DW9/10 (wrongly typed as Ex.PW9/10). The cell ID Chart running into 28 pages was Ex.DW9/11(wrongly typed as Ex.PW9/11).
37 DW10 is HC Sushil Kumar. He deposed that on 30.12.2011, he was posted as HC at PS Hauz Khas, N. Delhi. In the afternoon, he was sitting with SI Pawan Kumar and had gone to him as he had needed CDRs for a missing person's case which he was investigating. In the meantime, two persons came into the room. SI Pawan Kumar said to him that one of those persons, due to the lapse of time whose name he did not recall but who was an old aged person, was to be formally arrested in a case of cheating which was being investigated by SI Pawan Kumar. SI Pawan Kumar then prepared the arrest documents of that person and he signed the arrest memo as a witness. After completion of formalities, both those persons went. He and SI Pawan Kumar started doing their respective work. Thereafter, SI Pawan Kumar told him that he (Pawan Kumar) was going down stairs to record the DD entry of the proceedings. SI Pawan Kumar Yadav went Page No. 27 of 54 (Parveen Singh) Spl. Judge: CBI02:28.10.15 down stairs and he went to the toilet. From the toilet, he went to the common room in the police station to take rest. After some time, SI Pawan also arrived in the same room and recorded his statement. After some time, some persons came there inquiring who was Pawan and apprehended SI Pawan Kumar. On inquiries being made, those persons told that they were from CBI and asked them not to interfere. Thereafter, they dragged SI out of the room and took him to the room where he and SI Pawan Kumar were earlier sitting. Statement U/s 161 Cr. P. C from the original police file of FIR No. 205/2011 PS Hauz Khas which had been brought to the Court by witness HC Beer Chand was put to the witness and after seeing the same, he stated that it was the same statement which he had given to SI Pawan Kumar and which was recorded by SI Pawan Kumar on 30.12.2011. Copy of the statement was exhibited as Ex. DW10/1. He further deposed that no specific room was allotted to SI Pawan Kumar in the police station. It was a common investigating officer's room where the IOs could sit and do their work.
38 During his cross examination, he deposed that the arrest proceedings conducted by SI Pawan Yadav might have taken place at Page No. 28 of 54 (Parveen Singh) Spl. Judge: CBI02:28.10.15 around 1.15/1.30 PM. In his statement U/s 161 Cr.P.C, he had not stated the time of arrest. He denied that the statement U/s 161 Cr.P.C. was not recorded on 30.12.2011 or that as SI Pawan Yadav was his superior, he was deposing falsely.
39 DW11 is ASI Ishwar Singh. He deposed that mobile number 9968081951 was allotted to him by the department on 01.05.2010. It remained with him till 20.12.2011. Thereafter, this mobile number was allotted to Mr. C. Samad ASI on 20.12.2011 and remained with him till 3.10.2013. He had brought the copy of the letter whereby he had handed over this phone to CBI and it was allotted to Sh. Samad on 20.12.2011. The letter was exhibited as Ex.DW11/1.
During his cross examination, he deposed that aforesaid mobile phone, as long as it remained officially allotted to him, used to be with him 24 hours a day.
40 DW12 is Harish Kumar, Deputy Director (Housing), DDA. He deposed that a RTI application dated 19.11.2013 was filed by Pawan Yadav and was marked to him by the Sr. Research Officer, RTI on 26.11.2013. The copy of said application was exhibited as Ex.DW12/1 and Page No. 29 of 54 (Parveen Singh) Spl. Judge: CBI02:28.10.15 copy of letter dated 26.11.2013 was exhibited as Ex.DW12/2. He gave reply to that application vide letter dated 18.12.2013 Ex.DW12/3. He further deposed that he had given this reply on the basis of report given to him by the concerned Anti Corruption Branch of Vigilance Department of DDA, which was exhibited as Ex.DW12/4.
Findings 41 The CBI has sought to prove its case by two kinds of evidence: oral evidence and the electronic and scientific evidence. 42 As regards electronic evidence, learned counsel for accused has challenged the admissibility of this evidence in the form of CDs mark Q1 and Q2 .
43 Learned counsel for the accused has contended that these CDs are electronic evidence and in absence of any certificate u/s 65B of the Evidence Act, neither these CDs nor any transcripts prepared on the basis of voice recorded in these CDs can be read in evidence. In this regard, he has relied upon the judgment of Hon'ble Supreme Court in Anwar P.V. v. P.K. Basheer and others Civil Appeal no.4226/2012 decided on 18.09.2014 and Hon'ble Delhi High Court in Ankur Chawla & Anr. v. CBI & Ors., 2014 (10)LRC 96 Page No. 30 of 54 (Parveen Singh) Spl. Judge: CBI02:28.10.15 DEL.
44 Countering the same, learned Spl. PP has contended that there is no requirement of any certificate u/s 65B Evidence Act as in the audio conversation, the complainant and the independent witnesses have identified their voices. He has further contended that CFSL report has also established the genuineness of the CDs.
45 The Hon'ble Supreme Court has settled the law regarding the admissibility/ proof of electronic evidence in Anwar P.V's case (supra). It has been held by Hon'ble Supreme Court that if an electronic evidence is sought to be proved by way of secondary evidence, then certificate u/s 65B of Evidence Act is a mandatory requirement without which, no such evidence can be considered and read by any court. The Hon'ble Delhi High Court in Ankur Chawla's case (supra), quoting the judgment of Hon'ble Supreme Court in PV Anwar's case (supra), has held that to prove an electronic evidence by way of secondary evidence, certificate u/s 65B of Evidence Act is a mandatory requirement without which no such evidence can be considered.
46 Therefore in the present case, whether the CDs, which are Page No. 31 of 54 (Parveen Singh) Spl. Judge: CBI02:28.10.15 electronic evidence, are the primary evidence or secondary evidence is the first question which needs to be decided.
47 In the present case, there are two recordings i.e. demand verification recording and trap recording.
48 The officer incharge of demand verification proceedings was Insp. Shitanshu Sharma. He appeared as PW10 and deposed that after being assigned complaint Ex.PW7/A, he arranged a DVR and a blank CD. The blankness of the CD was ensured and thereafter, introductory voice of Mohd. Aslam was recorded in the DVR. For verification, they went to PS Hauz Khas and reached there at 06.00 p.m. Complainant went inside the police station alone and came after about 02 hours. The DVR was taken from the complainant and stopped. The recorded conversation was heard at the spot i.e. outside the police station which confirmed that the accused had demanded bribe. Thereafter, they came back to CBI office and with the help of a laptop, conversation which was recorded in DVR was transferred to a CD. The CD was signed by witness Md. Aslam and was marked as Q1. 49 The next witness to the verification proceedings is PW8 Md. Aslam. He deposed that on 27.12.2011, he was ordered to visit CBI office at Page No. 32 of 54 (Parveen Singh) Spl. Judge: CBI02:28.10.15 CGO Complex, New Delhi on 29.12.2011. He was ordered by the Under Secretary (Admn) Sh. Pradeep Gaur. This order was given to him in writing. Pursuant to that order, on 29.12.2011, he visited the CBI office. He was informed about the complaint of the complainant and the alleged demand of bribe by the accused. Preparations were made to visit PS Hauz Khas and a digital voice recorder was arranged. His voice was recorded in DVR whereafter, he alongwith Insp. Shitanshu Sharma and the complainant went to PS Hauz Khas. On getting down from the van, DVR was switched on and kept in the pocket of the complainant. The complainant alone went inside the police station . Around two hours later, the complainant came out of the police station and the DVR was switched off. The complainant told them that the police officer had demanded Rs.20,000/ and had asked him to come at around 11 a.m. on the next day. Thereafter, they went to CBI office. The DVR was played in the office and the conversation recorded in the DVR was heard by them. The recording in the DVR was transferred to a blank CD. He and the complainant signed on the CD.
50 The second CD is Mark Q2, which pertains to the recording of the day when trap was conducted. One witness to these proceedings was Page No. 33 of 54 (Parveen Singh) Spl. Judge: CBI02:28.10.15 PW8 Md. Aslam, who deposed that on that day, his voice and the voice of other independent witness were recorded in the DVR as introductory voices and the DVR was handed over to the complainant. He further deposed that after coming back to the CBI office (after trap at PS Hauz Khas), the DVR which was handed over to the complainant was played and the conversation was heard. Recordings were transferred on a blank CD with the help of a computer. He further deposed that as far as he remembered, the CD was marked as Mark Q2. Another CD of recording was also prepared which was also marked as mark Q2. The CD marked Q2 was signed by him and Raje Ram and thereafter, the CD was sealed.
51 Second independent witness is PW9 Raje Ram. He deposed that before proceeding to lay the trap, his voice and voice of Md. Aslam were recorded in voice recorder. They reached at PS Hauz Khan and DVR was kept in the pocket of Virender Singh (the complainant) in switched on mode. After reaching the CBI office, voice sample accused Pawan Yadav was also recorded. The DVR was played and they heard the conversation. The DVR was sealed and again said, he did not remember what more was done at CBI office. On being repeatedly questioned by the learned Spl. PP Page No. 34 of 54 (Parveen Singh) Spl. Judge: CBI02:28.10.15 about it, he stated that he did not recall that the recording in the DVR was transferred in a CD. The CDs were Q1 and S1. He further deposed that only two CDs were prepared.
52 The next witness of this account is PW11 Sunil Dutt, the trap laying officer. He deposed that on 30.12.2011, trap proceedings were conducted and in these proceedings, a DVR was arranged from the office in which sample voices were recorded. The function of the DVR was explained to the trap team by Sh. A. K. Mourya. Thereafter, they went to PS Hauz Khas. He further deposed that the conversation recorded in the DVR (during the trap proceedings) including the sample voices recorded during pre trap proceedings were transferred to a CD which was marked as mark Q2 (Ex.P3). The CD was signed by both the witnesses and was sealed with the CBI seal.
53 From the evidence of the witnesses as narrated above, the fact which is clearly established is, that on both the occasions, originally the recordings were captured in a DVR. These recordings were then transferred to audio CDs mark Q1 and Q2. It is also established that audio CDs were prepared by using a computer/ laptop. Therefore, the primary evidence of Page No. 35 of 54 (Parveen Singh) Spl. Judge: CBI02:28.10.15 these recordings were the DVRs in which these recordings were captured. The CDs which were prepared by copying the recordings are the secondary piece of evidence. That being the case, in view of the judgment of Hon'ble Supreme Court in Anwar P.V's case (supra), these CDs will not be admissible in evidence and thus, cannot be read in evidence without any certificate u/s 65B of the Evidence Act. Admittedly, no certificate u/s 65B of Evidence Act has been produced by CBI in order to prove the purity of the secondary evidence as required under section 65 B of the Evidence Act. I therefore, find that the contents of these CDs cannot be taken into consideration by the court as evidence. Resultantly, the transcripts which are prepared from the these CDs can also not be taken into consideration. 54 Now we come to the oral evidence. Through the oral evidence, the CBI has to prove the demand and acceptance of bribe by the accused. Surprisingly, from the case of the CBI, it is very much visible that in order to prove the demand and acceptance, the CBI from the very beginning had only one witness in the form of PW7. For the reasons best known to the CBI officers, neither at the stage of verification nor during the trap proceedings, any independent witness, arranged for the purpose of verifying the facts was Page No. 36 of 54 (Parveen Singh) Spl. Judge: CBI02:28.10.15 in the company of the accused and the complainant. Admittedly, the independent witness arranged by the CBI namely Md. Aslam did not accompany the complainant on 29.12.2011 at the time when the alleged pre verification of demand was made by PW10 Insp. Shitanshu Sharma. No reasons were assigned either by the IO, or by this witness for not accompanying the complainant despite the fact, that the only purpose for arranging this witness was for him to remain with the complainant and independently verify the fact that the accused had demanded a bribe. Not only this, even on the day when the trap was laid and was allegedly successful i.e. on 30.12.2011, this witness although allegedly accompanied the complainant to the room of the accused but came out of the room stating that he had to come out of the room due to paucity of the space. Not only this he even came out of the police station and did not even see the bribe money exchanging hands. The reason assigned for his coming out of the police station was that he did not want to raise any suspicion. This aspect will also be dealt at a later stage. Be that as it may, this leaves us only with the complainant to prove the demand and acceptance of bribe by the accused.
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(Parveen Singh) Spl. Judge: CBI02:28.10.15 55 The complainant appeared as PW7 but did not support the case of the prosecution either on the point of demand or of acceptance of bribe by the accused. The sum and substance of the deposition of PW7 is that he had been arrested by the accused in a FIR alleging that he had been plying the bus on a forged permit. He was arrested by the accused on 23.07.2011 and was released on bail on 20.09.2011. His maternal uncle Maha Singh had moved an application for grant of anticipatory bail and was granted anticipatory bail on 01.11.2011. As and when the police had called them for interrogation, they went to police. The accused did not intend to accept the bail and used to call them again and again. Being disturbed, he discussed the matter with his advocate who told him that police officials would not accept his bail without money. Then he discussed the matter with a regular passenger of his bus who took him to a CBI officer who told him that he had to arrange Rs.2030 thousand and they would fix the accused. He had informed Insp. Sunil Dutt that the accused had not demanded any bribe. He denied carrying any electronic gadget to the police station on 29.12.2011 and 30.12.2011. Further turning against the CBI, he stated that on 30.12.2011 after accepting the bail of his uncle, the accused asked them to Page No. 38 of 54 (Parveen Singh) Spl. Judge: CBI02:28.10.15 leave with the instructions that they were to come to Saket Court in the first week of January, 2012. He then spoke to Insp. Sunil Dutt who told him that unless money was given to the accused, he would not get rid of the case. When the accused had gone outside of his room, he was all alone in the room of the accused. He spoke to Insp. Sunil Dutt who asked him to keep the money anywhere in the room of the accused. He kept the money under the table of the accused and informed Insp. Sunil Dutt. Thereafter, all the persons who had come from CBI office came to the police station. The accused was found in another room and was apprehended. The accused was brought to his room. He (PW7) informed Insp. Sunil Dutt that money was lying under the table wherefrom two persons from the team took the money and counted it.
56 He was cross examined at length by learned Spl. PP. He kept reiterating the stand he had taken in his examination in chief that the accused had not raised any demand either prior to the day of trap or on the day when the trap was laid. He also denied having any digital voice recorder with him. He admitted his signatures on the complaint Ex.PW7/A dated 29.12.2011 but stated that he was made to write this complaint on Page No. 39 of 54 (Parveen Singh) Spl. Judge: CBI02:28.10.15 30.12.2011 and was asked to put the date as 29.12.2011. He admitted that in this complaint, he had narrated the story which had by that time taken place with him including demand of Rs.20,000/ as bribe made by the accused and volunteered, that he was given a written paper which he had reproduced in Ex.PW7/A. He denied that he had made complaint Ex.PW7/A on 29.12.2011 on his own, or that it was not got written from him by the CBI. He had also admitted his signatures at point A on verification memo Ex.PW7/B but stated that as per the instructions of CBI he had signed this document on 30.12.2011. He had also admitted his signatures at point A on handing over memo Ex.PW7/C and volunteered, that he had signed on Ex.PW7/C in the evening after coming back from the police station. He admitted that the bribe money which was recovered, was given by him to the CBI for the purpose of laying trap.
57 Despite a sustained cross examination, the CBI could not bring out anything from the complainant which could support its case. Therefore, at the most what the CBI has proved is, that the complaint Ex.PW7/A, the verification memo Ex.PW7/B and the handing over memo Ex.PW7/C had the signatures of the complainant.
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(Parveen Singh) Spl. Judge: CBI02:28.10.15 Could these documents be sufficient, despite the complainant turning completely hostile, to prove the demand and acceptance of bribe by the accused? The answer has to be in negative. On the contrary, a bare reading of the complaint seems to support the statement of the complainant that he had written the complaint as directed by the CBI or that he had reproduced the written complaint which had been handed over to him. I say so because, the complaint uses the words such as 'ukat bus' (the said bus), 'sandarbh me' (in relation to) and vivechna (investigation) which cannot be used by a layman and cannot be a part of his natural language. I therefore, find that the only witness of the prosecution who could have proved the demand and acceptance of bribe has not supported the case of the prosecution at all. Despite sustained cross examination, nothing incriminating against the accused could be brought out. 58 As already discussed, no independent witness was present at the time of demand or acceptance of bribe by the accused and therefore, there is no evidence which could have supported the theory of the CBI that the accused had in fact demanded and accepted the bribe of Rs.20,000/. 59 However, learned Spl. PP has vehemently argued that Page No. 41 of 54 (Parveen Singh) Spl. Judge: CBI02:28.10.15 recovery of the bribe money was effected from the room of the accused and from underneath the table top of his table. He has further contended that this fact coupled with the fact that hand washes and pocket wash of the accused were positive and CFSL result has established the presence of phenolphthalein in these washes, clearly establish the acceptance of bribe by the accused.
60 Countering it ld. counsel for the accused has contended that this entire case is cooked up by CBI. He contended that although the transcript cannot be used against the accused but as they have been placed on record by CBI they can be read against the prosecution, He contended that at one point in transcript it is shown that the accused had become aware about the presence of CBI in the police station. If that be the case then it was impossible that the accused would have accepts the bribe despite being aware about the presence of CBI team.
61 Let us take the aspect of recovery of the bribe amount. The TLO who appeared as PW11 deposed that at around 3.10 p.m, complainant Virender Singh came out of the police station and made a call on his mobile phone which was a signal of completion of transaction of bribe. The Page No. 42 of 54 (Parveen Singh) Spl. Judge: CBI02:28.10.15 complainant told him that the accused had taken Rs.20,000/ in his left hand and kept it in left side pocket of his trouser. He also informed that the accused was about to leave his room. On receipt of this information, he alongwith the CBI team, both the independent witnesses and the complainant immediately rushed to the room of the accused. The room no. 101 was found locked. The accused was searched for and was found at the first floor of the police station near record room. Insp. Pramod Kumar introduced himself and challenged the accused that he (the accused) had taken a bribe of Rs.20,000/ from the complainant. The accused became perplexed and offered to return the money. Meanwhile, the other members also reached there. Insp. Pramod Kumar and SI A. K. Mourya caught hold of the accused and the accused was brought to his room. His room was opened with the keys available with the accused. They entered the room. The accused was asked about the bribe money. He (the accused) informed that he had given the tainted amount to Ct. Ajay. However, on inquiries in the police station, it was revealed that there was no Ct. Ajay posted in that police station. Thereafter, colorless solutions of sodium carbonate was prepared and the accused was asked to dip his left hand fingers in the Page No. 43 of 54 (Parveen Singh) Spl. Judge: CBI02:28.10.15 solution and the solution turned pink. It was transferred into a bottle the neck of which was sealed with the seal of CBI and the bottle was marked as LHW and it was signed by both the witnesses. Again, a colorless solutions of sodium carbonate was prepared and the accused was asked to dip his right hand fingers in the solution and the solution turned pink. It was transferred into a bottle the neck of which was sealed with the seal of CBI and the bottle was marked as RHW and it was signed by both the witnesses. Similarly, in another colorless solution, left side pocket of the trouser of the accused was dipped and the solution turned pink. This was transferred in to a clean bottle and the bottle was marked with LPPW. After sealing, it was signed by both the witnesses. They searched for the bribe money and it was found placed below the table top as the table was such that its top could be lifted.
62 Now this entire story of recovery as narrated by PW11 does not seem to be creditworthy. I say so because all the witnesses including PW11, have specifically stated that the accused had accepted the bribe money with his left hand and kept it in left pocket of his trouser. The first instinct of the TLO to search for the bribe money should have been to take Page No. 44 of 54 (Parveen Singh) Spl. Judge: CBI02:28.10.15 the personal search of the accused. However, none of the witnesses have stated that the personal search of the accused was ever conducted and when the money was not found in left side pocket of his (the accused's) trouser, he was asked about the money or that it was then the search of his room was conducted. On the contrary, the CBI team immediately took the accused to his room. A suspicion lurkes in my mind that, was it because they were already aware that the money was not on the person of the accused but in the room ?
63 It is also to be noticed that CBI in order to prove the exclusive possession of the room wherefrom the money was allegedly recovered and thus the possession of tainted money with the accused, had put up a story that the room of the accused was locked and it was opened with a key produced by the accused. Surprisingly, neither that key, nor the lock was taken in possession.
64 It is also surprising that no evidence whatsoever was gathered from PS Hauz Khas to establish that a specific room or the specific room wherefrom the recovery had been effected was alloted to the accused and was in his sole possession. On the contrary, witness PW3 HC Ravinder Page No. 45 of 54 (Parveen Singh) Spl. Judge: CBI02:28.10.15 Kumar, during his cross examination, had stated that he was present in record room of the police station when the accused was apprehended by CBI officials. The accused was then taken by CBI officials in a room located at the first floor of PS Hauz Khas near the staircase and the said room was being used by SI Pawan Yadav and other officials of the police station. The said room was not locked and was opened by a push.
65 He was reexamined by learned Spl. PP and he deposed that he had not stated these facts to the IO Insp. SP Singh as he had only answered the questions which were put to him and had told these facts before the court on being questioned on these facts.
66 He was cross examined by Ld. Spl. PP. During his cross examination, he denied that SI Pawan Yadav used to sit in a room which was given room no. 101. Even during his cross examination, no suggestion was put to him that the room where, after his arrest, accused Pawan Yadav was taken was locked and was not opened with a push or that this room had been allotted to accused and was in his exclusive possession. 67 Apart from this witness, the defence had examined DW10 HC Sushil Kumar. This witness had stated that on the day the incident had Page No. 46 of 54 (Parveen Singh) Spl. Judge: CBI02:28.10.15 happened, he was sitting with accused Pawan Yadav in the room, which according to the CBI was the room of the accused. He was a witness to the arrest memo of Maha Singh, the maternal uncle of the complainant. His statement regarding the arrest of Maha Singh in FIR No. 205/2011 of PS Hauz Khas has been brought on record as Ex.DW10/1. He went on to depose, that no specific room was alloted to SI Pawan Yadav in PS Hauz Khas. It was a common investigating officers' room where the IOs could sit and do their work. The part of the testimony of this witness, that the accused had not been alloted any specific room or that the room where the accused was working was a common room, has remained unrebutted. 68 Therefore, on the one hand, the CBI has not led any positive evidence to establish that the room was alloted to the accused and thus, could have been in his exclusive possession, or was under his lock and key and on the other hand, the evidence of PW3 and DW10 that there was no room which was in exclusive possession of the accused stands unrebutted. Therefore, the fact that evidence has brought out before me is, that the tainted money was recovered from underneath the table top of a table in the room which was not in exclusive possession of the accused. That being the Page No. 47 of 54 (Parveen Singh) Spl. Judge: CBI02:28.10.15 case, it cannot be said that the recovery of tainted amount was effected from the accused.
69 Coming on to the hand washes and pocket wash of the accused. As per the allegations of the CBI, immediately after the trap, the left hand, the right hand and the left side pocket of trouser of the accused were dipped in solution of sodium carbonate and the solutions turned pink. These washes were transferred into three bottles, necks of which were sealed with the seal of CBI and were marked as LHW, RHW and LPPW. PW11, the TLO, deposed that the seized articles were deposited in the malkhana and all the documents were handed over to Insp. S.P Singh for further investigation. This fact becomes more important in view of the fact that IO Insp. SP Singh had manipulated the documents of this case. I say so because according to the IO, these washes were sent to CFSL vide letter Ex.PW13/A dated 20.01.2012. The letter Ex.PW13/A which is on record appears to be not the letter through which these washes were sent to CFSL and it is possible that it may have been prepared at a later stage. Ex.PW13/A is a letter having no. DAI2011A0032/837 dated 20.01.2012. This letter alongwith the chargesheet has been cited as D10. This is exactly the same Page No. 48 of 54 (Parveen Singh) Spl. Judge: CBI02:28.10.15 letter which appears in the Echallan as D10. However, it is significantly different in one aspect and that is that D10 as reflected in Echallan has a receiving of CFSL whereas Ex.PW13/A does not have any such receiving. Why that letter was not placed on record and why Ex.PW13/A was placed on record becomes clear from the receiving that has been noted on D10 in the Echallan. That receiving states that three bottles which had been marked as RHW had been received in Chemistry Division of CFSL, New Delhi. Surprisingly, the chemical report which is Ex.PW5/A goes on to state that it was regarding examination of three sealed bottles marked as RHW, LHW and LPPW. How on earth could a person receiving three bottles marked as RHW during chemical examination could find three bottles not marked as RHW but marked as RHW, LHW and LPPW is unexplained. Also to be noticed is the fact that PW5, the chemical examiner during his cross examination has stated that the chemical examination was started on 8.2.2012 and continued till 10.2.2012. He further deposed that exhibits were not sealed by him on 8.2.2012 and remained unsealed during the chemical examination till 10.2.2012. He denied that these samples were tampered with. However, the report is completely silent as in those custody Page No. 49 of 54 (Parveen Singh) Spl. Judge: CBI02:28.10.15 samples remained for two days when they were in unsealed condition then how the santity of the sample was maintained. Therefore, in view of this and in absence of any link evidence, any malkhana register to show that what was deposited in the malkhana by TLO, what was taken out from malkhana and sent to CFSL and in view of the manipulated document Ex.PW13/A being put on record instead of the original document D10 which appears in the Echallan, the entire exercise which seeks to establish that hand washes and the pocket wash of the accused was positive or that these hand washes and pocket wash were found to contain phenolphthalein seems to be highly doubtful and manipulated.
70 Before parting, I cannot fail to mention other shortcomings which prove the falsity of the case of the CBI.
71 As per the CBI, for the first time, the complainant had approached the CBI on 29.12.2011 and it is on that day, the complaint of the complainant was given to Insp. Shitanshu Sharma for verification who then arranged for an independent witness PW8 Md. Aslam. If that be the case then how could the superior officer of PW8 issue a written order dated Page No. 50 of 54 (Parveen Singh) Spl. Judge: CBI02:28.10.15 27.12.2011 directing PW8 to visit CBI office on 29.12.2011. In my opinion, it cannot be that the superior of PW8 had a premonition and could have known that a complaint would be made by the complainant on 29.12.2011 wherein the CBI, in order to verify the complaint, would require someone from his office and thus, two days in advance, he decided to depute PW8 for that purpose. It could only have been possible when even prior to 29.12.2011, the complainant was in touch with the CBI, when CBI had already decided to conduct some kind of verification on 29.12.2011 for which it had already requested the department of PW8 for deputing someone to act as an independent witness. This further raises doubts about the bonafides of the action taken by the CBI.
72 The other aspect is the presence of one Daya Nand at the time of trap being laid. The document Ex.PW2/DA, which is a surety bond and personal bond of Maha Singh, the maternal uncle of the complainant, clearly shows that one Daya Nand s/o Ram Chander had stood as surety for Maha Singh. The chargesheet is completely silent about the presence of Daya Nand. Although the complainant and Maha Singh (PW2) have admitted that Page No. 51 of 54 (Parveen Singh) Spl. Judge: CBI02:28.10.15 Daya Nand was present on that day and had stood surety for Maha Singh, PW8, PW9 and PW11 have lied through their teeth regarding the presence of Daya Nand and have completely denied his presence. 73 PW8 Md. Aslam, who was to act as a shadow witness and to pretend as a surety of Maha Singh, not only failed to do his part of pretending as surety of Maha Singh but was in complete denial of the presence of real surety of Maha Singh. He deposed that the maternal uncle of the complainant was alone when they were on their way to the police station. He further deposed that on 30.12.2011, Daya Nand, the other maternal uncle of the complainant did not go to the police station. He further deposed that he did not notice anyone entering room no. 101 when Virender Singh and Maha Singh were sitting there upto 02.00 p.m. 74 During the cross examination regarding the presence of Daya Nand, PW9 Raje Ram has deposed that when they met Maha Singh, the maternal uncle of the complainant, he (Maha Singh) was alone at that time and no person named Sh. Daya Nand was with him. He denied that Daya Page No. 52 of 54 (Parveen Singh) Spl. Judge: CBI02:28.10.15 Nand was also present with Maha Singh and due to pressure of CBI, he was deliberately concealing this fact. He denied that Daya Nand was with Maha Singh and had stood surety of Maha Singh.
75 PW11 had deposed that when they reached PS Hauz Khas, they met Maha Singh and Maha Singh was alone at that time. He denied that Maha Singh was not alone or that Maha Singh was accompanied by Daya Nand. He further denied that the complainant, Maha Singh and Daya Nand had gone to PS Hauz Khas and Md. Aslam was not allowed to accompany them.
76 Dayanand, the person who was present in the room and should have overheard the conversation and seen the transaction, has not only been not cited as a witness but the other witnesses have deliberately lied about his presence. It smells of a malafide concealment.
77 I find it my bounden duty to issue a word of caution that the acts of manipulations and concealments as reflected above can cause a Page No. 53 of 54 (Parveen Singh) Spl. Judge: CBI02:28.10.15 serious damage to the credibility of the premier investigating agency of this country. The faith of the people on this agency can be dealt a serious blow by such acts as have been done by the CBI officers in this case. 78 In view of my above discussion, I find that the CBI has failed to prove its case against the accused. The accused is accordingly acquitted of the charges framed against him. His bail bond stands cancelled. Surety stand discharged. File be consigned to the record room.
Announced in open court On 28.10.2015 Parveen Singh (This judgment contains 54 pages Additional Sessions Judge and each page bears my signature.) Spl. Judge(PC Act), CBI02: NDD. Page No. 54 of 54 (Parveen Singh) Spl. Judge: CBI02:28.10.15