Delhi District Court
Cbi vs Kapil on 6 August, 2025
CBI vs. Kapil & Anr.
DLCT110003962020
IN THE COURT OF SH. PRASHANT SHARMA,
SPECIAL JUDGE, PC ACT, CBI-15,
ROUSE AVENUE DISTRICT COURT NEW DELHI
CBI CASE NO. 43/2020
CNR NO. DLCT11-000-396-2020
FIR NO. RC-DAI-2020-A-0003-ACB-CBI-DL
UNDER SECTION 120-B IPC READ WITH SECTION
7 OF PREVENTION OF
CORRUPTION ACT, 1988
(As amended in 2018)
COMPLAINANT CENTRAL BUREAU OF
INVESTIGATION
REPRESENTED BY SH. NEETU SINGH, LD. SR. PP
ACCUSED 1. KAPIL
S/o Late Sh. Om Prakash
R/o WZ-296B, Madipur Village,
Delhi-110063.
2. DHAN SINGH
S/o Sh. Ram Kishan
R/o A-2/43, Sultanpuri C Block,
Sultanpuri, North-West Delhi-110086.
REPRESENTED BY Sh. Navit Bansal, Ld. Counsel for
accused no.1 - Kapil
Sh. Vikram Singh, Ld. Counsel for
accused no.2 - Dhan Singh
Digitally signed
CBI Case No.43/2020 by PRASHANT Page 1 of 187
SHARMA
PRASHANT
Date:
SHARMA 2025.08.06
16:10:21
+0530
CBI vs. Kapil & Anr.
DATE OF OFFENCE
24.01.2020 & 25.01.2020
DATE OF FIR
24.01.2020
DATE OF INSTITUTION
15.12.2020
DATE OF FRAMING OF
06.10.2021
CHARGES
DATE OF
08.11.2021
COMMENCEMENT OF
EVIDENCE
DATE ON WHICH
04.07.2025
JUDGMENT IS RESERVED
DATE OF JUDGMENT
06.08.2025
FINAL ORDER
CONVICTION
TABLE OF CONTENTS
Contents Page Nos.
S. No.
Prosecution Version and Allegations 5-12
1.
Charge on Accused Persons 12
2.
Proceedings during Trial
3.
Prosecution Evidence 13-43
Statement of Accused Persons 43-44
Defence Evidence 44-45
CBI Case No.43/2020 Page 2 of 187
CBI vs. Kapil & Anr.
Law relating to appreciation of Oral 45-48
4.
Evidence
Recapitulation of Prosecution Case 48-52
5.
Appreciation of Prosecution Evidence
6.
Oral testimonies 52-114
CDR & CAF Record 114-117
Tape Recorded Statements & Their 117-139
Transcripts
CFSL Report 139-142
Law relating to Statement of Accused 143-144
7.
Under Section 313 CrPC
Appreciation of Statement of A-1 Under
8.
Section 313 CrPC 145-152
Appreciation of Statement of A-2 Under
Section 313 CrPC
Appreciation of Defence Evidence 152-155
9.
Appreciation of Defence Arguments of
10.
A-1 155-171
Appreciation of Defence Arguments of
A-2
CONCLUSION 171-187
11.
CBI Case No.43/2020 Page 3 of 187
CBI vs. Kapil & Anr.
JUDGEMENT
1. Greed and Corruption are closely associated with each other. Greed can lead individuals to prefer their financial / materialistic well being over ethical considerations and well being of others. Often, greed can lead to corruption which erodes public trust in institutions, leading to social instability.
1.1 This case is one such example, which highlights, how MCD officials, who are Sanitary Officials and who are meant to clean the city, failed to clean their own minds from greed, leading them to face trial.
2. Central Bureau of Investigation (hereinafter referred to as 'CBI'), in this case, has charge-sheeted two accused persons namely; Kapil and Dhan Singh. At the time of alleged offence, accused Kapil was working as Assistant Sanitary Inspector (hereinafter referred as 'ASI') and accused Dhan Singh was working as Safai Karamchari in South Delhi Municipal Corporation (hereinafter referred to as 'SDMC'). Accused Kapil shall be referred as A-1 and accused Dhan Singh shall be referred as A-2 in subsequent paragraphs.
CBI Case No.43/2020 Page 4 of 187PROSECUTION VERSION & ALLEGATIONS
3. Facts alleged by prosecution shorn of much detail, which can be gleaned from charge-sheet are;
3.1 On 24.01.2020, complainant, namely Ranvir Singh had given written complaint to Superintendent of Police (hereinafter referred to as 'SP'), CBI and Assistant Commissioner of Police (hereinafter referred to as 'ACP'), Delhi stating that he was working as Safai Karamchari in Department of Delhi Environment Management Services (hereinafter referred to as 'DEMS'), Ward No.03S, Raja Garden, South Delhi Municipal Corporation. After completing 22 years of service, he was regularized as regular Swachchta Karamchari by SDMC. When he approached A-1 for joining as regular Swachchta Karamchari, he was told by A-1 that Sanitary Inspector (hereinafter referred to as 'SI') Rajendar Sharma was demanding Rs.15,000/- for providing him with post and in case, he failed to pay the bribe, SI Rajendar Sharma will not give him any post. Based on the said allegations, complainant prayed that appropriate legal action be taken against A-1 and SI Rajendar Sharma.
3.2 After receiving above mentioned complaint, SP, CBI directed SI Vikrant Tomar to verify the same. Consequently verification was conducted on 24.01.2020 by CBI team which visited SDMC, the Department of DEMS. That team prepared report dated CBI Case No.43/2020 Page 5 of 187 CBI vs. Kapil & Anr.
24.01.2020 which was accompanied with recorded conversation between complainant and accused A-1. Based on such verification report, it was found that prima facie offence punishable under Section 7 of Prevention of Corruption Act, 1988 as amended in 2018, (hereinafter referred as 'PC Act') was committed by A-1. Consequently, FIR in question was registered and matter was handed over to Inspector Dharmendar Kumar Singh for investigation.
3.3 During investigation, a team comprising of Inspector Dharmendar Kumar Singh, complainant, two independent witnesses, namely; Nitin and Naveen Bhardwaj along with CBI team members assembled in CBI office. Pre-trap proceedings were conducted, which included following activities viz.,
(i) Complainant furnished Govt. Currency notes (in short GC notes) of Rs. 15,000/- of specific denomination;
(ii) Handing over memo was prepared in which details of cash notes were mentioned;
(iii) GC notes were treated with phenolphthalein powder;
(iv) Demonstration of effect of phenolphthalein powder with sodium carbonate solution turning that colourless solution into pink colour, was given to the team members;
(v) CBI brass seal was furnished by independent witness namely Nitin Kumar and same was used in verification proceedings held on 24.01.2020;
CBI Case No.43/2020 Page 6 of 187(vi) Tainted bribe amount of Rs. 15,000/- was kept by independent witness, namely, Nitin Kumar in the right side pant pocket of complainant;
(vii) Direction was given to complainant to not touch such tainted bribe amount and the same be handed over to the accused only on the specific demand of accused and not otherwise and in the alternative, on the specific direction of accused to some other person;
(viii) One new SD card was opened in the presence of both independent witness and complainant. Same was inserted in recording device;
(ix) All the team members washed their hands with soap and water;
(x) Nitin Kumar (independent witness) was asked to act as shadow witness and to remain close to complainant for overhearing the conversation and for watching the transaction of bribe amount being given by the complainant to A-1;
(xi) Complainant was directed to give signal by rubbing his face with his both hands after conclusion of handing over bribe amount to A-1;
(xii) Besides giving said signal, complainant was asked to give a missed call from his mobile phone to the mobile being carried by Trap Laying Officer (hereinafter referred to as 'TLO'), immediately after conclusion of transaction of bribe;
CBI Case No.43/2020 Page 7 of 187(xiii) Further, the independent witness, namely Naveen Bhardwaj was directed to remain with trap team.
3.4 All the said pre-trap proceedings were concluded at about 12:55 hrs and were recorded in handing over memo dated 25.01.2020. All the trap team members signed the handing over memo at CBI Office, in token of its correctness and genuineness.
3.5 Subsequently, said trap team left CBI Office in official vehicles and reached DEMS, SDMC, Raja Garden where after parking the vehicle on the service, it was decided that complainant shall go and meet A-1 in his office while carrying recording device. The recording device was handed over to complainant in 'Switch-On' mode, which complainant kept in left side pocket of his shirt.
3.6 Thereafter, complainant alongwith shadow witness left for Ward Office, DEMS, SDMC while independent witness Naveen Bhardwaj and remaining team members followed them and took their positions in and around SDMC Ward Office.
3.7 When complainant went inside SDMC Ward Office, he found that A-1 was not present. Thereafter, complainant went to meet SI Rajendar Sharma in his office situated at 618, First Floor, Four Storey Building, Vishal Enclave, New Delhi but SI Rajendar Sharma refused to give him any posting. As such, SI Rajendar Sharma did not demand bribe explicitly and complainant returned back to CBI team.
CBI Case No.43/2020 Page 8 of 1873.8 Subsequently, trap was again laid on the same day and complainant was sent to A-1. On meeting A-1, complainant found A-1 got agitated as complainant had met SI Rajendar Sharma. ASI Rameshwar, who was present there, told complainant to resolve the issue.
3.9 Complainant was then referred to A-2, Safai Karamchari, SDMC by A-1. Accused A-2 escorted complainant outside and talked to A-1 on mobile phone. He emphasized on the demand of Rs. 20,000/- by A-1. Thereafter, complainant returned back to CBI team.
3.10 Complainant was again sent to meet A-1, who refused to accept any bribe money without the consent of SI Rajendar Sharma.
3.11 All the proceedings of 25.01.2020, as noted above, were recorded in SD card Q-2 through recording device. Copy of said SD card was prepared. SD card Q-2 was then packed in plastic case and then it was put in brown colour envelope which was sealed. Said plastic cover and brown colour envelope were signed by complainant, independent witnesses and TLO. The Panchnama dated 25.01.2020 was prepared in CBI Office which was signed by complainant, independent witness and all the team members.
3.12 On 27.01.2020, the complainant received a call from A-2, who asked complainant to meet A-1 on 28.01.2020. A trap was again CBI Case No.43/2020 Page 9 of 187 CBI vs. Kapil & Anr.
laid on 28.01.2020. Proceedings on 28.01.2020 were recorded in SD card Q-3, through recording machine. A copy of the SD card was prepared, SD card Q-3 was packed in a plastic case and then it was put in brown colour envelope and sealed. Said plastic cover and brown colour envelope were signed by the complainant, independent witnesses and TLO.
3.13 Subsequently, investigation of the case was entrusted by SP, CBI to Sub-Inspector Sumit Kumar. Permission under Section 17 PC Act was obtained.
3.14 During investigation statements of witness were recorded. Vide separate voice identification-cum-transcription memo, transcription of recorded conversation by playing copy of SD cards Q-1, Q-2 and Q-3 were prepared in the presence of complainant and both independent witnesses. Complainant identified his voice and that of accused. Complainant also identified the voice of SI Rajendar Sharma, ASI Ramesh and A-2. Transcription-cum-voice identification memo was signed by complainant and both independent witnesses. A-1, SI Rajendar Sharma, ASI Ramesh and A-2 were asked to join investigation and their specimens voices were recorded in the presence of independent witnesses.
3.15 Original SD card Q-1, Q-2, Q-3, S1 to S4 alongwith two DVRs in sealed condition were sent to Central Forensic Science CBI Case No.43/2020 Page 10 of 187 CBI vs. Kapil & Anr.
Laboratory (hereinafter referred to as 'CFSL') for getting expert opinion based on comparison of voice of accused persons with their respective specimen voices.
3.16 CFSL report was furnished in the Court after filing of charge-sheet on 17.08.2021 alongwith original SD cards and DVRs.
3.17 Witnesses, namely, SN Vashisth, Sanitary Superintendent, Ward 003 S, DEMS, SDMC and Rameshwar Dayal, Assistant Sanitary Inspector, identified the voice of A-1, SI Rajendar Sharma & A-2. Besides that witness SN Vashisth identified the voice of ASI Rameshwar also. Same was done in the presence of independent witness who was well acquainted with the voice of the said persons.
3.18 Call Details Record (hereinafter referred to as 'CDR') and Customer Acquisition Form (hereinafter referred to as 'CAF') of mobile numbers of accused persons and complainant alongwith certificate under Section 65-B of Indian Evidence Act were collected from the concerned service providers.
3.19 Witness Pradeep Sharma, AO, DEMS, SDMC produced documents viz., posting orders of SI Rajendar Sharma, A-1, ASI Rameshwar Dayal and joining report of complainant. His statement with regard to the said orders and postings was recorded separately.
CBI Case No.43/2020 Page 11 of 1873.20 Based on above mentioned investigation, IO concluded that accused persons A-1 and A-2 had committed offence punishable under Section 7 of PC Act and under Section 120-B of Indian Penal Code (hereinafter referred to as 'IPC'). The charge-sheet was accompanied with necessary sanction orders for prosecution under Section 19 of PC Act, which was accorded by the competent authority.
4. After filing of the charge-sheet, Court took cognizance of offences on 18.12.2020.
CHARGE ON ACCUSED PERSONS
5. Proceedings under Section 207 Cr.P.C were concluded and after hearing arguments on charge, accused persons were charged with Section 120-B IPC r/w Section 7 of PC Act, collectively as well as for the substantive offence under Section 7 of PC Act, individually. Accused persons did not plead guilty and claimed trial.
6. Matter was then fixed for prosecution evidence.
7. Prosecution examined 15 prosecution witnesses (in short "PWs") in total.
CBI Case No.43/2020 Page 12 of 187PROSECUTION EVIDENCE
8. PW1 - Rajiv Vashisht deposed in his testimony that since 2019, he was working as Nodal Officer in Bharti Airtel Ltd. In 2020, Bharti Airtel Ltd. received a letter from CBI, thereby seeking CAF and CDR with respect to mobile numbers 9312109329 and 9212604605. He was authorized by Bharti Airtel Ltd. to furnish the said documents to CBI. Consequently, he responded CBI by writing a letter Ex.PW1/1, bearing his signature at point A. He identified copy of CAF pertaining to mobile no.9312109329, which was in the name of Ranveer Singh (complainant herein) as Ex.PW1/2 bearing his signature and seal at point A and B respectively. He identified CDR of the said mobile number for the period from 22.01.2020 to 25.01.2020 as Ex.PW1/3 (colly), bearing his signature and seal at point A & B respectively. He identified copy of CAF of mobile no.9212604605, which was in the name of A-1 as Ex.PW1/4, bearing his signature and seal at point A and B respectively. He identified CDR of said mobile number of A-1, for the period from 22.01.2020 to 25.01.2020 as Ex.PW1/5, bearing his signature and seal at point A & B respectively. He marked the entries with red pen, showing communication between the users of said mobile numbers, on the day of his testimony. He identified certificate under Section 65-B of Indian Evidence Act (in short 'IEA') dated 05.08.2020, pertaining to above mentioned electronic record as Ex.PW1/5A, bearing his signature and seal at CBI Case No.43/2020 Page 13 of 187 CBI vs. Kapil & Anr.
point A & B respectively. He furnished CDRs of above mentioned mobile numbers to CBI for the period 25.01.2020 to 03.02.2020, vide his letter Ex.PW1/6 bearing his signature and seal at point A & B respectively. When he was asked by CBI on 19.02.2020, he identified CDRs of said mobile numbers as Ex.PW1/7 and Ex.PW1/8, bearing his signature and seal at point A & B respectively. He identified certificate under Section 65-B IEA dated 19.02.2020 with respect to said electronic record as Ex.PW1/9 bearing his signature and seal at point A & B respectively.
9. PW2 Saurabh Aggarwal deposed in his testimony that in 2020, he was posted as Nodal Officer in Vodafone Idea Ltd., at Okhla. CBI had made correspondence with Vodafone, pertaining to this case, at that time and had asked for CAF and CDR of mobile numbers 8527598608 and 9654397973. That record was handed over to CBI vide handing over cum taking over memo dated 05.08.2020, Ex.PW2/1, bearing his signature at point A. He identified CAF record of mobile number 9654397973 as Ex.PW2/2, which was in the name of Ms. Sapna W/o Sh. Kapil, bearing his signature and seal at point A & B respectively. The CDR of the said mobile phone was identified by him as Ex.PW2/3, bearing his signature on all pages and seal of his office at points A & B respectively. He identified certificate under Section 65-B IEA with respect to said record as Ex.PW2/4, bearing his signature and seal of his office at point A & B respectively. He identified CAF with respect to mobile number 8527598608, as CBI Case No.43/2020 Page 14 of 187 CBI vs. Kapil & Anr.
Ex.PW2/5, bearing his signature and seal of his office at point A & B respectively, which was in the name of North Delhi Municipal Corporation (in short 'NDMC'), which was used by the user namely Rajendar Sharma. He identified CDR of the said mobile number as Ex.PW2/6, bearing his signature and seal of his office at point A & B respectively. He identified certificate under Section 65-B IEA with respect to said electronic record as Ex.PW2/7, bearing his signature and seal of his office at point A & B respectively. He identified CDR of the said mobile number for the period 25.01.2020 to 03.02.2020, as Ex.PW2/8, bearing his signature and seal of his office at point A & B respectively. He identified certificate under Section 65-B IEA with respect to said CDR as Ex.PW2/9, bearing his signature and seal of his office at point A & B respectively. As per him, on 17.03.2020, on the asking of CBI, he had handed over CDRs of mobile number 9654397973 to CBI vide letter Ex.PW2/10, bearing his signature at point A. He identified CDR of said mobile number for the period 25.01.2020 to 03.02.2020 as Ex.PW2/11, bearing his signature at point A and seal of his office at point B. He identified certificate under Section 65 B IEA with respect to said electronic record, as Ex.PW2/12, bearing his signature and seal of his office at point A & B respectively.
10. PW3 - Ranveer Singh was the complainant in this case, who reiterated his allegations, as made by him, in his complaint to CBI, in his examination in chief, which are not repeated here for the CBI Case No.43/2020 Page 15 of 187 CBI vs. Kapil & Anr.
sake of brevity. He identified his complaint made to CBI as Ex.PW3/1 bearing his signature at point A. Besides that, he deposed about the proceedings based on verification of his complaint done by CBI, pre-trap proceedings and trap proceedings, in sync with prosecution version as mentioned in para-3 of the judgment. Same are not repeated here for the sake of brevity. He identified documents viz., verification memo prepared by CBI in his presence Ex.PW3/2, bearing his signature at point A, transcript of file 200124_1437 in SD card Ex.PW3/3, transcript of audio file bearing number 200124_1530 Ex.PW3/4, envelopes with SD card Ex.PW3/5, handing over memorandum Ex.PW3/6, Panchnama proceedings dated 25.01.2020 Ex.PW3/7 bearing his signature at point A on all four pages, transcript of audio file no.200125_1226 Ex.PW3/8, transcript of audio file no. 200125_1230 Ex.PW3/9, transcript of audio file no.200125_1358 Ex.PW3/10, transcript of audio file no. 200125_1417 Ex.PW3/11, envelope and enclosures Ex.PW3/12, transcript of audio file no. 200125_1528 Ex.PW3/13, Panchnama proceedings Ex.PW3/14, memo bearing his signature at point A Ex.PW3/15, yellowish colour envelope, brown colour envelope, paper packet, plastic cover, SD card collectively as Ex.PW3/16, transcript of audio file no.200128_1150 Ex.PW3/17, transcript of audio file no.200128_1152 Ex.PW3/18, transcript of audio file bearing no.200128_1156 Ex.PW3/19, transcript of audio file bearing no.200128_1340 Ex.PW3/20, transcript of audio file bearing no.200128_1359 Ex.PW3/21, transcript of audio file bearing CBI Case No.43/2020 Page 16 of 187 CBI vs. Kapil & Anr.
no.200128_1529 Ex.PW3/22, transcript of audio file bearing no.200128_1536 Ex.PW3/23, transcript of audio file bearing no.200128_1537 Ex.PW3/24, transcript of audio file bearing no.200128_1645 Ex.PW3/25, transcript of audio file bearing no.200128_1646 Ex.PW3/26, transcript of audio file bearing no.200128_1701 Ex.PW3/27. He identified Panchnama proceeding Ex.PW3/28 bearing his signature at point A and transcript along with voice identification-cum-transcription memos Ex.PW3/29 (colly). He identified yellow envelope and brown envelope and DVR (I) as Ex.PW3/30 (colly). He identified the electronic record which were used during investigation. He also deposed that he used his mobile no.9312109329 during his conversation with the accused persons. He categorically deposed that A-1 had demanded money as illegal gratification making him a permanent employee of the department and posting pursuant thereto. He also deposed that A-2 was working with A-1 in the same office, at that time. A-1 asked him to go out and talk with A-2 in this regard.
11. PW4 - Ramesh Verma has deposed in his testimony that in the year 2020, he was posted as an Addl. Commissioner in South DMC. As per him, Ward bearing No.003S DEMS, SDMC, Delhi was falling within his jurisdiction. He deposed that at that time, he was competent to remove both accused persons. He identified his signature at point A in sanctioned orders Ex.PW4/1 (colly) and CBI Case No.43/2020 Page 17 of 187 CBI vs. Kapil & Anr.
Ex.PW4/2 (colly) which he had passed under Section 19 of the PC Act, thereby granting sanction for prosecution of accused persons.
12. PW5 - Shiriniwas Vashisth deposed in his testimony that on 12.10.2020, he was working as Sanitary Superintendent in the Department of DEMS in West Zone (SDMC), Delhi. He retired from the said service on 31.07.2018. Thereafter he continued to work as Consultant in the same department on contractual basis. Besides that PW5 deposed following facts.
12.1 That he was acquainted with both accused persons along with Rameshwar and Rajendar Sharma, as they were his employees and used to work under his supervision. He categorically deposed about the official ranks of those persons including accused persons. He identified accused persons in Court.
12.2 That during investigation, he was called by CBI at its office, where he was asked to identify the voice of the persons, who were found in conversation, in the said audio recordings. He identified voices of accused persons, Rameshwar and Rajendar Sharma after listening said audio recordings. Some documents were prepared by CBI officials.
12.3 That in the presence of PW5, MHC(M) produced four separate sealed envelopes which were already exhibited as CBI Case No.43/2020 Page 18 of 187 CBI vs. Kapil & Anr.
Ex.PW3/5(colly) and Ex.PW3/12. From said envelopes, SD cards were taken out. In those SD cards, prosecution found certain relevant audio files viz., 200124_1530, 200125_1358, 200125_1417 and 200125_1528. Those cards were played and after hearing those audio files, PW5 identified voices of accused persons, complainant and ASI Rameshwar. Those audio files were compared with their transcripts, which were part of Ex.PW5/1 (colly) and were found to be in conformity.
13. PW6 - Ranjan Kumar has deposed in his testimony that on 10.08.2020 he was posted as Junior Assistant in his office of Registrar of Cooperative Societies, Parliament Street, New Delhi. On the said date, the CBI Officials had called him to their office through notice which was requisitioned in Registrar Office. Thereafter his name was put up by Assistant Registrar and he was asked to report to CBI office. Thereafter, he went to CBI Office on 10.08.2020 and met with CBI official Sumit Kumar. He was informed that a voice recording of about four persons recorded and he had to be a witness of the same. He was also informed that he will have to speak first and last sentences and in between voice sample of other four persons shall be recorded. Thereafter, voice sample of both accused persons, Rameshwar and another person whose name, he could not recall, were recorded in the new DVR and micro SD card, each, separately. (They were four in number). The DVR and SD Card were in sealed condition and were opened in his presence by Sumit Kumar. The CBI Case No.43/2020 Page 19 of 187 CBI vs. Kapil & Anr.
DVR and SD cards were played in his presence, prior to recording of voice samples and they were all blank at that time. A sample voice recording memo was prepared at that time and he had signed on the said memo.
13.1 PW6 identified the sample voice recording memos bearing his signature at point A as Ex.PW6/1 to Ex.PW6/4. He deposed that a seal was also affixed on each of the said memos at point B and that seal was handed over to him by Sumit Kumar. He produced the said brass seal and same was marked as Ex.PW6/5. As per him, all 4 persons viz., accused persons, complainant and Rameshwar had given their voice samples voluntarily without any pressure.
13.2 PW6 further deposed that in his presence, MHC(M) produced four yellowish envelopes which were sealed with the seal of SSO-II (PHY) CFSL CBI New Delhi. Those envelopes were opened and one brown envelope in unsealed condition was found in each of said envelopes, which was opened. Separate SD cards were taken out from said brown envelopes and they were played in the open Court through write blocker in a laptop.
13.3 PW6 identified his signature at point A on the above mentioned brown envelopes. He identified the signature of accused persons at point B on said envelopes. Those yellowish envelopes, CBI Case No.43/2020 Page 20 of 187 CBI vs. Kapil & Anr.
brown envelopes along with SD card and company packaging were marked as Ex.PW6/6 (colly) to Ex.PW6/9 (colly).
13.4 PW6 identified his voice and that of A-1 in SD Card which is part of Ex.PW6/6 (colly). PW6 identified his voice and that of A-2 in SD Card which is part of Ex.PW6/7 (colly). PW6 identified his voice and that of Rajendar Sharma in SD Card which is part of Ex.PW6/8 (colly). PW6 identified his voice and that of Rameshwar in SD Card which is part of Ex.PW6/9 (colly).
14. PW7 Rameshwar Dayal deposed in his testimony that he had joined in Ward No.003, SDMC as Assistant Sanitary Inspector, in February 2019 and was transferred from there to Ward No.25, Mohan Garden, SDMC in August 2020. He explained that a Safai Karamchari employee in his department, is under the supervision and control of a Sanitary Inspector. He was acquainted with both accused persons and identified them in the Court. He knew about the official ranks of both accused persons which he deposed correctly in his testimony. As per him, on 25.01.2020, when he had gone for marking his attendance on the attendance register, he found both accused persons and complainant. He heard A-1 asking for Rs.20,000/- from complainant and saying '20,000 rupaye lagenge' while the complainant offering him a sum of Rs.15,000/-. He deposed that there was some 'len den' between the said persons, which was for the purpose of complainant joining his duty. He saw A-1 sending A-2 CBI Case No.43/2020 Page 21 of 187 CBI vs. Kapil & Anr.
along with complainant for settling the matter. He had advised them to resolve the issue and not to linger on.
14.1 PW7 identified the voices of complainant and Rajendar Sharma in audio file no. 200125_1358, which is part of yellowish envelope Ex.PW3/12 (colly), which contained one micro SD card in which abovementioned audio file was recorded, besides other files.
14.2 PW7 also identified the voices of A-1 and complainant in audio file no. 200125_1417, which is part of yellowish envelope Ex.PW3/11, which contained one micro SD card, in which abovementioned audio file was recorded besides other audio files.
15. PW8 Nitin Kumar was an independent witness, who had joined the investigation proceedings. In his testimony, he deposed following facts :-
15.1 That in January 2020, he was posted as a Clerk in Bank of India, CGO Complex, New Delhi. On 24.01.2020, as per the instructions of AGM, he had appeared before CBI and had met Duty Officer, who had directed him to report to SI Vikrant Tomar.
Accordingly, he met SI Vikrant Tomar. At that time, complainant and friend of SI Vikrant Tomar, namely Virendar Singh, were also present with SI Vikrant Tomar. SI Vikrant Tomar told him about the complaint of complainant which was addressed to CBI. That complaint was read CBI Case No.43/2020 Page 22 of 187 CBI vs. Kapil & Anr.
over to him and verification proceedings were conducted. He recorded his introductory voice in new DVR containing new SD card, arranged by CBI officials. That SD card was blank. Thereafter, they went to SDMC Office, Raja Garden, where DVR was put with complainant on switch-on mode for recording the conversations. He was asked to remain close to complainant and to try to overhear their conversation if possible. Thereafter, they went to the office of MCD, in Room No.14 where after leaving him outside, complainant went inside. Complainant, at that time, was carrying DVR in 'Switch-On' mode, in his pocket. After 10-15 minutes, complainant came outside and thereafter, both of them came back to TLO/Verification Officer. The DVR was then switched off. On inquiry by SI Vikrant Tomar, complainant told him about what had happened inside the room. Complainant told that he had spoken to A-1, who in turn had spoken to SI Rajendar Sharma on phone. A-1 told complainant that SI Rajendar Sharma was not in the office and A-1 asked complainant to come on next day. A-1 told complainant after talking to SI Rajendar Sharma on phone that SI Rajendar Sharma was asking Rs.20,000/- only, which complainant had to arrange. A-1 told complainant that he would try to convince SI Rajendar Sharma for a sum of Rs.15,000/- and asked complainant to come on next day at 3.00 PM. Consequently, PW8, complainant and SI Vikrant Tomar reached back to CBI office where SD card was taken out from DVR and a copy of the same was prepared, which was played in their presence. Original SD card was covered and sealed in his presence. The sealed envelope CBI Case No.43/2020 Page 23 of 187 CBI vs. Kapil & Anr.
was signed by him. In his presence, in the Court one yellow colour sealed envelope, with the seal of 'AA' was opened, on which he identified his signature at point B. It contained SD card and same was marked as Ex.PW3/5 (colly). The SD card containing file no. 200124_1437 in Ex.PW3/5 (colly) was played in the Court and it contained introductory voice of PW8, which he identified. Subsequently, audio file bearing no. 200124_1530 was played in which he identified the voice of complainant. The transcripts of the said audio recordings viz., Ex.PW3/3 and Ex.PW3/4 were found to be correct.
15.2 PW8 identified his signature as point B in verification memo Ex.PW3/2. He identified the complaint of complainant, which was shown to him in CBI Office as Ex.PW3/1. Besides that PW3 further deposed following facts.
15.3 That he reached the Office of CBI, again on 25.01.2020, where he had met SI Vikrant Tomar, who told him that investigation was assigned to Sh. Dharmendar Kumar Singh. Thereafter, he met Sh. Dharmendar Kumar Singh, complainant, Virendar and other independent witness Naveen Bhardwaj (Inspector, GST) alongwith CBI Officials. Sh. Dharmendar Kumar Singh, briefed the said persons including PW8 about the facts of the case. A new SD card was played in a DVR, handed over by SI Vikrant Tomar to Sh. Dharmendar Kumar Singh. It was found to be blank on checking. Introductory CBI Case No.43/2020 Page 24 of 187 CBI vs. Kapil & Anr.
voice of PW8 was recorded in the said SD card. Thereafter, GC notes in the sum of Rs.15,000/-, with denominations of Rs.2000X6 and Rs.500X6 were taken from complainant from CBI Officials. Subsequently, phenolphthalein powder was applied to the said currency notes. It was informed that if said notes with phenolphthalein powder were dipped in the solution of Sodium Carbonate and water, the solution would turn pink. A demonstration in this regard was given by CBI Officials, during which GC notes were touched with phenolphthalein powder, by other independent witness Naveen Bhardwaj. That witness washed his hand in Sodium Carbonate solution, which turned pink. That pink solution was then thrown away.
15.4 That complainant was given instructions to give a signal by rubbing his face with his hands when bribe money was handed over to accused. Complainant was instructed to hand over the bribe money, only when it was demanded by the accused. After applying the powder, that bribe money was put in the pocket of complainant by him. Thereafter, he washed his hands and took personal search of complainant. He only found mobile phone and the trap money with complainant. A memo of the proceedings was prepared and all the team members, present there, including this witness, signed it. He identified his signature at point D in the handing over memo Ex.PW3/6.
CBI Case No.43/2020 Page 25 of 18715.5 That entire trap team left CBI Office for SDMC Office, Raja Garden, in the official vehicles, arranged by CBI. After reaching there, he was again briefed, to remain close to complainant in order to overhear the conversations, between complainant and accused person. The DVR was put on 'Switch-On' mode, which was with complainant. Then, he alongwith complainant went to SDMC Office, in Room No.14, but he remained outside the said room and complainant went inside. A-1 used to sit in the said room but he was not present, at the time, when complainant had gone inside and therefore, complainant came back. Then he alongwith complainant went to the first floor of residential complex, which was inside the SDMC Office. Again complainant went inside the room in said residential complex and he remained outside that room. Thereafter, both of them came back to CBI Official Sh. Dharmendar Kumar Singh, who was present near the vehicles. The DVR was then switched off by Sh. Dharmendar Kumar Singh. On inquiry, complainant told about the facts regarding him going to the office and residential complex, SDMC, as mentioned above, but could not meet A-1. Complainant told that he was informed by SI Rajendar Sharma whom he had met, that SI Rajendar Sharma was not having any post and therefore, complainant was asked to meet A-1 regarding posting.
15.6 That complainant was asked to make a call to A-1 and DVR was again put in 'Switch-On' mode. Complainant made call to A-1 while putting his phone on speaker mode. As a result of that, CBI Case No.43/2020 Page 26 of 187 CBI vs. Kapil & Anr.
PW8 was able to hear the conversations between complainant and A-1. He heard, during said call that A-1 had told complainant that complainant should reach there in 10-15 minutes and to wait in his office. The DVR was then switched off. Subsequently, they waited near the vehicles and thereafter, on the instructions of CBI Officials went to the office of A-1. Before going there, DVR was put on 'Switch-On' mode.
15.7 That after reaching the office of A-1, complainant went inside the room and came back after sometime alongwith one person. PW8 went near them. Subsequently, they came back near vehicles where Sh. Dharmendar Kumar Singh was present, who switched off the DVR being carried by complainant and inquired from complainant as to what had happened. In response to the same, complainant told that A-1 was angry for the reason that complainant had gone to SI Rajendar Sharma. Complainant told that he was accompanied with A-2, when he came out of the office of A-1. It was A-2 who discussed the matter with complainant and who had called A-1 on phone, outside the office of A-1. It was A-2 who had told complainant that he was not agreeing to any amount, less than Rs. 20,000/-.
15.8 That he alongwith complainant were instructed by CBI Officials to go and meet A-1 in his office. DVR with 'Switch-On' mode was again kept with complainant, who went inside the office/ CBI Case No.43/2020 Page 27 of 187 CBI vs. Kapil & Anr.
Room No.14 of A-1 whereas PW8 remained outside. Subsequently, complainant came out of the office of A-1 and both of them went near the vehicles where they met CBI Officials. The DVR was switched off and complainant was asked by CBI Officials. Complainant told them that A-1 was angry as he questioned complainant as to why complainant had gone to SI Rajendar Sharma. The trap team came back to CBI Office where DVR was taken from complainant and its copy was prepared and was played in the presence of PW8.
15.9 That SD card was sealed in a plastic cover, signed by him and other witnesses and memo was prepared with regard to the proceedings which had taken place, noting down the signature of the witnesses.
15.10 That in his presence one yellow colour envelope with the seal of 'AA' Ex.PW3/12 (colly) was opened, which contained SD card having audio files viz., 200125_1226, 200125_1230, 200125_1358, 200125_1416, 200125_1417 and 200125_1528. He identified his voice in audio file-200125_1226, when it was played in the Court. He identified the voice of independent witness Naveen Bhardwaj in audio file-200124_1530, when it was played in the Court. He identified the voice of independent complainant in audio file-200125_1358, when it was played in the Court. He identified the voice of independent complainant and accused in audio file-200125_1417, when it was played in the Court. He identified the CBI Case No.43/2020 Page 28 of 187 CBI vs. Kapil & Anr.
voice of complainant and accused in audio file 200125_1528, when it was played in the Court. Transcripts of the said audio files viz., Ex.PW3/8 to Ex.PW3/13 respectively, were found to be in tune with the contents of audio files.
15.11 PW8 identified his signature in Memorandum of Proceedings dated 25.01.2020 Ex.PW3/14 at point B. 15.12 That he was again called at CBI Office on 28.01.2020 where he had met TLO Sh. Dharmendar Kumar Singh alongwith his friend Virendar Singh, independent witness Aditya Kumar and some officials of CBI. Complainant had told that he had received a call on 27.01.2020 from A-2 who had asked complainant to come to his office at Raja Garden. Accordingly, fresh DVR alongwith new SD card was arranged by CBI Officials. It was played and was found to be blank. Introductory voice of PW8 and Aditya Kumar were recorded in SD card. Complainant informed that A-2 was not agreeing with Rs.15,000/- rather was demanding Rs.20,000/- only. Consequently, complainant produced currency notes of Rs.20,000/- which were in the denomination of Rs.2000X6 and Rs.500X16. Again demonstration of applying phenolphthalein powder and its effect, just like it was done on earlier occasion i.e. on 25.01.2020, was carried out by CBI Officials. Some documents were prepared by CBI Officials and signature of the witnesses were taken. He signed pre trap memo dated 28.01.2020 at point B, Ex.PW3/15 (colly).
CBI Case No.43/2020 Page 29 of 18715.13 That the trap team as constituted above went to the office of accused at Raja Garden, where complainant was instructed by CBI Officials to hand over bribe money when demanded by accused. The independent witnesses were asked to remain close to complainant and see the transactions between them. The witnesses were given instructions to give a signal by rubbing their faces as soon as bribe/trap money is handed over to accused persons. The DVR was put in 'Switch-On' mode with complainant in his pocket and he went inside the office of A-1. PW8 remained outside the said office. After sometime, complainant came out of the office alongwith another person. PW8 followed them to a tea stall in front of SDMC Office, Raja Garden, where there was a Sulabh Shauchalaya of SDMC. A-1 was also present there and all three of them were having some conversation. After 5-10 minutes A-1 left from there. Thereafter, complainant came to TLO and narrated the whole conversation. Before that, DVR was switched off.
15.14 That after waiting for sometime, complainant was again asked to go to the room of A-1, by carrying DVR in 'Switch-On' mode. A-1 was not found there and thereafter complainant came back to TLO and DVR was switched off. Complainant was asked to call A-1 but mobile phone of A-1 was found unreachable, despite 2-3 efforts made by complainant. Subsequently, A-1 was called by the complainant on different number, which was found busy and on one occasion A-1 did not pick the call. Thereafter, TLO called one of his CBI Case No.43/2020 Page 30 of 187 CBI vs. Kapil & Anr.
seniors and informed him about the proceedings. Thereafter, all of them went to CBI Office where SD card was taken out from DVR and sealed by CBI Officials.
15.15 PW8 identified his signature in the memo of proceedings dated 28.01.2020 Ex.PW3/28 (colly) bearing his signature at point A. 15.16 That an SD card was taken out from a packet Q-3 which was packed in yellowish colour envelope, in the Court, in his presence which he identified by way of his signature at point B. The yellowish colour envelope, brown colour envelope, paper packet, plastic cover and SD Card already Ex.PW3/16 (colly) were taken up. The SD card was played in the Court and it contained 11 audio files. He was able to identify voices of Nitin Kumar, Aditya Kumar Singh in file no. 200128_1150 and 200128_1152 whose transcripts are Ex.PW3/17 and Ex.PW3/18 respectively. He identified voices of complainant and A-2 in audio file no 200128_1156 whose transcript is Ex.PW3/19. He identified voice of A-1 and complainant in audio file no. 200128_1340 whose transcript is Ex.PW3/20. Rest of the audio files viz. 200128_1359, 200128_1529, 200128_1536, 200128_1537, 200128_1645, 200128_1646, 200128_1701- whose transcripts are Ex.PW3/21 to Ex.PW3/27 respectively contained no audio recordings.
CBI Case No.43/2020 Page 31 of 18715.17 PW8 identified his signature in memos dated 17.08.2020 and 19.08.2020 at point B which are Ex.PW3/29 (colly).
15.18 PW8 was able to identify both the accused persons in the Court, correctly.
16. PW9 Sh. Naveen Bhardwaj deposed in his testimony that in January, 2020 he was posted as Inspector, GST, Delhi South at Bhikaji Cama Place, New Delhi. On 25.01.2020, he had joined the proceedings in the present case and had appeared before CBI officials where he had met Sh. Dharmender Singh, Inspector CBI who was the TLO of the case. The said officer of CBI briefed him about the complaint of complainant in the presence of complainant and other independent witness namely Sh. Nitin. He deposed the facts regarding demonstration of use of phenolphthalein powder on cash amount of Rs.15,000/-, the fact that he had touched powder stained notes in Sodium Carbonate and water solution turning that solution into pink colour, necessary instructions given by CBI officials with regard to the use of said GC notes, arrangement of fresh SD card, recording of his introductory voice and his signature on the documents prepared by the CBI, in the same manner as deposed by PW8 Mr. Nitin Kumar in his testimony. Same are not repeated here for the sake of brevity.
16.1 PW8 identified his signature at point C on the handing over memo dated 25.01.2020 which is Ex.PW3/6. He deposed about CBI Case No.43/2020 Page 32 of 187 CBI vs. Kapil & Anr.
the facts regarding trap team visiting the office of A-1 and complainant going to the office of A-1 with DVR in Switched On Mode as deposed by PW8 Sh. Nitin Kumar in his testimony. Same is not repeated here for the sake of brevity. Besides that PW9 further deposed following facts.
16.2 That initially the complainant and PW Sh. Nitin Kumar went inside SDMC Building. After sometime, complainant and PW Sh. Nitin Kumar came out of the building and thereafter the DVR with the complainant switched off. Complainant informed that he could not meet A-1 as said accused was not present in his office, rather had gone to office of SI Rajender. Besides that PW9 further deposed following facts.
16.3 That complainant asked SI Rajender about his posting, complainant was told by SI Rajender to speak to A-1.
16.4 That thereafter on the instruction of the TLO, complainant made a call to A-1 and A-1 told the complainant to meet him in his office after some time.
16.5 That thereafter the trap team was again positioned and complainant went to the office of A-1 with PW Sh. Nitin Kumar and proceedings, as deposed by PW Sh. Nitin Kumar in his testimony, were carried out. Same are not repeated here for the sake of brevity.
CBI Case No.43/2020 Page 33 of 18716.6 That complainant had informed that another person who was present in the office of A-1 had told him that work would be done for Rs.20,000/- and not Rs.15,000/-. TLO then instructed the complainant to again meet A-1 after lunch. Thereafter, complainant went to the office of A-1 with DVR in 'Switch-On' mode and returned back. Subsequently, the DVR was switched off and copy of recordings of SD card was prepared. DVR was seized and sealed. Memorandum of proceedings were prepared which was signed by him.
16.7 That he identified his signature on the punchnama dated 25.01.2020 at point C which is Ex.PW-3/14. He identified his signature at point C on yellow colour envelope which is sealed with the seal of "AA".
16.8 That envelope contained a brown colour envelope having Micro SD Card. Same was taken out and said envelope was marked as Ex.PW3/12 (colly). The SD card was played in the Court. It contained the following audio files :-
(i) File No. 200125_1226 - PW9 identified the voice of the independent witness Sh. Nitin in the said audio file. Its transcript is Ex.PW3/8.
(ii) File No. 200125_1230 - PW9 identified his own voice in the said audio clip and its transcript is Ex.PW3/9.CBI Case No.43/2020 Page 34 of 187
(iii) File No. 200125_1358 - PW9 identified the voice of complainant in the said file, who was speaking the words "
Woh Toh Aap Hi Kaa Naam Le Rahe The" , and its transcript is Ex.PW3/10.
(iv) File No. 200125_1417 - PW9 identified the voice of the complainant who was speaking the words "Bauji Se Post Hi Toh Maang Raha Hoon" in the said audio file and its transcript is Ex.PW3/11.
(v) File No. 200125_1528 - PW9 identified the voice of complainant in the said audio file and its transcript is Ex.PW3/13.
16.9 After preparation of Memorandum of Proceedings and signing it he left the CBI office in the evening. Later on, Inspector Sumit from CBI had asked him to join the investigation for identifying the voice of the persons.
16.10 PW9 identified his signature at point C on the Voice Identification Memo dated 17.08.2020 forming part of Ex.PW3/29 (colly).
16.11 That he was not sure about the person who was with the A-1 in his room. He could not identify the accused persons in the Court.
17. PW10 Pradeep Kumar deposed his testimony that in the month of January 2020, he was posted as an Administrative Officer in CBI Case No.43/2020 Page 35 of 187 CBI vs. Kapil & Anr.
Department of DEMS, SDMC. He knew Sanitary Inspector Rajendar Sharma as SI Rajendar Sharma was in his Department. He also deposed that he was acquainted with A-1 who was working as Assistant Sanitary Inspector in his Department at the said relevant time. He was also acquainted with Rameshwar Dayal, Assistant Sanitary Inspector who was posted at Raja Garden at the said time filed in Ward No. 3S, SDMC. He was also acquainted with complainant as complainant was posted as Safai Karamchari in the said Ward.
17.1 As per PW10, temporary ad-hoc officials of SDMC were regularized by DEMS Headquarters and those officials were then sent to concerned zones. In this case, it was West Zone. Officials were then posted in wards within zone as per the vacancies which existed.
17.2 PW10 further deposed that order for joining of complainant in Ward No. 3S was issued by his office under his signature. He had submitted various official documents pertaining to posting/joining and other orders to Investigating Officer in this case through letters dated 06.08.2020 and 07.08.2020. He identified those letters as Ex.PW10/1 (colly), PW10/2 and PW10/3.
17.3 PW10 also identified order dated 27.12.2019 vide which complainant was allowed to join in Ward No.3S against vacant post as Ex.PW3/DX2. He identified A-1 in the Court.
CBI Case No.43/2020 Page 36 of 18718. PW11 Aditya Kumar Singh deposed in his testimony that in January 2020, he was posted as a Manager Scale-II in Syndicate Bank, (now Canara Bank) R.K. Puram, Delhi. Pursuant to the direction issued by his office on 28th January, 2020, he went to CBI office, ACB Branch and met one CBI official namely; Dharmendar Singh. That official told him about the complaint of complainant and introduced him with complainant and other witnesses/officials present in the office. Thereafter, demonstration proceedings with regard to use of DVR and SD Card, GC notes colored with chemical and fixing with DVR carrying SD Card, in terms of prosecution version were completed. Details of the same are not mentioned here for the sake of brevity.
18.1 PW11 further deposed about the visit of trap team to SDMC office, Raja Garden and proceedings which took place at the said office in terms of prosecution version. Same are not repeated here for the sake of brevity.
18.2 He identified his signature in pre-trap memo Ex.PW3/15 at point C, yellowish color envelope/brown color envelope etc. collectively referred as Ex.PW3/16 (colly) at point C. 18.3 He also identified the voice of independent witness Nitin Kumar in audio file No. 200128_1150, his own voice in audio file No. 200128_1152, voice of A-2 and complainant in audio file No. CBI Case No.43/2020 Page 37 of 187 CBI vs. Kapil & Anr.
200128_1156 and voice of complainant in audio no. 200128_1340. The audio records were compared with the transcripts which were Ex.PW3/17 to Ex.PW3/20 respectively. He also identified his signature at Point-C on panchnama proceedings, Ex.PW3/28.
19. PW12 Inspector Sumit Kumar deposed in his testimony that he was assigned present case for investigation in the year 2020 by SP Sh. Abhishek Dular. Prior to him, investigation was being carried out by Inspector Dharmender Kumar. During his tenure as IO, he collected documents from Inspector Dharmender Kumar vis Verification Memo, Pre-Trap Proceedings Memo, Voice Exhibits of accused persons and others alongwith FIR. He identified those documents which were on record and which were already exhibited as Ex.PW3/2, Ex.PW3/6, Ex.PW3/14, Ex.PW3/15 and Ex.PW3/28.
19.1 In his testimony PW12 has deposed that he had collected documents in the form of CAF, CDRs etc from the concerned Nodal Officers. He also had collected service records of accused persons and other persons and other relevant documents from MCD Office. He had also prepared transcripts of the records which he had collected during investigation. After collecting audio recordings he had sealed the same and had sent them for examination in CFSL. Thereafter, he received CFSL Report, which was positive.
CBI Case No.43/2020 Page 38 of 18719.2 PW12 identified his signature at point C on voice sample memos which were already exhibited in the testimony of PW6 viz., Ex.PW6/1, Ex.PW6/2, Ex.PW6/3 & Ex.PW6/4. He identified his signature at point C, point X and point Y on the Voice Identification- cum-Transcript Memo, already exhibited in the testimony of PW3 & PW5 viz., Ex.PW3/29 and Ex.PW5/1.
19.3 PW12 also identified his signature at point A in Voice Identification-cum-Transcript Memo Ex.PW12/2(Colly.). He identified signature of Sh. Abhishek Dular at Point A in FIR Ex.PW12/1(colly) on Page No. 14 & 15.
19.4 PW12 also identified documents viz., letter dated 06.08.2020 (D-17) already exhibited as Ex.PW10/1 (colly), letter dated 06.08.2020 (D-18) already exhibited as Ex.PW10/12 (colly), Handing Taking Over Memo dated 05.08.2020 already Ex.PW2/1, documents Ex.PW2/2 to Ex.PW2/11, documents Ex.PW1/2 to Ex.PW1/9. He also identified letter dated 06.10.2020 Ex.PW12/3 (colly). He identified envelopes alongwith DVR collected during investigation, bearing his signature at point B as Ex.PW12/4 (colly). He identified envelope, containing SD Card which had specimen voice of ASI Rameshwar Dayal and independent witness Rajan Kumar, already exhibited as Ex.PW6/9 (colly).
CBI Case No.43/2020 Page 39 of 18719.5 PW12 identified documents which were exhibited in the testimonies of PW1, PW2 and PW6. Same are not repeated here for the sake of brevity.
19.6 PW12 further deposed in his testimony that he had obtained sanction for prosecution of accused persons from competent authority.
20. PW13 - Amitosh Kumar was the Senior Scientific Officer, CFSL, who disclosed his educational qualifications in his testimony. He deposed that he had more than 25 years of regular service and had given opinion in about 900 cases, which included voice identification cases. He had also given assistance in examination of 700 cases consisting of 600 cases relating to voice identification.
20.1 PW13 further deposed that in this case, his office had received letter dated 06.10.2020, Ex.PW12/3 (colly) from CBI along with 09 sealed parcels, specimen seal impression and copy of transcription, on 09.10.2020. Subsequently, case was given to him for examination.
20.2 PW13 identified the sealed parcels, in the Court. He identified his Report as Ex.PW13/1 (colly), which he had prepared after examining said sealed parcels, which contained SD Cards and CBI Case No.43/2020 Page 40 of 187 CBI vs. Kapil & Anr.
DVRs. He identified the said envelopes containing SD Cards and DVRs which were already exhibited in the testimonies of PW3, PW6 & PW12, after identifying his signature at point Y. Details of the same are not repeated here, as it would be mere repetition.
21. PW14 - Vikrant Tomar, Sub-Inspector, ACB, CBI, deposed in his testimony that he was assigned the task to verify the complaint of complainant by SP Abhishek Dular on 24.01.2020. He deposed about the verification proceedings, in terms of prosecution case, which are not repeated here for the sake of brevity. He identified Verification Memo dated 24.01.2020 Ex.PW3/2, bearing his signature at point C. He identified the envelopes containing SD Card already exhibited as Ex.PW3/5 (colly).
21.1 PW14 further deposed that after verification proceedings, FIR in question was registered and trap planning for 25.01.2020 was done in the office of CBI. Thereafter, he deposed about the trap proceedings which took place on 25.01.2020, in sync with prosecution version, which needs no repetition. He identified his signature at point D in handing over memo dated 25.01.2020, already exhibited as Ex.PW3/6. He identified his signature at point D on each page Punchnama-cum-Proceedings dated 25.01.2020 (already exhibited as Ex.PW3/14).
CBI Case No.43/2020 Page 41 of 18721.2 PW14, thereafter, deposed facts regarding trap proceedings which took place on 28.01.2020, in sync with prosecution version. Same needs no repetition. He identified pre-trap memos dated 28.01.2020, bearing his signature at point D. Same were already exhibited as Ex.PW3/15 (colly) and Ex.PW3/28 (colly).
21.3 PW14, in his testimony, identified the verification proceedings (already exhibited as Ex.PW3/3), envelopes along with SD card (already exhibited as Ex.PW3/5 & Ex.PW3/12).
22. PW15 - Inspector Dharmender Kumar was another IO in this case, who deposed about the proceedings which had taken place on 25.01.2020, when case was marked to him for investigation by concerned SP, CBI. Details of said proceedings are not repeated here for the sake of brevity. Suffice it is, to mention here that he supported prosecution version, in his deposition regarding the manner in which proceedings had taken place on 25.01.2020. He identified documents viz., Ex.PW3/6 (colly) and Ex.PW3/14 (colly). He also disclosed about the chain of events which had taken place on 27.01.2020 and 28.01.2020, in sync with prosecution version, already mentioned above in testimonies of previous witnesses. Same needs no repetition. He identified memos dated 28.01.2020, bearing his signature at point F [already exhibited as Ex.PW3/15 and Ex.PW3/28). He identified envelopes containing brown envelope and CBI Case No.43/2020 Page 42 of 187 CBI vs. Kapil & Anr.
DVR (already exhibited as Ex.PW3/30 (colly), Ex.PW3/16 (colly) and Ex.PW1/12 (colly)].
23. After examining said witnesses, prosecution closed its evidence and matter was fixed for recording of Statement of Accused Persons.
STATEMENT OF ACCUSED PERSONS UNDER SECTION 313 CRPC
24. In his Statement under Section 313 Code of Criminal Procedure (in short 'CrPC'), A-1 denied the incriminating evidence, put to him. He admitted that he and Ranbir Singh were working in same MCD Ward and had communicated for official purposes. He was not clear about the correctness of CDR, placed on file by CBI, pertaining to his mobile number. He also claimed about his lack of knowledge with regard to some incriminating evidence, put to him. He claimed that there were financial transactions between SI Rajender Sharma and complainant. He claimed that his conversation with complainant were misinterpreted and original complaint of complainant was destroyed. As per him, he tried to mediate the dispute between complainant and SI Rajender Sharma. He claimed that recordings were edited and misinterpreted. He claimed that witnesses of prosecution had deposed falsely and important CBI Case No.43/2020 Page 43 of 187 CBI vs. Kapil & Anr.
documents were destroyed/ removed from the case file. As per him, case of prosecution was false.
25. In his Statement under Section 313 CrPC, A-2 denied the prosecution version. He also told about his lack of knowledge with regard to certain incriminating evidence, put to him. He claimed that he was innocent and that he was falsely implicated in this case.
26. After recording of Statements of Accused persons, matter was fixed for defence evidence as accused persons wanted to lead defence evidence.
DEFENCE EVIDENCE
27. In their defence, accused persons examined two witnesses viz., DW1 - Pooran Singh and DW2 - Virender Singh.
28. DW1 - Pooran Singh, in his testimony, produced summoned record viz., attendance register of SDMC from 16.10.2019 till 16.01.2020. The relevant copy of pages, showing attendance of complainant, were exhibited as Ex.DW1/1 (colly) and Ex.DW1/2 (colly).
29. DW2 - Virender Singh was an ASO, DEMS, West Zone, MCD, who had produced summoned record, which was CBI Case No.43/2020 Page 44 of 187 CBI vs. Kapil & Anr.
attendance register of Rameshwar Dayal for the period 07.10.2020 to 10.10.2020. The said record was exhibited as Ex.DW2/1.
30. After examining said witnesses, accused persons closed their evidence and matter was fixed for final arguments.
31. After hearing final arguments, matter was fixed for judgment.
LAW RELATING TO APPRECIATION OF ORAL EVIDENCE
32. Now, the question which needs adjudication, is whether prosecution was able to prove the charges against accused persons or not?
33. For answering above mentioned question, I have to appreciate evidence brought on record by prosecution.
34. Before appreciating the evidence, brought on record by the prosecution, I must mention here the law of appreciating evidence of the witnesses. Hon'ble Delhi High Court in case titled as Satish Bombaiya Vs. State, 1991 JCC 6147, had observed:
"While appreciating the evidence of a witness, approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed then undoubtedly it is necessary for the court to scrutinize the evidence more particularly CBI Case No.43/2020 Page 45 of 187 CBI vs. Kapil & Anr.
keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether earlier evaluation of evidence is shaken as to render it unworthy of behalf. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here and there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of the evidence as a whole. The main thing to be seen is, whether those inconsistencies go to the root of the matter or pertained to the insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of the inconsistencies in the evidence. In the latter, however no such benefit may be available to it. That is a salutary method of appreciation of evidence in criminal cases."
35. So, in the wake of above mentioned law, evidence brought on record, has to be read as a whole and has to be appreciated as a whole. Minor discrepancies over trivial matters and hyper technical approach while appreciating evidence, has to be avoided. It has to be seen whether shortcomings highlighted by accused, go to the root of the matter and if it so goes, then in that eventuality only evidence has to be discarded.
36. Further, present case involves the issue of corrupt practices allegedly done by accused persons. Now, how evidence in such like matters, has to be appreciated, is a relevant consideration.
CBI Case No.43/2020 Page 46 of 187Law pertaining to appreciation of evidence in cases, involving corrupt practices.
(i). In the case of Sultan Salahuddin Owasi vs. Mohd. Osman Shaheed & Ors. (1980) 3 SCC 281, the Apex Court observed as under:-
It is now well settled by a large catena of the authorities of this Court that a charge of corrupt practice must be proved to the hilt, the standard of proof of such allegation is the same as a charge of fraud in a criminal case.
(ii). In the case of Ram Sharan Yadav vs. Thakur Muneshwar Nath Singh & Ors. (1984) 4 SCC 649, the Hon'ble Apex Court observed as under :-
The sum and substance of these decisions is that a charge of corrupt practice has to be proved by convincing evidence and not merely by preponderance of probabilities. As the charge of a corrupt practice is in the nature of criminal charge, it is for the party who sets up the plea of 'undue influence' to prove it to the hilt beyond reasonable doubt and the manner of proof should be the same as for an offence in a criminal case......... By and large, the Court in such cases while appreciating or analysing the evidence must be guided by the following considerations:
(1) the nature, character, respectability and credibility of the evidence, (2) the surrounding circumstances and the improbabilities appearing in the case, (3) the slowness of the appellate court to disturb a finding of fact arrived at by the trial court who had the initial CBI Case No.43/2020 Page 47 of 187 CBI vs. Kapil & Anr.
advantage of observing the behaviour, character and demeanor of the witnesses appearing before it, and (4) the totality of the effect of the entire evidence which leaves a lasting impression regarding the corrupt practices alleged.
This, therefore, conclude the question regarding the standard of proof.
37. So, in the wake of above mentioned law, it is clear that I have to appreciate the evidence, brought on record by the parties, in detail, before concluding as to whether prosecution was able to prove the charges, levelled against accused persons. The credibility of the witnesses, the circumstances in which demand of bribe was raised by accused persons, as was the prosecution story and the demeanor of the witnesses, together with totality of impact of evidence, are considerations, which I will be bearing in mind, while appreciating evidence on record.
RECAPITULATION OF PROSECUTION CASE
38. As such, prosecution has brought on record evidence, in the form of oral testimonies, audio recordings, CDR / CAF record and CFSL Report. Each type of such evidence, will be appreciated by me, separately, in subsequent paragraphs.
CBI Case No.43/2020 Page 48 of 18739. At this stage, before delving into evidence, I must recapitulate, prosecution version, in brief. It will assist the person reading this judgment, in better understanding the case. For the sake of convenience, I am referring the prosecution version, in tabular form.
DATE CHAIN OF EVENTS 24.01.2020 Verification Proceedings - Complainant filed complaint with CBI alleging that accused no.1 and Sanitary Inspector Rajender Sharma were demanding bribe of Rs.20,000/- from him, in lieu of giving him posting. Based on said complaint, verification proceedings were conducted in which fresh DVR along with SDHC Card was put with complainant by CBI. Complainant along with his friend namely Virender Singh, SI Vinod, SI Vikrant and independent witness Nitin Kumar went to the office of accused no.1 where conversation of complainant with accused no.1 was recorded. Thereafter complainant along with other witnesses returned back to CBI office, where DVR/ SDHC card were sealed after listening the conversation. Based on said conversation, FIR in question was registered. Verification memo was prepared which was signed by all the above mentioned witnesses.
CBI Case No.43/2020 Page 49 of 18725.01.2020 Investigation after registration of FIR - After registration of FIR, case was marked to Inspector Dharmender Kumar Singh, who prepared Trap Team, comprising of complainant, independent witnesses namely Nitin Kumar and Naveen Bhardwaj along with CBI officials. Pre-trap proceedings were conducted on 25.01.2020 in which complainant, who had brought Rs.15,000/- GC Notes, was given demonstration of those notes stained with phenolphthalein powder and subsequently, being treated with sodium carbonate solution, indicating colourless liquid turning into pink colour. The tainted bribe amount was then put in the pant pocket of complainant after removing all belongings of complainant. Necessary directions were given to complainant, to handover the said tainted money, when demanded by accused persons. Fresh DVR containing SD card was put with complainant, in 'switch on' mode and he was asked to meet accused persons at the concerned office. Independent witnesses were asked to remain in close proximity to complainant. CBI officers remained present at close distance to the office of accused persons. Proceedings were recorded in the SD card of DVR, which was sealed by CBI officers, after complainant returned back to them. Necessary paper work/documentation / preparation of memos, was carried out by CBI.
CBI Case No.43/2020 Page 50 of 18727.01.2020 Complainant received a call from A-2, whereby he was asked to meet A-1 on 28.01.2020. Further investigation was given to SI Sumit Kumar 28.01.2020 Complainant brought GC Notes of Rs.20,000/-, on the directions of CBI. Pre-trap proceedings were conducted in the same manner as they were conducted on 25.01.2020, in the presence of independent witnesses namely Nitin Kumar and Aditya Kumar. The team again went to the office of accused persons, where all the conversation of complainant and accused persons were recorded. Proceedings were recorded in the SD card of DVR, which was sealed by CBI officers, after complainant returned back to them. Necessary paper work / documentation / preparation of memos, was carried out by CBI.
Other proceedings - Investigating Officer of CBI recorded statements of witnesses, secured the seals, used during investigation, sent the audio recordings to FSL, prepared transcripts of audio recordings, obtained CFSL Report and after completing investigation, charge-sheeted accused persons.
CBI Case No.43/2020 Page 51 of 18740. Keeping in mind, above mentioned broadly stated proceedings and the details, mentioned in preceding paragraphs, I am proceeding further and appreciating evidence brought on record by prosecution.
APPRECIATION OF PROSECUTION EVIDENCE ORAL TESTIMONIES OF WITNESSES PW1
41. PW1 - Rajiv Vashisht was the Nodal Officer, from Bharti Airtel Ltd., who testified in his testimony that his company had received letter from CBI, thereby seeking CAF and CDR, with respect to mobile numbers - 9312109329 & 9212604605, belonging to complainant and A-1 respectively. He identified the letter, received by his company from CBI in this regard as Ex.PW1/1. He identified the CAF & CDR of above mentioned mobile numbers as Ex.PW1/2 to Ex.PW1/5, bearing his signature and seal at point A & B respectively, for the period from 22.01.2020 to 25.01.2020. He also identified Certificate under Section 65-B IEA, bearing his signature and seal at point A & B respectively, with respect to above mentioned CDR & CAF. Similarly, he identified CDR & CAF record of above mentioned mobile numbers for the period from 25.01.2020 to 03.02.2020 as Ex.PW1/7 & Ex.PW1/8 bearing his signature and seal at point A & B CBI Case No.43/2020 Page 52 of 187 CBI vs. Kapil & Anr.
respectively. He identified Certificate under Section 65-B IEA with respect to said electronic documents as Ex.PW1/9 bearing his signature & seal at point A & B respectively. He deposed that he had furnished said record after being asked by CBI on 19.02.2020.
41.1 PW1, as such, was an employee of Bharti Airtel Ltd. He had supplied above mentioned documents to CBI in ordinary course of his official duties. He duly identified the documents, being signed and sealed by him, which he supplied to CBI. In fact, he testified in his cross-examination that he had taken 15 days time period for arranging said documents. He refuted the suggestion of deposing falsely. He did not remember the date when his statement was recorded by CBI or whether he had taken any receiving from CBI while handing over above mentioned documents or the number of times, he had visited the office of CBI, in relation to this case. Want of knowledge regarding said facts was not material and relevant, for the purpose of discarding his testimony. The documents, he had placed on record, were so placed by him, in ordinary course of his official duties. There was nothing unreasonable about the manner in which he had furnished documents, to CBI, during investigation, on the asking of CBI.
41.2 No fact was culled out by accused persons by cross- examining him, which could have remotely indicated that he was a tutored witness or a witness with ulterior motive, who had deposed in CBI Case No.43/2020 Page 53 of 187 CBI vs. Kapil & Anr.
favour of prosecution. He was an employee of Bharti Airtel Ltd. and that fact was not denied by accused persons. His signatures on the documents, he had furnished to CBI, were also not challenged by accused persons. As such, there was nothing, based on which, veracity of his testimony, could be doubted. Therefore, I believed his testimony to be trustworthy.
PW2
42. PW2 - Saurabh Aggarwal, was Nodal Officer in Vodafone Idea Ltd., who testified that he had supplied CAF & CDR of mobile numbers - 8527598608 & 9654397973, belonging to Ms. Sapna, wife of A-1 and Rajender Sharma, respectively. He identified that record as Ex.PW2/2, Ex.PW2/3, Ex.PW2/5 & Ex.PW2/6. He identified Certificate under Section 65-B with respect to said records, as Ex.PW2/4 & Ex.PW2/7 respectively. Besides that he identified CDR of mobile number - 8527598608 for the period from 25.01.2020 to 03.02.2020, as Ex.PW2/8, regarding which he had issued Certificate under Section 65-B IEA, which he had identified as Ex.PW2/9. Similarly, he identified CDR of mobile number - 9654397973 for the period from 25.01.2020 to 03.02.2020, as Ex.PW2/11, regarding which he had issued Certificate under Section 65-B IEA, which he had identified as Ex.PW2/12. He identified his signatures on the said documents at point A & seal at point B. CBI Case No.43/2020 Page 54 of 187 CBI vs. Kapil & Anr.
42.1 PW2, just like PW1 was an employee of cellular company. He had supplied above mentioned documents to CBI in ordinary course of his official duties. He duly identified the documents, being signed and sealed by him, which he supplied to CBI. He refuted the suggestion of deposing falsely. The documents, he had placed on record, were so placed by him, in ordinary course of his official duties. There was nothing unreasonable about the manner in which he had furnished documents, to CBI, during investigation, on the asking of CBI.
42.2 No fact was culled out by accused persons by cross- examining him, which could have remotely indicated that he was a tutored witness or a witness with ulterior motive, who had deposed in favour of prosecution. He was an employee of Vodafone Idea Ltd. and that fact was not denied by accused persons. His signatures on the documents, he had furnished to CBI, were also not challenged by accused persons. As such, there was nothing, based on which, veracity of his testimony, could be doubted. Therefore, I believed his testimony to be trustworthy.
PW3
43. PW3 - Ranveer Singh was the complainant in this case. His evidence needs to be appreciated, by keeping in mind various aspects viz., whether he had false motive to implicate accused CBI Case No.43/2020 Page 55 of 187 CBI vs. Kapil & Anr.
persons, what were his antecedents, whether he was a tutored witness and whether he was under any influence to depose in favour of prosecution. I have noted said aspects, keeping in mind the mandate of law, laid down in judgments viz., Sat Paul vs. Delhi Administration [AIR 1976 SC 294] and Ravindra Mahadeo Kothamkar vs. The State of Maharashthra [908-Appeal-1152-2004- J.doc dated 19.12.2015].
43.1 So, allegations of complainant, in the wake of above mentioned case laws are not to be seen in isolation. Antecedents of complainant and possibility of complainant having false motive to implicate accused persons, are considerations, which are to be appreciated also.
43.2 Keeping in mind above mentioned understanding of law, pertaining to appreciation of evidence of complainant, in trap cases, I am reverting back to the evidence of complainant, who was examined as PW3, by prosecution.
43.3 PW3 categorically identified the complaint, he had made to CBI as Ex.PW3/1, based on which verification proceedings were carried out and later on, became the basis of registration of FIR in question. He deposed that A-1 had demanded money as illegal gratification in lieu of getting posting after he became permanent employee in the department. He also deposed that A-2 had talked to him at the instance of A-1.
CBI Case No.43/2020 Page 56 of 18743.4 PW3, besides, levelling above mentioned allegations, deposed facts regarding verification proceedings, pre-trap proceedings, trap proceedings and post-trap proceedings, in sync with prosecution version, which needs no repetition. He identified documents which were prepared during investigation, in his presence, viz., verification memo Ex.PW3/2, handing over memo Ex.PW3/6, punchnama proceedings dated 25.01.2020 Ex.PW3/14, pre-trap memo Ex.PW3/15, punchnama proceedings dated 28.01.2020 Ex.PW3/28 and voice identification - cum- transcription memos Ex.PW3/29, all bearing his signature at point A. 43.5 Besides that, he identified the voices of witnesses, recorded in SD card in DVRs, used during investigation. Those audio files and their transcripts are appreciated by me, separately, in this judgment, under the heading of "Evidence based on Audio Recordings". Therefore, they are not appreciated at this stage.
43.6 Further, from the testimony of PW3, I find that facts viz., he being a Safai Karamchari, who had studied upto 9 th class and the fact that he was made permanent employee by the department after 22 years of service, were not disputed by accused persons. His acquaintance with accused persons professionally, was also not disputed by accused persons. Further, accused persons failed to cull out any relevant fact, which could have indicated that he had deposed against accused persons with false motive.
CBI Case No.43/2020 Page 57 of 18743.7 PW3 was cross-examined separately by A-1 & A-2. I am firstly appreciating the facts deposed by PW3, in response to his cross-examination by A-1 in my subsequent paragraphs.
43.8 PW3 explained in his cross-examination, that after getting permanent status for getting posting, in the same Ward, he had met A-1 who told him that it would take Rs.20,000/- for meeting out his request. Infact, he explained that A-1 had come to him and had told him about the same by stating, "aapko post dene ke liye, 20000 rupay lagenge". He also deposed that A-1 had also stated, "aapke 20000 rupay hi lagenge, Inspector sahab maan nahi rahe". No suggestion was given to the contrary by accused persons, disputing the said facts. It did not help the cause of accused persons.
43.9 PW3 also deposed in his cross-examination that 3-4 employees were given postings in the same Ward, who had become permanent employees. So, PW3 had reason to believe that he can also get posting in the same Ward. That hope was basically exploited by A-1, when A-1 demanded bribe of Rs.20,000/-, though alleging that it was so demanded by Sanitary Inspector concerned. Fact of the matter remains that PW3 stuck to his version regarding A-1 demanding bribe of Rs.20,000/-.
43.10 PW3, in his testimony deposed facts regarding the manner in which CBI had investigated this matter. Those facts are not repeated here for the sake of brevity. Suffice it is, to mention that CBI Case No.43/2020 Page 58 of 187 CBI vs. Kapil & Anr.
PW3 deposed facts regarding verification & trap proceedings, in sync with the version of CBI, mentioned in the charge-sheet. He was able to name independent witnesses who had accompanied him at the time of trap proceedings. He was able to depose facts regarding arrangement of cash amount, fixing of fresh DVR having SD card and preparation of documents by CBI which supported prosecution version.
43.11 PW3 categorically deposed that he had met A-1 for meeting out his request of getting posting in the same Ward. He deposed that he had gone to CBI office with his friend Virender Singh after discussing the matter with Virender Singh. He admitted the suggestion, given by A-1, to the effect that trap proceedings were conducted against accused persons after he had lodged complaint with CBI regarding demand of bribe money. All the said facts, supported prosecution version.
43.12 PW3 was put certain suggestions, which he refuted. Those suggestions, on one hand, indicated the defence of accused persons and on the other hand, indicated that they were not acceptable to PW3. A reference to those suggestions, would be relevant, at this stage. I am mentioning those suggestions and the response of PW3, in verbatim, along with its appreciation by me, in tabular form.
CBI Case No.43/2020 Page 59 of 187Suggestions/ Response of PW3 Appreciation (a). It is incorrect that CBI While appreciating said suggestion,
had directed me not to use the one has to bear in mind the fact that words, "rishwat" and "ghoose" PW3 has studied upto 9th class, as per or any other word that referred his testimony. Further, one has to to giving bribe, while the appreciate the fact that he had recorder was on. association with A-1 for more than two decades as they were both working in the same Ward. So, non-
reference to the words, 'rishwat' / 'ghoose'/ likewise, as such, did not make the testimony of PW3 doubtful as his educational background was not such that he would have taken adequate precaution by using said words. Coupled with the same, even if it is believed that he was casual in his conversation, then also, his acquaintance with A-1 for a long period of time, justified said casual approach. The said suggestion indicated that A-1 expected that expressions like 'rishwat' or 'ghoose' or likewise should have been used, in the conversation by PW3. As such, said expectation was a narrow way of understanding the issue in hand. In common parlance, people use such words, which ordinarily imply bribe.
People, seldom use words like CBI Case No.43/2020 Page 60 of 187 CBI vs. Kapil & Anr.
"rishwat" and "ghoose" during communication with others. Use of such direct expressions, often is not done as any reasonable prudent person, placed in the situation of accused persons, would make efforts to not get involved in cases of corruption, by using such words, pertaining to bribe, directly. Even otherwise, PW3 refuted the said suggestion which indicated that he was not tutored by CBI. Lastly, reference to Rs.15,000/- and Rs.20,000/- in the conversation with accused persons, alleged by complainant in his testimony, only indicated the possibility of said amounts being bribe amount. There is no other possible context in which said amounts can be understood.
(b). It is wrong to suggest This suggestion indicated that A-1 that I went straightway to meet was claiming that he had not met SI Rajender Sharma to provide PW3 for the purpose of providing me posting after I got posting to PW3. The suggestion was permanent and not to accused refuted by PW3 which means that Kapil. PW3 did not accept the same. Even otherwise, A-1 failed to explain as to how and why he made conversation with PW3, as recorded in SD cards, if he was not in the picture altogether.CBI Case No.43/2020 Page 61 of 187
(c). It is incorrect to suggest These suggestions viz., (c), (d), (e), that I had taken a loan from (f) & (g), indicated that A-1 wanted Rajender Sharma and he to raise his probable defence, to the demanded to pay back the loan effect that he had taken a loan from before he signed my posting SI Rajender Sharma to the tune of order. Rs.15,000/-, which he had to return back along with interest amount of
(d). It is wrong to suggest that Rs.5,000/-. It also indicated that A-1 I had taken a loan from was claiming that PW3 had made Rajender Sharma for an amount various requests to SI Rajender of Rs.15,000/- and since, I had Sharma, for waiving off the interest not repaid for a long time, amount.
Rajender Sharma was asking for an interest of Rs.5,000/- on the PW3 by refusing those suggestions, said amount. as such, dismissed the said probable defence of A-1. Apart from that, A-1,
(e). It is wrong to suggest that nowhere explained in his defence I went to SI Rajender Sharma and/ or while cross-examining any of repeatedly with a request to the prosecution witnesses, as to how waive off the interest amount he came to know about the fact that and take only the principal SI Rajender Sharma had granted loan amount of Rs.15,000/-. amount of Rs.15,000/- to PW3.
(f). It is further wrong to Further, A-1 did not give details of suggest that since Rajender date, time and place when said loan Sharma did not agree to waive was allegedly given to PW3. The off the interest amount, I necessary terms and conditions of repeatedly went to Kapil to get said loan amount were also never the interest amount waived off disclosed by A-1. Further, purpose by speaking to Rajender for which PW3 had allegedly taken Sharma. said loan, also never saw light of the day, during whole trial. Lastly, I CBI Case No.43/2020 Page 62 of 187 CBI vs. Kapil & Anr.
(g). It is wrong to suggest failed to understand as to why PW3 that Sh. Rajender Sharma issued would have approached A-1 for the aforesaid order dated waiving off the interest amount as 04.02.2020 of my posting as I there is nothing on record, which had repaid the loan amount to could have indicated that SI Rajender him. Sharma would or could have acceded to the request of A-1 at the instance of PW3.
The net result is that whole theory of advancement of loan by SI Rajender Sharma to PW3 was not only refuted by PW3, rather, it was vague in nature.
(h). It is wrong to suggest These suggestions viz., (h), (i), (j) & that my friend Virender Singh is (k) indicated that A-1 was claiming a black mailer and an informer that friend of PW3 namely Virender with CBI and has high Singh was a black mailer and an connections in CBI. informer of CBI, having high connections with CBI also. The
(i). It is wrong to suggest suggestions also indicated that A-1 that Virender Singh gave you the wanted to convey that conversation idea to record the conversation between complainant and A-1 were with the accused persons about misused as it was the idea of the conversation pertaining to Virender Singh. Further, A-1 wanted the repayment of principal and to indicate that Virender Singh had waiver of interest amount, and arranged and managed entire CBI thereafter to mis-use the same proceedings in this case. Lastly, it by filing a false complaint indicated that as per A-1, PW3 along before the CBI officials.
with Virender Singh had conspired
together by misusing the
CBI Case No.43/2020 Page 63 of 187
CBI vs. Kapil & Anr.
(j). It is wrong to suggest conversations regarding repayment
that I did not got to CBI office of loan and waiver of interest on 25.01.2020 & 28.01.2020 amount.
also, or that Sh. Virender Singh The said suggestions were refuted by arranged and managed the PW3, which indicated that PW3 did entire CBI proceedings near not accept the theory, floated by A-1. MCD office at Rajouri Garden Coupled with the same, I find that itself. A-1 failed to explain as to how, he
(k). It is wrong to suggest came to know about the influential that I and Virender Singh had status of Virender Singh. A-1 failed conspired to blackmail the to explain as to why CBI would have accused persons and Sh. moulded itself, to such an extent, at Rajender Sharma by mis-using the instance of Virender Singh that it the conversations regarding the wasted its precious time in repayment of loan and interest implicating accused persons in this and falsely implicated them in case by forging the record. In other the present case. words, I failed to understand as to what Virender Singh or CBI, would have gained, by implicating accused persons in this case. Lastly, I failed to understand as to how A-1 had come to know about the said conspiracy between Virender Singh and CBI.
Details of said conspiracy again were never suggested by A-1.
Absence of answers to said relevant
and probable questions, made the
said suggestions vague and
improbable.
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CBI vs. Kapil & Anr.
(l). It is wrong to suggest The said suggestion indicated that
that CBI had deliberately A-1 wanted this Court to believe that deleted some of the recorded CBI had intentionally deleted some conversations in the present portions of recorded conversations, case because the actual in present case for hiding actual transaction pertaining to transaction based on principal loan principal amount and interest amount and interest amount. waiver were spoken by me in Refusal of said suggestion by PW3 those recordings. indicated that he did not buy said story. Even otherwise, said suggestion, lost its significance once I have already concluded that theory of advancement of loan to PW3 by SI Rajender Sharma, was vague in nature. Coupled with the same, A-1 failed to specify, as to which portions were deliberately deleted in the recorded conversations, which could have given wings to his theory.
43.13 A reference to above mentioned suggestions and conclusions drawn on the basis of appreciation of the same, therefore, indicates that said probable defence of A-1 was not trustworthy and reliable. Further, A-1 did not lead any defence evidence, in support of said suggestions, which made those suggestions, merit less.
43.14 Testimony of PW3, further indicated that he deposed facts regarding A-1 demanding bribe amount and A-2 asking him to CBI Case No.43/2020 Page 65 of 187 CBI vs. Kapil & Anr.
pay the said amount, in the presence of ASI Rameshwar. Said deposition was in sync with prosecution version. PW3 confirmed in his deposition that he had received telephonic call from A-2 on 27.01.2020 for bringing Rs.20,000/- on the next day in the office. He was able to disclose the fact that in all proceedings which CBI conducted, in this case, independent witnesses were present. He refuted the suggestion that he had not visited the room of A-1 or that he had recorded conversation with A-1 from outside the room of A-1. Surprisingly, he was questioned by A-1 in following manner :-
Q. Is it correct that you went to CBI with your complaint because you felt extremely angry on the demand of bribe even after rendering service in the department for about 22 years?
43.15 Above question indicated that A-1 himself admitted the fact that demand of bribe was made to PW3. This fact totally demolished the version of A-1 regarding PW3 getting loan from SI Rajender Sharma. Coupled with the same, I find that PW3. while answering said question, stuck to his version, to the effect that he had made request to A-1, twice or thrice for joining in permanent position but A-1 continued to demand bribe from him. That deposition, reinforced the version of PW3 which did not help the cause of A-1.
43.16 PW3 admitted the suggestion, in his testimony, that he had asked A-1 to call Rajender Sharma, for discussion about his CBI Case No.43/2020 Page 66 of 187 CBI vs. Kapil & Anr.
joining and other matters. He further deposed that he wanted A-1 to speak to Rajender Sharma regarding bargaining the money from Rs.20,000/- to Rs.15,000/- for his joining. He admitted the suggestion that when he had uttered the words, "na kutch somvar ko de dunga", he was asking A-1 to take the money from his pocket at that time and that he would pay the balance amount, demanded by SI Rajender Sharma from him on Monday.
43.17 To make things worse, for himself, A-1 asked PW3 categorically while referring to his examination-in-chief recorded on 21.10.2022, that there was no reference to the word, "graft" in the entire conversation which had taken place on 24.01.2020. PW3 explained in his answer that the import and purport of the said conversation means the same. It indicated that PW3 understood that bribe was demanded by A-1 on 24.01.2020. This conclusion did not help the cause of A-1.
43.18 PW3 was put suggestion based on theory of him receiving loan from SI Rajender Sharma. PW3 refuted the same. Once, that was done, A-1 should have examined SI Rajender Sharma in his defence, for probablising his defence. A-1 did not do so. In such circumstances, non-examination of SI Rajender Sharma by A-1 did not help his cause.
43.19 PW3 was given suggestion to the effect that his permanent category posting order had to come from higher authority CBI Case No.43/2020 Page 67 of 187 CBI vs. Kapil & Anr.
of MCD and Rajender Sharma or A-1 or A-2 could not have stopped the implementation of that order. That fact was admitted by PW3. Admission of said fact did not make the case of prosecution weak. Reason being, that if that was the situation, then A-1 would have known that he had no authority to give permanent category posting order to PW3 and therefore, he should have kept himself at distance, from PW3, whenever PW3 approached him for getting posting in the said Ward. A-1 did not do so for reasons best known to him. He continued to give assurance to PW3, subject to receiving of Rs.20,000/-. The continuance of insistence by A-1 for money from PW3 and his detailed conversation with PW3, only indicated that PW3 had full faith and belief that he can get posting only with the assistance of A-1. That very impression of PW3 can be clearly deduced in the given facts & circumstances of this case.
43.20 While cross-examining PW3, three office letters viz., Ex.PW3/DX-1, Ex.PW3/DX-2 and Ex.PW3/DX-3, were put to him. PW3 admitted the contents of those letters. Ex.PW3/DX-1 was an office order, issued by Assistant Commissioner, MCD, whereby complainant was promoted from temporary category to permanent category. Copy of the said office order was marked to SI Rajender Sharma, West Zone. Document Ex.PW3/DX-2 again was an office order which noted that complainant was regularized as Regular Swatchta Karamchari. Document Ex.PW3/DX-3 was a letter, written by complainant to SI Rajender Sharma, whereby complainant had CBI Case No.43/2020 Page 68 of 187 CBI vs. Kapil & Anr.
requested that he may be permitted to join duty. That letter was undated and it noted receiving, given by the concerned department and signed by SI Rajender Sharma, at point A. 43.21 Reference to above mentioned office orders and letter was inconsequential. Reason being, that A-1 after putting those documents to PW3, did not give any suggestion regarding the purpose of putting those documents to PW3, specifically. Based on arguments, put forth by Ld. Counsel for A-1, I find that those documents were put to PW3, for showing that as such, in the wake of said documents, A-1 could not have helped PW3 in getting posting in the same ward. If that was the case, then A-1 should not have talked to PW3, to the extent, he did in this case. The context of conversation, if said version of A-1 is to be believed, would have been different. Surprisingly, in whole conversation with PW3, A-1 nowhere said that in the wake of above mentioned documents, he had no role to play, with regard to the posting of PW3.
43.22 This brings me to the letter Ex.PW3/DX-3, put by A-1 to PW3. That letter was written by PW3, as admitted by him. In the said letter, PW3 had written that pursuant to office order dated 27.12.2019, he had become regular employee and he wanted to join in the West Zone, Ward No.3S. So, he prayed that he may be allowed to join in the said Ward. That letter was undated and it noted signature of SI Rajender Sharma at point A. SI Rajender Sharma had signed the same and had put date of 04.02.2020. Considering the circumstances of this CBI Case No.43/2020 Page 69 of 187 CBI vs. Kapil & Anr.
case, I find that said letter was written by PW3, after 28.01.2020. In other words, said letter lost its significance, as it was written and received by the department, after conclusion of trap proceedings. Even otherwise, PW3 explained in his testimony that said letter was issued because SI Rajender Sharma had become afraid of the trap proceedings, conducted by CBI. PW3 volunteered that A-1 had run away from the spot during trap proceedings on 28.01.2020 and he was not traceable for considerable time, during which his phone was switched off. That deposition was not countered by A-1, by giving him suggestions, to the contrary. In other words, A-1 did not dispute his own conduct as explained by PW3 when trap proceedings on 28.01.2020 were conducted. Questions arise, as to why A-1 fled away from the spot and why he switched off his mobile phone. A-1 nowhere explained the same, during trial. It only supported prosecution version.
43.23 PW3 also deposed in his testimony that A-1 had come to him and had demanded money, which he again repeated after 2-3 days by saying "Apke 20000 rupay hi lagenge, Inspector saab maan nahi rahe". He also deposed that he had never gone to A-1 with regard to his posting after his first visit to him. As per PW3, A-1 had come to him, on two occasions. It was only on the second visit of A-1 that PW3 had told A-1 that he will give the money in the hands of SI Rajender Sharma or in the hands of A-1. Later on, instead of paying money, he discussed the matter with his friend Virender Singh and CBI Case No.43/2020 Page 70 of 187 CBI vs. Kapil & Anr.
thereafter, approached CBI. Said depositions were not countered by accused persons, by giving suggestions to the contrary.
43.24 Further, PW3 was asked questions by drawing his attention towards the transcripts, which are on record. He was put contents of those transcripts, which he admitted. He was not given any suggestion, to the effect that said transcripts indicated that conversation with accused persons, was based on loan, which he had taken from SI Rajender Sharma. Infact, he admitted the suggestion that "Sewa" at point Y1 in transcript file Q-2 dated 25.01.2020, exhibited as Ex.PW3/10 and Ex.PW3/11, referred to "bribe money". It only supported the case of prosecution.
43.25 PW3 also deposed that he wanted A-1 to speak to SI Rajender Sharma through mobile phone, regarding bargaining money from Rs.20,000/- to Rs.15,000/- for his joining. He also deposed that he was giving money, lying in his pocket to A-1, on 25.01.2020, in terms of the conversation, he had with A-1. The money was not given to A-1 by PW3 as PW3 did not give the money to A-1. He admitted the suggestion that based on conversation with A-1, he asked A-1 to convey to SI Rajender Sharma that he wanted to pay the demanded bribe to him. As per him, the import and purport of conversation, recorded on 24.01.2020, as mentioned in the transcript, was that it pertained to "graft". He categorically denied the suggestion based on loan transaction with SI Rajender Sharma. PW3, therefore, stuck to his version, based on said deposition.
CBI Case No.43/2020 Page 71 of 18743.26 Based on aforesaid appreciation, I find that A-1 had demanded bribe amount of Rs.20,000/- from PW3, as per the testimony of PW3.
44. This brings me to the cross-examination of PW3 by A-2. Same is appreciated by me in my subsequent paragraphs.
44.1 PW3, in his testimony, deposed that on 25.01.2020, when trap team visited the office of A-1, PW3 met A-1 and talked to A-1. When PW3 spoke to A-1 about his posting, then A-1 told him to speak to A-2. Thereafter, PW3 met A-2 and A-2 advised him to pay the demanded graft amount. Thereafter, on 27.01.2020, PW3 received call from A-2, who asked PW3 to bring Rs.20,000/- on the next day in the office. Subsequently, 28.01.2020, PW3 went to the office of A-1 carrying chemical stained GC notes along with trap team.
44.2 Now, question arises, as to how to appreciate the said conduct of A-2. Can it be said that A-2 had not conspired with A-1 for getting graft amount? Can it be said that A-2 had merely asked PW3 about the graft amount, at the instance of A-1 and nothing else can be read into it? In order to get answers to the said questions, let us appreciate the evidence on record.
44.3 PW3, as such, had deposed that A-1 had asked A-2 to talk to PW3, outside the office of A-1 on 25.01.2020. A-2, after coming CBI Case No.43/2020 Page 72 of 187 CBI vs. Kapil & Anr.
out of the office of A-1, had asked PW3 to pay the graft amount. If A-2 had no concern with A-1 and/ or graft amount, then why did he comply with the said direction of A-1. As such, it is not brought on record by A-2 that he was subordinate to A-1 and he had to comply with the directions of A-1. Even otherwise, those directions were not legal and did not pertain to the work profile of A-2, who was a Safai Karamchari. So, A-2 was not bound to comply with those directions, which infact, he complied.
44.4 Further, PW3 had deposed that on 27.01.2020, he received a call from A-2, who asked him to bring Rs.20,000/- on the next day in the office. That fact was never disputed by A-2. As such, A-2 did not give any suggestion to PW3 to the effect that he had never called P-3 on 27.01.2020. So, that deposition, by PW3 regarding A-2 calling him on 27.01.2020, further proved the case of prosecution against A-2. If A-2 had nothing to do with the graft amount, then why did he call PW3, on his own? How did A-2 came to know about Rs.20,000/- graft amount? Why did he ask PW3 to bring that amount to the office on next day? Those were relevant questions, which should have been answered by A-2, while cross-examining PW3. That was not done by A-2. It did not help his cause.
44.5 In the cross-examination of PW3, A-2 asked about the regularization of post of A-2 and about the regularization of PW3.
CBI Case No.43/2020 Page 73 of 187Those were not relevant aspects in this case. Moving further, PW3 was given suggestions which PW3 admitted in following manner :-
It would be correct to say that the accused Dhan Singh never approached me to get my posting at any specific place as per my desire.
It is correct that accused Dhan Singh personally did not demand any money from me.
It is correct that accused Dhan Singh never said anything about the money to me for my posting. It would be correct to say that accused Dhan Singh had personally never demanded any money from me and that whenever he had contacted me, it was at the behest of accused Kapil.
It is correct that the conversation regarding the money between me and Dhan Singh, if at all, were only in terms of the directions given by accused Kapil to accused Dhan Singh.
44.6 Above mentioned suggestions, though admitted by PW3, did not help the cause of A-2. Reason being, that those suggestions nowhere disputed the facts which were deposed by PW3, in his examination-in-chief. They did not dispute about the call, made by A-2 to PW3 on 27.01.2020. They did not explain, as to why A-2 asked PW3 to pay graft amount, on the asking of A-1. The fact that CBI Case No.43/2020 Page 74 of 187 CBI vs. Kapil & Anr.
A-2 had asked PW3 and had contacted him at the behest of A-1, which is the suggestion, given by A-2 and which is the best case of A-2, did not absolve A-2 from this case. It only indicated the possibility of A-1 & A-2 conspiring together, for getting bribe amount. No other possibility can be seen regarding the justification of A-2 contacting PW3 at the behest of A-1.
44.7 Besides that, PW3 was questioned by A-2 about the facts viz., that A-2 never asked him about his posting; that A-2 had never demanded money from him for getting posting after regularization order; that A-2 never had any conversation with PW3 personally regarding demand or acceptance of money for getting posting and about their acquaintance with each other. All the said facts were inconsequential, as PW3 deposed, rather repeated the facts, regarding A-2 talking to him after being asked by A-1, outside the office of A-1 and A-2 calling PW3 on 27.01.2020 for bringing the amount of Rs.20,000/- to the office. So, PW3 stuck to his version. The facts deposed by him only prove that A-2 had asked him about bribe amount of Rs.20,000/- on call and that he had tried to convince PW3 to pay said bribe amount. Those facts proved that A-2 had demanded bribe amount, independently, when he made a call to PW3 and in conspiracy with A-1 when he talked to PW3 outside the office of A-1 on 25.01.2020. No other conclusions can be drawn apart from the same.
CBI Case No.43/2020 Page 75 of 18744.8 A-2 did not give any suggestion to PW3 to the effect that he had never conspired with A-1 for extracting bribe money from PW3. A-2 did not give any suggestion regarding him not understanding the directions of A-1, which pertained to recovery of bribe amount from PW3. A-2 did not give any suggestion to the effect that he was trying to convince PW3 to repay loan amount to SI Rajender Sharma, as was the case of A-1. He did not give any suggestion, based on his ignorance with regard to the demand of bribe amount by A-1. Lack of said suggestions by A-2 towards PW3 did not help the cause of A-2. It only probabilized the situation that A-2 knew that A-1 was demanding bribe amount of Rs.20,000/- from PW3 for giving posting to PW3 and A-2 was trying to convince PW3 to pay said amount to A-1. No other possibility can be seen, based on above mentioned appreciation.
45. Both accused persons did not deny the veracity of the transcripts, placed on record by prosecution. Infact, questions were asked from PW3, by referring to the contents of transcripts. By doing so, accused persons admitted the contents of said transcripts. They did not highlight the shortcomings in the transcripts by specifically pointing out to PW3. Apart from that, PW3 did not accept the defence of accused persons. PW3 was able to depose uniformly that A-1 had demanded bribe amount from him and in that regard only, A-2 had made conversation with him. The fact that said bribe amount had to be further paid to SI Rajender Sharma, as was put forth to PW3, while CBI Case No.43/2020 Page 76 of 187 CBI vs. Kapil & Anr.
doing his cross-examination, did not absolve accused persons from this case. The veracity of audio recordings, transcripts, memos along with CDR & CAF records, was not objected to by accused persons by cross-examining PW3. It only helped the case of prosecution.
46. PW3, as such, was a bonafide complainant. Accused persons failed to give any suggestion to him, to the effect that because of such and such reason, he had deposed falsely against them. Accused persons failed to bring on record any doubtful antecedents of complainant, by cross-examining him, which could have made his testimony doubtful. Accused persons failed to specify any false motive on the part of complainant, which was the reason of complainant, deposing against them. The only possibility which I found probable, behind the complaint of complainant, was that he had filed the complaint and had deposed in this case, bonafidely.
47. So, I find, based on aforesaid appreciation, that testimony of PW3 was trustworthy and reliable.
PW4
48. PW4 - Ramesh Verma was the Additional Commissioner, South DMC, who had deposed that being competent authority, he had given sanction orders Ex.PW4/1 (colly) and CBI Case No.43/2020 Page 77 of 187 CBI vs. Kapil & Anr.
Ex.PW4/2 (colly) under Section 19 of PC Act against both accused persons for prosecution in this case.
48.1 Neither, official post of said witness was disputed nor his competency to pass said orders was disputed by accused persons by cross-examining him.
48.2 So far as, A-1 is concerned, while cross-examining this witness, he asked questions viz., typing of said sanction orders, dictation of said sanction orders, number of audio recordings he had heard before passing said orders, time he had taken for passing said orders and about departmental action against SI Rajender Sharma. PW4 answered the said questions satisfactorily. Infact, those aspects were not relevant for the purpose of adjudication of this case. Therefore, they are discarded by me.
48.3 A-1 gave suggestions to this witness to the effect that he had passed said sanction orders which were already typed by CBI officials and he had merely signed those orders. He was also given suggestion that he had not heard audio recordings and had not gone through documents, relevant for this case, while passing said sanction orders. Lastly, he was given suggestion that he had passed those orders mechanically. All the said suggestions were refuted by him. As such, PW4 did not accept the defence of A-1 regarding sanction orders being passed without application of mind.
CBI Case No.43/2020 Page 78 of 18748.4 Even otherwise, A-1 should have given reasons behind giving suggestions to PW4, while cross-examining PW4, so that his suggestions could have become believable. A-1, nowhere, explained, as to how he came to know that those orders were typed by CBI officials and that he had signed those orders, without going through the record and without hearing audio recordings. Since, it was not done by A-1, so his cross-examination of PW4 did not help his cause.
48.5 A-2, through his counsel, adopted the cross-examination, done by A-1. So, conclusion drawn above, was applicable to A-2 and it did not help his cause.
48.6 In the light of above mentioned appreciation and conclusion, I find that PW4 was a trustworthy and reliable witness.
PW5
49. PW5 - Shiriniwas Vashisht was a Sanitary Superintendent. In his testimony, he deposed about the facts that he knew about accused persons, complainant and SI Rajender Sharma, as they used to work in the same department, during the relevant time. He identified accused persons in the Court. As per him, CBI had called him in the office for identifying the voice in audio recordings, which were recorded during investigation. He identified the voices of accused persons, Rameshwar and Rajender Sharma. He identified his CBI Case No.43/2020 Page 79 of 187 CBI vs. Kapil & Anr.
signatures on voice identification memo Ex.PW5/1. In his presence, certain audio files were played, which were recorded in SD card in exhibits Ex.PW3/5 and Ex.PW3/12. He identified the voices of accused persons, complainant and SI Rajender Sharma in the said files, when they were played in the Court, on the laptop.
49.1 PW5 was asked questions in cross-examination by A-1 about the powers of SI Rajender Sharma, Rameshwar Dayal and A-1. Those aspects were not relevant for the purpose of adjudication of this case. I discarded the same accordingly.
49.2 PW5 stuck to his version regarding him identifying the voices of persons, as mentioned above, in audio recordings, played by CBI during investigation. He identified the said voices in the Court also when those audio recordings were played. As such, his testimony stood the acid test of cross-examination. I believed his testimony to be trustworthy and reliable.
PW6
50. PW6 - Rajan Kumar was an independent witness, from the office of RCS. In his testimony, he deposed that on 10.08.2020, he was called by CBI, through a notice and he went there with the permission of concerned competent officer of his office. On reaching, CBI office, he was informed that in his presence, voices of four CBI Case No.43/2020 Page 80 of 187 CBI vs. Kapil & Anr.
persons shall be recorded. Thereafter, in fresh DVR, containing SD cards, voices of four persons viz., A-1, A-2, Rameshwar and another person whose name he could not recall, were recorded. His own voice was recorded firstly and at the end of the said recordings. In between, voices of said persons were recorded. He confirmed that those persons had given their voice samples, independently, without any pressure. He identified sample voice recording memos as Ex.PW6/1 to Ex.PW6/4. In his presence, envelopes containing the SD cards were opened and those SD cards were played in a laptop in the Court. He identified the voices of A-1, A-2, Rameshwar and Rajender Sharma, after hearing their voices. The envelopes along with SD cards were identified by him as Ex.PW6/6 (colly) to Ex.PW6/9 (colly).
50.1 The said testimony of PW6, deposed by him, in his examination-in-chief, reflected that CBI had taken adequate precautions to record voice samples of four persons, mentioned above, by securing presence of this witness. His testimony also indicated that he had no acquaintance with the said four persons, prior to meeting them in the office of CBI and that no pressure tactics, was used by CBI, in his presence for recording of voice samples of said persons.
50.2 Both accused persons cross-examined this witness, jointly through common counsel. In his cross-examination, PW6 was CBI Case No.43/2020 Page 81 of 187 CBI vs. Kapil & Anr.
asked questions, pertaining to his qualification, manner in which, words were spoken by him and witnesses, at the instance of CBI and contents of the sample voice recording memos Ex.PW6/1 and Ex.PW6/2 wherein expression "accused" was used prior to the names of Rameshwar and Rajender Sharma, respectively.
50.3 Those questions asked by accused persons did not make any difference to the veracity of testimony of this witness. Reason being, that this witness was a witness, in whose presence, voice samples were taken by CBI. The aspect of undue influence over said witness and the aspect of this witness being a tutored witness of CBI, were relevant. Accused persons should have concentrated their cross- examination, with respect to said aspects. It was not done while cross- examining PW6. So, cross-examination of PW6 did not help the cause of accused persons. More so, where, PW6 refuted the suggestion that he was deposing falsely and where, no other suggestion based on the questions, asked from him, was put to him. Therefore, I find that his testimony was trustworthy and reliable.
PW7
51. PW7 - Rameshwar Dayal was an Assistant Sanitary Inspector in SDMC, at the time, when said trap proceedings had taken place. In his testimony, besides disclosing about his said rank, he deposed that on 25.01.2020, when he had gone to mark his attendance CBI Case No.43/2020 Page 82 of 187 CBI vs. Kapil & Anr.
in attendance register before A-1, he found A-1, A-2 and complainant, present there. Prior to 25.01.2020, he was not acquainted with complainant. Since, A-1 had called complainant by his name, in his presence, so, he came to know about the name of complainant.
51.1 PW7 further testified that complainant was giving Rs.15,000/- to A-1 but A-1 was asking for Rs.20,000/- by stating, "bees hazar rupay lagenge" to join the duty. He also confirmed that there was some, "lane den" between them. Thereafter, in his presence, A-2 was sent by A-1 outside the office for settling the matter i.e. "baat cheet karne ke liye". He also observed that A-2 had told A-1 over a telephonic call that complainant was giving Rs.15,000/- only but A-1 was insisting for Rs.20,000/-. He had no idea as to why complainant was giving said money and why A-1 was demanding Rs.20,000/-. He had no clue about the purpose of said money. He only advised those persons to resolve the issue and not to linger on.
51.2 Besides that, PW7 had no knowledge about the total posts, available in the Ward or the posts which were vacant or regular sanctioned posts.
51.3 In the presence of PW7, SD card placed in envelope Ex.PW3/12 was played in the Court, which contained certain audio files. He identified voices of Rajender Sharma and complainant in CBI Case No.43/2020 Page 83 of 187 CBI vs. Kapil & Anr.
audio file no.200125_1358. He identified voices of A-1 and complainant in file bearing no.200125_1417. He also identified his own voice in the said audio file. He again confirmed that in his presence, A-1 was asking Rs.20,000/-, whereas, complainant was giving Rs.15,000/-, for joining duty.
51.4 So, the examination-in-chief of PW7 supported prosecution as it confirmed that in his presence, A-1 & A-2 had demanded bribe amount from complainant, for joining duty, on 25.01.2020. The fact that he identified voices of complainant and accused persons in the audio files, further indicated that CBI had investigated the matter in said manner. So, there was nothing unreasonable or doubtful about his said examination-in-chief.
51.5 Both accused persons through their counsel, cross- examined PW7 jointly. He was asked questions with respect to the aspect, as to whether he was referring to Rajender Sharma, in the conversations, he had with accused persons. His attention was drawn towards the transcripts Ex.PW3/11 in this regard but he did not give any categorical reply in positive or negative, to those questions. Reference to Rajender Sharma, by this witness, even if, believed to be true, did not absolve accused persons from this case, for the reason that this is not a case where fact-in-issue revolves around the criminality of Rajender Sharma. This is a case, where accused persons are charged with the offences under PC Act for demanding bribe CBI Case No.43/2020 Page 84 of 187 CBI vs. Kapil & Anr.
amount from complainant, under a conspiracy. PW7 did not accept the theory/ defence of accused persons to the effect that accused persons had not demanded any bribe amount from complainant. He uniformly stood on his ground and deposed what he had stated before CBI. Coupled with the same, accused persons did not bring in any iota of evidence, which could have indicated that Rajender Sharma was involved individually or along with accused persons, in the said crime with which accused persons were charged by this Court. So, cross-examination of PW7 with respect to aforesaid aspects did not help the cause of accused persons.
51.6 PW7 refuted the suggestions viz., non-demand of bribe by accused persons, no conversation being recorded involving accused persons and complainant for bribe amount and that he was deposing falsely under threat from CBI and accused persons. So, he did not accept the defence of accused persons.
51.7 So, based on aforesaid appreciation, I conclude that testimony of PW7 was trustworthy and reliable.
PW8
52. PW8 - Nitin Kumar was another independent witness, who deposed in his testimony that in January 2020, he was posted as Clerk in Bank Of India, CGO Complex, New Delhi. On the CBI Case No.43/2020 Page 85 of 187 CBI vs. Kapil & Anr.
instructions of AGM, he went to CBI office on 24.01.2020, where he met complainant, Virender Singh (friend of complainant) and SI Vikrant Tomar. He was briefed about the complaint of complainant and thereafter, verification proceedings for verifying the complaint of complainant took place, in which, he deposed facts in sync with prosecution version. Same are not repeated here for the sake of brevity.
52.1 Besides that, PW8 had joined trap proceedings on 25.01.2020 and 28.01.2020. He disclosed details of those proceedings, which again, were repetition of prosecution version. Same are not repeated here for the sake of brevity.
52.2 He identified various memos, prepared during investigation. He identified voices of the persons, recorded during investigation when audio files in SD cards were played in the Court. Same again are not repeated here for the sake of brevity.
52.3 Suffice it is, to mention here that based on voice recordings, he confirmed in his deposition that A-1 and A-2 had conversation with complainant, whereby demand of Rs.20,000/- was made by them.
52.4 PW8 was cross-examined at length by accused persons.
CBI Case No.43/2020 Page 86 of 18752.5 So far as, A-1 is concerned, he questioned the manner in which, proceedings had taken place, during investigation. PW8 was able to give details of the same, satisfactorily. As such, those details only corroborated prosecution version and did not make any dent on the testimony of PW8.
52.6 Various suggestions were put to PW8 viz., that PW8 was called in CBI office on 17.08.2020; that PW8 had not gone to CBI office before 17.08.2020; that he was a planted witness; that all the exhibits were made on 17.08.2020; that he had not applied his mind before recording his statement under Section 161 CrPC; that he had seen written complaint of complainant on 17.08.2020; that he was not part of trap proceedings which were conducted on 24.01.2020, 25.01.2020 and 28.01.2020; that he had not gone to MCD office on any of said three dates; that all the locations and offices, mentioned in his examination-in-chief were told to him by CBI and that he was deposing falsely. PW8 refuted those suggestions and thus, did not help the cause of A-1.
52.7 Besides that, PW8 categorically deposed in his cross- examination that complainant had informed him and others, present in the office of CBI about the fact that A-1 had demanded bribe of Rs.20,000/-. He denied that he had interpreted the conversation as demand of bribe and amount being in thousand, at the suggestion of CBI officials. He also deposed that he came to know that A-2 was CBI Case No.43/2020 Page 87 of 187 CBI vs. Kapil & Anr.
speaking to A-1 on call as name of A-1 was being taken by A-2 during said call. Said deposition, as such, did not cast any doubt on his testimony.
52.8 So, A-1 was not able to make any dent of doubt in the testimony of PW8.
52.9 So far as, A-2 is concerned, he also questioned PW8 with regard to the timings when proceedings on 24.01.2020 and 25.01.2020 had taken place. PW8 answered those questions satisfactorily. There was nothing unreasonable or doubtful about said answers, being given by PW8. Further, PW8 was asked aspects viz., the place where he was standing when he visited the office of A-1 on 24.01.2020 and 25.01.2020, the time which was spent in the office of A-1, when trap proceedings were conducted and about him hearing the conversation of complainant and accused persons. Those questions indicated that A-2 admitted the fact that PW8 had joined the proceedings on 24.01.2020 & 25.01.2020. PW8 gave answers to the said questions, by giving necessary details. As such, there was nothing unreasonable or improbable, in the conduct of PW8. Apart from that, I find that those aspects were not relevant, once audio files in original are placed on record by prosecution and once, this witness had deposed about his visits to the office of A-1, in sync with prosecution version. The fact that witnesses identified their voices in CBI Case No.43/2020 Page 88 of 187 CBI vs. Kapil & Anr.
said audio files, when those audio files were played in the Court, made the aforesaid questions, meritless.
52.10 Even otherwise, accused persons did not put their defence of PW8 being an interested witness. A suggestion was put to him, to the effect that he was a regular planted witness of CBI which he refuted. It was never explained by accused persons as to based on what record, they had claimed so. No proof was filed by accused persons to the effect that this witness had deposed in favour of CBI in some specific cases. So, said claim of accused persons was baseless.
52.11 PW8 explained in his testimony that on 25.01.2020, he had heard A-2 speaking to someone on phone and talking to complainant, when they had come out from the office of A-1. It only made the case of prosecution, stronger.
52.12 As such, based on aforesaid appreciation, I find that testimony of PW8 was trustworthy and reliable.
PW9
53. PW9 - Naveen Bhardwaj was another independent witness, being an Inspector in GST Department, Delhi. He deposed in his testimony about him joining investigation on 25.01.2020. He deposed facts viz., the manner in which pre-trap proceedings were CBI Case No.43/2020 Page 89 of 187 CBI vs. Kapil & Anr.
conducted in CBI office and later on, visit to the office of A-1 and finally, returning back to CBI office, in sync with prosecution version. Details of the same are not repeated here for the sake of brevity. He identified voices of the concerned persons in audio recordings, played in the Court, which were so recorded, during investigation in DVR, containing SD cards, being carried by complainant.
53.1 He identified the documents/ memos, prepared by CBI during investigation. So, his examination-in-chief, only supported prosecution version.
53.2 In his cross-examination by A-1, PW9 was asked questions with regard to the manner he had joined investigation and the manner in which, trap proceedings had taken place on 25.01.2020. He did not faulter on material particulars of this case. He lacked knowledge regarding facts viz., name of friend of complainant who had accompanied him on 25.01.2020, the persons from CBI who were present in the room when his introductory voice was recorded, the colour of building of SDMC where he had visited and the fact that CBI had told him on 17.08.2020 that SI Rajender Sharma and ASI Rameshwar Dayal were no longer accused in this case. Lack of knowledge with regard to aforesaid facts, did not make his testimony doubtful. Reason being, that those facts did not create doubts on the facts, deposed by him, in his examination-in-chief. Further, those CBI Case No.43/2020 Page 90 of 187 CBI vs. Kapil & Anr.
facts were facts based on marginal aspects, to the issue-in-hand and did not deal with the fact-in-issue, involved in this matter.
53.3 PW9 was put suggestions viz., that he had not taken part in trap proceedings, as deposed by him; that he had signed the documents in CBI office; that he had not witnessed any trap proceedings; that accused persons were falsely implicated; that he was a planted witness who had deposed in favour of CBI in similar other matters; that all the proceedings in this case conducted by CBI were fabricated and manipulated and that he was deposing falsely at the behest of CBI. PW9 refuted said suggestions and therefore, he did not accept the defence of A-1.
53.4 So far as, A-2 is concerned, he accepted the cross- examination, which was done by A-1. So, conclusion drawn above, applied to the cause of A-2. Besides that, A-2 asked questions with regard to the manner in which PW9 had received instructions from seniors to visit CBI office and the details of his mobile number. Those aspects were not relevant and therefore, I discarded the same.
53.5 In the wake of above mentioned appreciation, I find that PW9 was a trustworthy and reliable witness.
CBI Case No.43/2020 Page 91 of 187PW10
54. PW10 - Pradeep Kumar Sharma deposed in his testimony that in January 2020, he was posted as Administrative Officer in the Department Environment Management Services (DEMS), SDMC. He was acquainted with SI Rajender Sharma, A-1, ASI Rameshwar Dayal and complainant. He testified that in his tenure, temporary officials of SDMC were regularized by DEMS, Head Quarters and were then sent to concerned zones and thereafter, were given postings in the Wards, based on vacancies. He deposed that complainant was given order for joining in Ward 3S by his office. He identified the letter along with other documents, in this regard as Ex.PW10/1 (colly). He also identified letter along with other documents, pertaining to posting of Rameshwar Dayal as Ex.PW10/2 (colly). Besides that, he identified letter dated 07.08.2020, pertaining to sanctioned and actual strength of Ward 3S, given to Sumit Kumar. On all the said three letters, he identified his signatures at point A. He also identified order of complainant for joining in Ward No.3S as Ex.PW3/DX-2. He identified A-1 in the Court.
54.1 In his cross-examination, PW10 was put questions, based on documents, he identified in his examination-in-chief. Nothing material, supporting the defence, was culled out, from said cross- examination by accused persons. As per his knowledge, letter Ex.PW3/DX-1 was not marked to A-1 and SI Rajender was the CBI Case No.43/2020 Page 92 of 187 CBI vs. Kapil & Anr.
concerned officer, who was responsible for assigning, working post to complainant. He testified that regularization of an official had to be done by Head Quarter.
54.2 Said cross-examination of PW10 did not cast any doubt on the testimony of PW10. Said witness was an official witness, who had placed on record official documents, pertaining to regularization of complainant and joining of complainant. Those documents were not objected to by accused persons. No suggestion was given by accused persons, to the effect that those documents were forged or that said witness was deposing falsely.
54.3 As such, testimony of PW10 only supported prosecution, to the effect that complainant was regularized by his department and he was allowed to join in Ward No.3S. It also corroborated the prosecution version, to the effect that SI Rajender Sharma was the person, responsible for assigning posting to complainant. Now, these facts only strengthened the case of complainant, who had alleged that he was regularized by his department and thereafter for getting posting in Ward 3S, he had approached A-1. In that background, the allegations of complainant that A-1 had demanded bribe, only gets probable. As such, A-1 never directed complainant to not to talk to him, rather should approach SI Rajender Sharma, directly. Response of A-1, in the light of documents, exhibited by PW10, supported prosecution.
CBI Case No.43/2020 Page 93 of 18754.4 Testimony of PW10, therefore, was found by me as trustworthy and reliable.
PW11
55. PW11 - Aditya Kumar Singh was an independent witness, who had joined the investigation on 28.01.2020. In his testimony, he deposed that on 28.01.2020, when he was posted as Manager, Scale-II with Syndicate Bank, R.K. Puram, Delhi, he had gone to CBI office, on the directions of his office. After reaching CBI office, he met complainant, another independent witness Nitin and CBI officials. He was briefed about the complaint of complainant. He deposed facts viz., pre-trap proceedings comprising of demonstration proceedings of use of SD card in DVR, application of chemical on currency notes and effect of use of that chemical in Sodium Carbonate Solution, placement of those currency notes in the pocket of complainant, fixing of fresh DVR in the pocket of complainant, visit to the office of A-1 and thereafter, returning back to CBI office.
55.1 He identified voices of the persons, which were recorded in SD card, during said trap proceedings, when they were played in the Court. He identified the envelope Ex.PW3/16 which contained the said SD card, also.
CBI Case No.43/2020 Page 94 of 18755.2 In his cross-examination, A-1 asked this witness about facts viz., the manner in which he had reached the office of CBI on 28.01.2020, recording of video or taking photograph when his introductory voice was recorded, the manner in which introductory voice of another independent witness was recorded and about recording of his statement by CBI. Those aspects were not relevant as this witness deposed facts regarding joining trap proceedings on 28.01.2020, which were corroborated by the audio recordings, which he identified in his testimony. No doubt was created by A-1 by cross- examining this witness with respect to said aspects.
55.3 PW11 refuted suggestions viz., that he did not join trap proceedings; that he was not called by CBI for joining proceedings; that he was a planted witness by CBI; that he was not in a position to see complainant and independent witness Nitin going inside the office of A-1 and that he had deposed on the basis of hearsay. So, he did not accept the defence of A-1.
55.4 PW11 did not give specific reply with respect to certain aspect viz., that Virender Singh had joined trap proceedings with him; that he had gone to CBI office on 19.08.2020; that his statement was recorded by CBI which he had signed; that the name of person who had informed him about accused persons demanding money from complainant for his posting; that CBI officials had informed him that SI Rajender Sharma is not cited as an accused and that DVR was CBI Case No.43/2020 Page 95 of 187 CBI vs. Kapil & Anr.
switched off after recording of introductory voice. Those aspects did not create any doubt on the facts, deposed by this witness in his examination-in-chief. Again, those aspects were ancillary in nature and did not adversely affect the prosecution case. Therefore, it did not help the cause of accused persons. Even otherwise, I find that said aspects, were minute details of the case, which had taken place in the year 2020. Now, this witness had come in the Court for deposing in the year 2024. Possibility of his memory fading away, leading to non- specific replies by him, with regard to said aspects, as such, cannot be ruled out. There is nothing abnormal about the said manner of deposition by this witness, based on said appreciation.
55.5 Therefore, based on aforesaid appreciation, I find that PW11 was an independent witness, who had deposed, without being influenced by anybody, in the Court. His testimony was found by me to be trustworthy and reliable.
PW12
56. PW12 - Inspector Sumit Kumar was one of the Investigating Officer in this case. In his testimony, he deposed that on the directions of SP concerned, this matter was given to him for investigation. Earlier, it was being investigated by Inspector Dharmender Kumar.
CBI Case No.43/2020 Page 96 of 18756.1 During his tenure as an Investigating Officer, he collected documents from previous IO through handing over memo. He identified the documents, prepared by the previous IO which are already exhibited in the testimony of PW3. He collected CDR & CAF records from the concerned companies, details of which are mentioned in the testimonies of PW1 & PW2. He identified the voice sample memos and voice identification-cum-transcript memos, already exhibited in the testimonies of PW3, PW5 & PW6. Details of the same are not repeated here for the sake of brevity. Besides that, he identified memos which he had prepared during investigation as Ex.PW12/1 & Ex.PW12/2, bearing his signature at point A. He identified letters exhibited in the testimony of PW10, memos exhibited in the testimony of PW2 and letters exhibited in the testimony of PW1. Lastly, he identified letter dated 06.10.2020, written by the then SP to CFSL as Ex.PW12/3 by identifying the signature of said SP Ashwin Shenvi and envelopes along with DVR, collectively referred as Ex.PW12/4. He identified the voices of the concerned persons in audio files, played in the Court, which were so recorded during investigation.
56.2 In his cross-examination, PW12 deposed that he had prepared transcript after listening to the recordings, which were recorded during investigation. He deposed that he had put questions to complainant with regard to conversation, complainant had with accused persons on 24.01.2020, 25.01.2020 and 28.01.2020. He CBI Case No.43/2020 Page 97 of 187 CBI vs. Kapil & Anr.
confirmed that every action taken by CBI, is duly recorded by CBI and in those recordings, details of persons who had participated were also mentioned. He was given suggestion to the effect that superior officials of CBI had instructed him to implicate A-1 in present case by all means and that is why he did not enquire from complainant about the previous transactions of complainant and A-1 or Rajender Sharma. That suggestion was refuted by PW12. That suggestion was never explained by A-1 during trial. In other words, A-1 never explained as to which officers of CBI wanted A-1 to be implicated in this case and what was the interest of those officers in that regard. He refuted the suggestion of complainant writing his complaint Ex.PW3/1, on the directions of CBI officers for falsely implicating A-1.
56.3 PW12 explained that in the transcripts of the conversation dated 24.01.2020, the word "peshkesh" and the sentences, "jo tane karna hai, wo kar de.....15 ek de diya......yeh diye hai" implied bribe. That explanation strengthened prosecution version as said explanation was not countered A-1 by asking further questions. He admitted that he was of the opinion that "sewa" used in the conversation referred to "bribe". A-1 did not give any counter explanation to the meaning of "sewa" used in the conversation between the parties.
56.4 PW12 refuted the suggestion that Rajender Sharma was removed from charge-sheet from the category of accused. No reason CBI Case No.43/2020 Page 98 of 187 CBI vs. Kapil & Anr.
was given by A-1, based on which, he had claimed that Rajender Sharma was removed from charge-sheet from the category of accused. In other words, A-1 did not explain as to why CBI would have removed Rajender Sharma from the charge-sheet, being an accused. PW12, rather explained that during investigation, no fact was discovered which could have indicated that SI Rajender Sharma had demanded bribe from complainant and that is why SI Rajender Sharma was not arrayed as an accused.
56.5 PW12 was asked questions with regard to the power of A-1 to provide joining to complainant. Further, he was questioned about the letter of complainant, pertaining to joining, addressed to SI Rajender Sharma. He was asked questions with regard to investigation, being carried out by CBI against SI Rajender Sharma on different angles. He was asked questions based on involvement of SI Rajender Sharma with regard to receiving of bribe from complainant through A-1. Again, said questions did not absolve A-1 from this case. Those questions pertained to the role of SI Rajender Sharma and I again reiterate that in this case, SI Rajender Sharma is not the accused. I failed to understand as to how in the light of incriminating evidence against him, A-1 would have benefited, if SI Rajender Sharma was implicated in this case. Fact of the matter remains that not only complainant but other witnesses, of prosecution, have deposed that A-1 had demanded bribe money from complainant. None of the prosecution witnesses deposed that SI Rajender Sharma CBI Case No.43/2020 Page 99 of 187 CBI vs. Kapil & Anr.
had demanded bribe from complainant, which also did not help the cause of accused persons. So, the aspect of implication of SI Rajender Sharma in this case, as highlighted by A-1, while cross-examining PW12, was baseless.
56.6 PW12 was asked about his opinion regarding the interpretation of words used in transcripts, recorded during investigation. PW12 explained that contents of said transcripts indicated the fact that bribe amount was demanded by A-1 and not by SI Rajender Sharma. So, PW12 deposed on the same lines, as that of prosecution.
56.7 PW12 admitted the suggestion that A-2 had called from his mobile phone to A-1 while having conversation with complainant. Further, he was asked, if it is correct that A-2 had made conversation with complainant and that call was made by A-1 to A-2. Those suggestions were admitted by PW12. I failed to understand as to why those suggestions were put to this witness, as they indicated conversation between complainant and accused persons, which were relevant facts and which only supported prosecution. So, A-1, in a way confirmed prosecution story by putting those suggestions.
56.8 PW12 was asked questions with regard to the conversations between complainant and accused persons. Those conversations were recorded in audio files and those audio files along CBI Case No.43/2020 Page 100 of 187 CBI vs. Kapil & Anr.
with transcripts are appreciated by me separately in this judgment. Therefore, they are not appreciated here, at this stage, in detail.
56.9 PW12 confirmed that SI Rajender Sharma was not made accused in this case, as there was lack of credible and sufficient evidence and it was collective decision of the department, to not implicate him. PW12 also deposed that based on collective decision of the department, persons viz., Dipender Kumar Singh, Harish Chander, S.N. Vashisht, Vinod, Harnam Singh, CMS Negi, Nikesh Upadhyay, S.P. Singh, Pradeep and Vikas Pannu were not made witnesses. Accused persons argued that by not implicating SI Rajender Sharma as accused and by not naming above mentioned persons as witnesses, investigation was not proper and benefit of the same has to be given to accused persons. Thus, they claimed that due to improper investigation, accused persons should be acquitted.
56.10 Before appreciating the said arguments of Ld. Counsels for accused persons, I must mention here that irregularity or deficiency in investigation by IO need not necessarily lead to rejection of the case of prosecution, when it is otherwise proved. The only requirement is use of extra caution, in evaluation of evidence. A defective investigation cannot be fatal to prosecution where occular testimony is found credible and cogent. Reliance in this regard is placed on case laws titled as Khem Ram vs. State of Himachal Pradesh (2018) 1 SCC 202, State of Karnatka vs. Suvarnamma CBI Case No.43/2020 Page 101 of 187 CBI vs. Kapil & Anr.
(2015) 1 SCC 323 and Hema vs. State 2013 (81) ACC 1 (SC) - three Judge bench.
56.11 So, it is clear that defective investigation by itself, cannot be seen as ground for giving benefit to accused persons, if other evidence, produced by prosecution, is cogent.
56.12 Based on said understanding of law, I find that above mentioned claim of Ld. Counsels for accused persons, was not legally tenable. Reason being, that other evidence, brought on record by prosecution is found by me to be trustworthy. Apart from that, what is not brought by prosecution, is not relevant for the purpose of adjudication of this case. Coupled with the same, I find that so called improper investigation by CBI, as highlighted by Ld. Counsels for accused persons, did not make the other evidence, brought on record by CBI, doubtful.
56.13 Lastly, PW12 refuted suggestions, put to him by A-1 viz., that he deliberately did not enquire about financial transactions between complainant and A-1 or Rajender Sharma; that he had instructions from senior officers to falsely implicate A-1; that CBI deliberately destroyed investigation with regard to questions, put to Rajender Sharma for saving him; that CBI destroyed record with regard to questions, put to A-1; complainant had told him that A-1 was only trying to mediate between complainant and SI Rajender CBI Case No.43/2020 Page 102 of 187 CBI vs. Kapil & Anr.
Sharma; that Rameshwar Dayal and Dipender Singh were not present during investigation; that conversation between complainant and A-1 pertained to friendly loan; that investigation of CBI is faulty; A-1 is falsely implicated; CDRs of A-2 and another number of SI Rajender Sharma were removed from case file to support this case as those removed CDRs did not support the case of CBI; that SI Rajender Sharma had clarified the financial transactions with complainant; that SI Rajender Sharma did not want to disclose that he had given money to MCD employees with interest; that various CBI officials, as noted above did not depose in this case as they refused to support CBI because of biased investigation; that Virender Singh refused to support CBI as he was against biased investigation; that A-1 was trying to recover the money due to his senior SI Rajender Sharma which was paid to complainant; that complainant never used the word 'bribe' or resembling word during entire conversation; that A-1 had no power to give posting to complainant; that A-1 had no reason to demand any bribe from complainant; that A-1 was following orders from his superior SI Rajender Sharma and that this case was based on pre-recorded conversations heavily edited by complainant and his friend Virender Singh which were handed over by them to CBI.
56.14 Refusal of aforesaid suggestions means that PW12 did not accept the defence of A-1. Apart from that, accused persons, on their part, failed to answer following questions, during trial, which had arisen, on the basis of the suggestions which were given to PW12.
CBI Case No.43/2020 Page 103 of 187 Why SI Rajender Sharma was not made defence witness by accused persons?
How A-1 came to know that various witnesses refused to support CBI, based on biased investigation?
Which documents/ conversations were removed from the records and how A-1 came to know about the same?
On one hand, A-1 claimed by way of suggestion that friend of complainant Virender Singh did not come to depose as he found that in this case, biased investigation was being done and on other hand, A-1 gave suggestion that complainant along with Virender Singh had given conversations after editing them. Which version of A-1 had to be believed, and why?
Why was A-1 complying with the directions of SI Rajender Sharma regarding recovery of loan amount as it was not part of work profile of A-1?
Who gave authority to A-1 to mediate between complainant and SI Rajender Sharma for settling the dispute of financial transactions?
Why A-1 being a bonafide government employee, did not bring the said fact of SI Rajender Sharma giving loan to complainant to higher-ups?
CBI Case No.43/2020 Page 104 of 18756.15 In the absence of answers to said questions, the whole cross-examination of PW12 seemed to be a mechanical exercise, in which questions were put, just for the sake of it. So, questions which were asked during cross-examination of PW12, were having no basis and proof.
56.16 Further, PW12 was asked questions about the word, "Sewa", which he referred as "bribe" in the charge-sheet. He explained that based on cumulative assessment of entire material including the transcripts, he had the opinion "Sewa" meant "bribe". That understanding was not challenged by accused persons. Even otherwise, I found the said explanation, given by PW12, to be plausible, after considering the evidence, brought on record by prosecution, in this case.
56.17 PW12 was asked questions regarding reason of non- implication of SI Rajender Sharma in this case. He answered that due to lack of incriminating evidence against SI Rajender Sharma, he was not implicated in this case. Again, that explanation was not countered by accused persons, based on some specific reasoning.
56.18 Both accused persons, cross-examined PW12, on the basis of their claim that accused persons had not authority to give any posting to complainant and therefore, the whole version of complainant approaching A-1 for getting posting, was misplaced and CBI Case No.43/2020 Page 105 of 187 CBI vs. Kapil & Anr.
false. That claim of accused persons was not tenable as none of the prosecution witnesses, including PW12 accepted it and on other hand, that issue has to be seen from the perspective of complainant, who got regularized in his employment after spending 22 years of service. The fact that A-1 was senior to complainant, is not denied by accused persons. Coupled with the same, acquaintance of complainant with A-1 for more than a decade, is also not denied. In such circumstances, belief of complainant, that he can get posting through A-1, as such, was not improbable or unbelievable in nature. So, claim of accused persons regarding not believing the version of PW12 or complainant on the basis of the fact that accused persons had no role to give posting to complainant, was baseless.
56.19 Surprisingly, PW12 was asked questions, pertaining to departmental enquiry of SI Rajender Sharma and about lack of authority on the part of accused persons to give posting to complainant. He was also asked questions with regard to the interpretation of conversation between complainant and accused persons, which was recorded during investigation. All the said aspects, should have been asked by them from complainant or any witness from the department where complainant used to work. PW12 was an Investigating Officer and putting such questions to him was misplaced. Even otherwise, those questions were not relevant.
CBI Case No.43/2020 Page 106 of 18756.20 Besides that, PW12 was asked questions with regard to aspects like; wrong mentioning of certain dates/ words in the charge- sheet, non-recording of statements of some witnesses who were part of trap team and likewise. Those were irrelevant aspects as prosecution witnesses including PW12 stuck to their versions regarding accused persons, demanding bribe amount, from complainant, in the manner, which synced with prosecution version.
56.21 Therefore, testimony of PW12 stood the acid test of cross-examination and I believed him to be a trustworthy witness.
PW13
57. PW13 - Amitosh Kumar was the Senior Scientific Officer who deposed that based on request letter of CBI Ex.PW12/3 (colly), which his office had received, he was given the duty to do the examination. He considered all the parcels which accompanied said request letter and based on examination of the same, he filed his report Ex.PW13/1 (colly). He also deposed about his educational qualifications and experience of examining about 900 cases, prior to examining the evidence, collected by CBI in this case.
57.1 PW13 identified the envelopes which he had received from CBI, which contained DVR and SD cards, when they were CBI Case No.43/2020 Page 107 of 187 CBI vs. Kapil & Anr.
opened in the Court. Those envelopes were already exhibited in the testimony of PW3, PW6 & PW12, noted his signatures point A. 57.2 In his cross-examination, PW13 deposed that report Ex.PW13/1 (colly) was completely prepared by him and it did not contain any error, as per him. He deposed that he had received training in the field of auditory analysis of voice specimens, regarding which he had a certificate. Further, he had used Speech-Science-Lab software for segregating the words used for analyzing the audio files from Ex.Q-1 for A-1. He deposed that based on his auditory analysis, he had given his opinion in his report.
57.3 As such, there was nothing, based on which, I could have doubted his report and the manner in which, he had analyzed the exhibits, sent by CBI to his office. He refuted the suggestions of deposing falsely and not carrying out proper and scientific analysis of the exhibits. He denied filing of false report in this case. As such, his testimony was trustworthy and reliable. I believed his testimony accordingly.
PW14
58. PW14 - Vikrant Tomar was the Officer of CBI, who had verified the allegations of complainant, after receiving complaint of complainant on 24.01.2020. He deposed in his testimony, that he CBI Case No.43/2020 Page 108 of 187 CBI vs. Kapil & Anr.
was assigned the task to verify the contents of the said complaint by SP Abhishek Dular on 24.01.2020. He gave details of the said verification proceedings, which were in tune with prosecution version. Same are not repeated here for the sake of brevity. He also deposed that he had prepared the verification memo Ex.PW3/2, bearing his signature at point C. He identified the envelope, containing SD card and company paper packing with regard to said verification proceedings as Ex.PW3/5 (colly). He also deposed about the proceedings which took place on 25.01.2020 and 28.01.2020, which again were in tune with prosecution version. Same are not repeated here for the sake of brevity.
58.1 He identified documents viz., handing over memo Ex.PW3/6, pre-trap memos Ex.PW3/15 & Ex.PW3/28, along with envelopes Ex.PW3/5 (colly) and Ex.PW3/12 (colly) which were opened in his presence in the Court. He identified voice of independent witness Nitin Kumar in audio file no.200124_1437, when it was played in the Court.
58.2 In his cross-examination, PW14 clarified by answering that based on enquiry from complainant, he came to know that complainant had not given any bribe to accused persons and the financial aspect part in the complaint was written by mistake by complainant. Infact, the aspect of financial transactions between complainant and SI Rajender Sharma is already appreciated by me in CBI Case No.43/2020 Page 109 of 187 CBI vs. Kapil & Anr.
detail, while appreciating the testimony of complainant. Reference to the said financial transactions, while cross-examining PW14, therefore, was misplaced as PW14 was not the relevant person who could have explained the same.
58.3 PW14 deposed facts regarding independent witness Nitin Kumar, joining the proceedings on 24.01.2020, 25.01.2020 & 28.01.2020. He confirmed that complainant adhered to the directions, which were given to him, by CBI, during verification proceedings. He explained that though the word, "thousand" and / or "bribe" was not mentioned in the conversation, as noted in verification memo Ex.PW3/2 but it was an inference and corroboration from the complainant. That explanation was not countered by accused persons, through any reasoning.
58.4 PW14, in his deposition, deposed about him making enquiry from complainant. He answered that the specific demand for money was reflected from the words of A-1 when A-1 stated, "Pandrah mein uske haath mein pakdaunga". He gave details of the manner in which complaint was received at CBI office and the manner in which trap team had visited the office of A-1. No major contradiction was culled out by accused persons, by cross-examining him, which could have made his testimony doubtful. The above facts, deposed by him, only made his testimony trustworthy.
CBI Case No.43/2020 Page 110 of 18758.5 PW14 refuted suggestions viz., that entire case was managed by Virender Singh (friend of complainant); that complaint was filed after carrying out verification proceedings; that no verification or trap proceedings were conducted by CBI; that original complaint of complainant was wrongly destroyed by CBI; that complainant had money transactions with SI Rajender Sharma; that all the conversations reflected that complainant had loan transactions with SI Rajender Sharma which complainant had to return back with interest; that SI Rajender Sharma was not implicated as accused as SI Rajender Sharma had bribed CBI officers through CBI tout Virender Singh and that accused persons were falsely implicated in this case. It means that PW14 refuted the probable defence of accused persons.
58.6 Based on aforesaid appreciation, I believed the testimony of PW14 to be trustworthy and reliable.
PW15
59. PW15 - Inspector Dharmender Kumar was the initial Investigating Officer in this case. He deposed in his testimony about the trap proceedings which occurred on 25.01.2020 and he identified the memorandums dated 25.01.2020, which were already exhibited as Ex.PW3/6 (colly) and Ex.PW3/14 (colly), bearing his signatures at point X, in tune with the testimonies of other prosecution witnesses and the case of prosecution. Details of the same are not repeated here CBI Case No.43/2020 Page 111 of 187 CBI vs. Kapil & Anr.
for the sake of brevity. He also deposed about the chain of events which took place on 27.01.2020, in tune with prosecution version. Again, same are not repeated here for the sake of brevity. He identified memorandums dated 28.01.2020, already exhibited as Ex.PW3/15 & Ex.PW3/28, bearing his signature at point F. He identified the envelopes, which were already exhibited as Ex.PW3/30 (colly), Ex.PW3/16 (colly) and Ex.PW3/12 (colly), bearing his signatures at point X & D. 59.1 The examination-in-chief of PW15, therefore, reiterated the prosecution version and it did not attract any doubt.
59.2 In his cross-examination by A-1, PW15 deposed facts viz., that trap team on 25.01.2020 was constituted within 30 minutes; that he was part of around 10 trap proceedings in the past; that he had discussed the matter with complainant and after analyzing the verification proceedings, he came to the conclusion that demand was only made by A-1; that complainant was instructed specifically to bring bribe money on 25.01.2020 and 28.01.2020; that complainant did not violate the instructions which were given to him by CBI; that DVRs were 'switched on' and 'switched off' with his decision; that independent shadow witnesses had accompanied complainant to the office of A-1; that site plan was not prepared as trap was not successful; that complainant had told him about A-2 following complainant from the office of A-1 on his own and enquiring from CBI Case No.43/2020 Page 112 of 187 CBI vs. Kapil & Anr.
complainant about the matter; that DVR was 'switched on' when complainant had conversation with accused persons; that complainant had told him on 27.01.2020 that A-2 had told complainant that A-1 will not take any amount less than Rs.20,000/-; that he had heard the relevant portions of audio recordings for verifying the version of complainant, at the spot and not in CBI office; that complainant, in his conversation with SI Rajender Sharma was confirming the fact that A-1 was demanding money. All the said facts basically cleared the position and understanding of PW15. Those facts only supported prosecution version and did not cast any doubt on the testimony of this witness.
59.3 In his cross-examination by A-2, PW15 deposed facts regarding the time and circumstances when trap proceedings were conducted on 25.01.2020 and the fact that complainant had told him about the conversation which took place between complainant and accused persons. He also deposed that copy of audio files, pertaining to Q-2 & Q-3 were prepared by him and that site plan is prepared ordinarily when trap is successful. Said deposition again gave clarity to prosecution version and did not make his testimony doubtful.
59.4 PW15 was given suggestions viz., that accused persons were falsely implicated; that no trap proceedings, as deposed by him, had taken place; that audio recordings were forged; that case of CBI was false; that accused persons refused to bribe Virender Singh; that CBI Case No.43/2020 Page 113 of 187 CBI vs. Kapil & Anr.
Rajender Sharma and Rameshwar Dayal were not implicated in this case as they had paid bribe to CBI; that complete documents were not placed on record by CBI for falsely implicating accused persons; that audio files, placed on record were edited and were based on pre- recorded conversations; that independent witnesses had signed documents as they were planted witnesses who had not joined the proceedings during investigation; that SI Rajender Sharma had demanded money from complainant; that this witness had wrongly identified the signatures of witnesses on memos, prepared on 25.01.2020 & 28.01.2020; that no site plan was prepared as no trap proceedings took place and that he had made improvements in his testimony by repeatedly taking the name of A-1. Refusal to said suggestions by PW15 indicated that he did not accept the defence of accused persons.
59.5 As such, PW15 deposed facts which only supported prosecution. There was nothing unreasonable or improbable in his testimony. Therefore, I believed his testimony to be trustworthy and reliable.
APPRECIATION OF CDR AND CAF RECORD
60. Prosecution has placed on record CDR and CAF record, pertaining to mobile numbers of complainant and accused persons. Based on CAF record Ex.PW1/2, mobile number 9312109329 was CBI Case No.43/2020 Page 114 of 187 CBI vs. Kapil & Anr.
proved to be belonging to complainant. Based on CAF record Ex.PW1/4, mobile number 9212604605 was proved to be belonging to A-1. Further, pre-trap memo dated 28.01.2020 Ex.PW3/15, noted that mobile number 8810269991, belonged to A-2. Said record was not objected to on the ground of admissibility or mode of proof by accused persons. Further, accused persons did not deny the fact that said mobile numbers belonged to said persons. Coupled with the same, said CDRs were accompanied with certificates under Section 65-B IEA. Those certificates were not disputed by accused persons. The said certificates were furnished by competent officer of the concerned companies, which was maintaining CAF & CDRs. Testimonies of those competent officers viz., PW1 & PW2 are already found by me to be trustworthy and reliable. As such, I find that said CAF & CDRs were duly proved by prosecution.
60.1 In the wake of above conclusion, I find that CDRs furnished by PW1 & PW2, noted that complainant, A-1 & A-2 were in touch with each other, on 25.01.2020, 27.01.2020 & 28.01.2020, through their mobile phones. To highlight the same, I am mentioning the relevant call details, in tabular form, below :-
S.No Date Mobile No. Documents & Time 1 25.01.2020 9312109329 (Ranveer Singh) D-part of D20 (14.09
9212604605 (used by accused PM). It is part of Kapil) CDR, exhibited as Ex.PW1/5 and also in Ex.PW1/8 (colly) CBI Case No.43/2020 Page 115 of 187 CBI vs. Kapil & Anr.
2 27.01.2020 9212604605 (used by accused Part of D20 (9.11
Kapil) AM). It is part of
8810269991 (used by accused CDR exhibited as Dhan Singh) Ex.PW1/8 (colly) 3 27.01.2020 9312109329 (Ranveer Singh) Part of D20 (13.25 8810269991 (used by accused PM). It is part of Dhan Singh) CDR exhibited as Ex.PW1/7 (colly) 4 28.01.2020 9212604605 (used by accused Part of D20 (7.36 Kapil) AM, 7.40 AM, 7.41 8810269991 (used by accused AM). It is part of Dhan Singh) CDR exhibited as Ex.PW1/8 (colly) 5 28.01.2020 9312109329 (Ranveer Singh) Part of D20 (9.55 AM 8810269991 (used by accused & 11.52 AM). It is Dhan Singh) part of CDR, exhibited as Ex.PW1/7 (colly).
Further, this call was also recorded in the SD Card marked as Q-3 through DVR and transcript of the said recording also mentioned in the document (D-14).
Same was exhibited as Ex.PW3/19.
60.2 The above mentioned call detail records of mobile numbers of complainant and accused persons, indicated that they were talking to each other, at the said time on said days. Accused persons, failed to give any explanation, which is believable, countering the case of prosecution. In other words, I find that prosecution, on the basis of said calls records, proved the fact that CBI Case No.43/2020 Page 116 of 187 CBI vs. Kapil & Anr.
complainant and accused persons had talked to each other on said days. The trap proceedings were conducted during those days. The only possibility, which was probabilized, based on said call detail records, was that complainant and accused persons, were talking about bribery. Apart from that, no other possibility was seen by me. Accused persons failed to place on record any other probability, apart from the possibility of them talking about bribery with complainant.
60.3 So, said CDR & CAF records only supported and proved prosecution version.
APPRECIATION OF TAPE RECORDED STATEMENTS & THEIR TRANSCRIPTS
61. In order to give strength to its case, prosecution relied upon the electronic evidence, in the shape of audio recordings. The transcripts of said audio recordings are also part of record in this case.
61.1 Before appreciating the evidence based on audio recordings, collected by prosecution, I must mention here relevant law, governing the appreciation of tape recorded statements.
(i). In Ram Singh & Ors. Vs. Col. Ram Singh [AIR 1986 SC 3], Hon'ble Supreme Court laid down the conditions for admissibility of tape recorded statements as under:-
CBI Case No.43/2020 Page 117 of 187CBI vs. Kapil & Anr.
(1) The voice of the speaker must be duly identified by the maker of the record or by others who recognize his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker, it will require very strict proof to determine whether or not it was really the voice of the speaker.
(2) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence direct or circumstantial.
(3) Every possibility of tampering with or erasure of a part of a tape recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.
(4) The statement must be relevant according to the rules of Evidence Act.
(5) The recorded cassette must be carefully sealed and kept in safe or official custody.
(6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances.
(ii). In Anvar P. V. Vs. P. K. Basheer & Ors. [(2014) 10 SCC 473] wherein three Judges Bench of Hon'ble Supreme Court held that "certificate u/s 65-B of Indian Evidence Act is necessary for admissibility of secondary evidence of electronic records. It was further held that the safeguards provided u/s 65-
B are to ensure the source and authenticity and electronic records and without such safeguards, whole trial based on proof of electronic records can lead to travesty of justice".
CBI Case No.43/2020 Page 118 of 187(iii). In C. R. Mehta Vs. State of Maharashtra [1993 Crl. L. J. 2863], it was held that "if the tape recorded evidence is to be acceptable, tape must have been sealed at earliest point of time and not opened except under the orders of Court".
(iv). In Anil Kumar Tito @ Anil Kumar Sharma @ Titto Vs. State NCT of Delhi [2015(8) LRC 297(Del), it was held that "where the accuracy of tape recorded statement is not proved by satisfactory evidence, tape recorded conversation does not stand the test of requisites spelt out by Apex Court in the case of Ram Singh (supra)".
61.2 So, in the wake of above law, it has to be appreciated, whether speaker whose voice was recorded, was able to identify his own voice and whether he identified the voice of the person/ persons with whom he had communicated. It has to be appreciated, whether there was possibility of tampering or eraser of a part of tape recorded statement. The sealing of said recordings also is of grave importance. The voice of the speaker must be clearly audible and must not be lost or distorted due to other disturbances.
61.3 Besides aforesaid aspects, I have to appreciate, as to whether said recordings and its transcripts were in the same line, as was the case of prosecution or whether they indicated something else. In other words, I had to appreciate, whether said recordings and CBI Case No.43/2020 Page 119 of 187 CBI vs. Kapil & Anr.
transcripts proved the fact that accused persons had made conversations, based on demand of bribe amount from complainant or whether they indicated that SI Rajender Sharma had given loan amount of Rs.20,000/- to complainant, which SI Rajender Sharma was demanding along with interest from complainant? Those were the two extremes, which were based on rival contentions of prosecution and accused persons.
61.4 Keeping in mind above law and understanding, pertaining to tape recorded statements, I am proceeding further.
61.5 Record revealed that audio recordings of conversations were recorded in SD cards, placed in DVRs on 24.01.2020, 25.01.2020 & 28.01.2020.
61.6 After going through the said audio recordings and transcripts, I found some of them relevant, which I am mentioning, in verbatim, in my subsequent paragraphs. The transcripts which are not mentioned in this judgment were found by me to be inconsequential and/ or irrelevant for deciding issue in hand.
61.7 To start with, I find that on 24.01.2020, verification proceedings were conducted, as noted in verification memo Ex.PW3/2. Those verification proceedings were conducted, for CBI Case No.43/2020 Page 120 of 187 CBI vs. Kapil & Anr.
verifying the allegations of complainant, made by him in his complaint Ex.PW3/1.
61.8 Said verification proceedings reflected that on 24.01.2020, SI Vikrant Tomar along with team members had gone to the office of A-1. On reaching there, complainant along with independent witness Nitin Kumar, reached in the office A-1, where certain conversation took place between complainant and A-1. They are mentioned below :-
A-1 Jo tene karan hai kar de Compl Batauge to sahi A-1 Tereko bataya hai maine, aur tu apane hisab se bata de, aur tu
apne hisab se bata de, main aur suitable bitha dunga, main suitable bata dunga, haan ji yeh peshkash kari hai, batau to approval kar de Compl 10 main ho jayega, 10, kara lo kuch kam batti, kitten take main ho jayega A-1 meri maan to raha hai nahi, tu 15 ek de diyo, main tek ke de dunga, main tek ke dekhta houn uske hath main Compl wo na mane isse kam A-1 kaun, main keh to raha houn, main de ke dekh lunga Compl acha A-1 15 uske hath main de dunga ki yeh diya haiun usne, dekh lo CBI Case No.43/2020 Page 121 of 187 CBI vs. Kapil & Anr.
A-1 aaj le bhi lete hain na teri joining kal ke dikha dunga
Compl Acha
A-1 baat yeh hai
Compl Acha
A-1 teri joining pahle ki dikha dunga wo mere hath main hai
Compl theek hai, 4 din hogaye diye hue abhi tak inhone kiya nahi
paison ke chakkar main
A-1 tu 20, 20 main se tu baad main de diyo wapis, main tere kahne
se kar raha houn, wohi pakad lega, ye hai
Compl acha, last date main yeh kam he wo karte hain na
A-1 maal le aa
Compl kal milun usse, parson ya leke he ayoun, leke aaun
A-1 mujhe uski tension na do, main usi date pe karwa dunga
Compl theek hai.....
Compl satha sath unko le ke ayounga bat to karenge samne
A-1 koi dikkat nahi
Compl aur kay, matlab 3 baje baad nahi milte pahle
61.9 Above mentioned conversation between complainant and
A-1 indicated that complainant was talking to A-1. Said conversation further indicated that complainant was asking A-1, if his work would be done for "10". A-1, on the other hand, was asking complainant to CBI Case No.43/2020 Page 122 of 187 CBI vs. Kapil & Anr.
give, "15". The conversation also reflected A-1 telling complainant that A-1 would show joining of complainant on the next day and also, that he could show the joining of complainant in earlier date as it was within the hands of A-1. It also reflected, A-1 telling complainant "Maal le aa".
61.10 Above mentioned conversation only probabilized the facts viz., that A-1 was demanding bribe amount; that "10", "15" and "20" have to be construed as Rs.10,000/-, Rs.15,000/- & Rs.20,000/- respectively; that A-1 projected to complainant that he had power to mention the desired date of joining of complainant and that A-1 not isolating himself from the conversation. The said conversation, nowhere talked about any loan amount, being given by SI Rajender Sharma to complainant or complainant asking A-1 to request SI Rajender Sharma to waive off the interest amount. Testimonies of prosecution witnesses revealed that expressions "10", "15" and "20" had to be construed as Rs.10,000/-, Rs.15,000/ & Rs.20,000/-. Apart from said conclusions, nothing else can be concluded, with respect to said numbers.
61.11 Aforesaid audio conversations were recorded in SD card, fixed in a DVR. Same were kept in a plastic cover and were marked as Q-1 in CO-05/2020. There is no evidence or probability of said DVR and SD card, being tampered with by anybody till the time, they were brought on record. PW3, who was the complainant himself, CBI Case No.43/2020 Page 123 of 187 CBI vs. Kapil & Anr.
identified the introductory voice of independent witness Nitin in said SD card, which was recorded in audio file no.200124_1437. The transcript of the said introductory voice was compared with the said audio voice and on comparison, both were found matching. PW3 identified the transcript of said voice of Nitin as Ex.PW3/3. Besides that, there was another audio file in the said SD card which was 200124_1530. That file was played in the Court and PW3 identified his own voice and that of A-1. The transcript of the conversation between complainant and A-1 was compared with the said audio voice and on comparison, both were found matching.
61.12 Based on oral testimony of PW3, as noted above, I find that A-1 had conversation with complainant on 24.01.2020, in the manner, noted above. That conversation only proved the fact that A-1 was demanding bribe amount of Rs.20,000/- from complainant, in lieu of giving posting to complainant. Based on said appreciation and conclusion, CBI rightly registered case against A-1.
61.13 This brings me to the audio recordings of conversation, recorded on 25.01.2020. It was the said day when trap was laid by CBI to arrest A-1, red handed.
61.14 On 25.01.2020, trap team of CBI left CBI office for going to the office of A-1. After reaching the office of A-1, one DVR containing fresh SD card was put with complainant in 'switched on' CBI Case No.43/2020 Page 124 of 187 CBI vs. Kapil & Anr.
mode and he was asked to meet A-1. Complainant met A-1 and SI Rajender Sharma on that day. His conversations with A-1 and SI Rajender Sharma were recorded in SD card, fixed in a DVR which was put in a sealed envelope, Ex.Q-2 after conclusion of proceedings. The SD card was produced in the Court and it was played. Said SD card was found containing six audio files. PW3 identified the voices of concerned persons in said audio files. Details of the same are mentioned below, in tabular form:-
(i) 2001125_1226 PW3 identified the voice of independent witness Nitin Kumar in said audio file.
The transcript of the audio recording was exhibited as Ex.PW3/8.
(ii) 2001125_1230 PW3 identified the voice of independent witness Naveen Bhardwaj in said audio file. The transcript of the audio recording was exhibited as Ex.PW3/9.
(iii) 2001125_1358 PW3 identified the voices of SI Rajender Sharma and PW3 himself in said audio file.The transcript of the audio recording was exhibited as Ex.PW3/10.
(iv) 2001125_1416 It was not played in the Court.
(v) 2001125_1417 PW3 identified the voices of A-1, A-2, ASI Rameshwar and PW3 himself in said audio file. The transcript of the audio recording was exhibited as Ex.PW3/11.
CBI Case No.43/2020 Page 125 of 187(vi) 2001125_1528 PW3 identified the voices of A-1 and PW3 himself in said audio file. The transcript of the audio recording was exhibited as Ex.PW3/13.
61.15 Transcripts of said audio files were compared with the audio recordings and they were found matching. So, contents of transcripts matched the audio recordings, mentioned above.
61.16 In the said transcripts, I am referring to some of them, which are relevant for adjudication of this case, in verbatim, below :-
(Complainant talking to SI Rajender Sharma, on 25.01.2020) .....Compl Hanji.....Bauji keh rahe the, kuch sewa chahiye apko, woh kar dete SI Rajender Sharma Sewa karni hai to, uske sath karo....
.....Compl Unhone kaha, Rajender bauji ne kaha, 20000 rupay de do mere ko....
SI Rajender Sharma Mere ko nahi pata, usse baat kar Compl Woh to aap hi ka naam le rahe the SI Rajender Sharma Mere paas post nahi hai, jab post hogi to hum laga denge, woh daroga se pucho.....CBI Case No.43/2020 Page 126 of 187
CBI vs. Kapil & Anr.
(Complainant talking to A-1, on 25.01.2020) A-1 Main tere kal samjhaya tha, chaar aadmi ke saamne tu kehne lag raha hai.......
Compl Post hi to kaha hai -
A-1 Bahut sayana ban raha hai, kuch bharosa nahi rakh raha
Compl Main to apko dekhne aa raha ki gadi khadi hai ki nahi
A-1 Woh to gussa kar rahe hai, ki main nahi join karunga, isko
apne kisi aur Ward me join kar lega
Compl To bauji ko pata nahi ki kya ho gaya, dekhte hi gussa kha
rahe hai woh
A-1 Tune yeh kya keh diya unko
Compl Maine kya kuch bhi nahi kaha unko.....
A-1 Tere ko samjhaya nahi tha maine
(Complainant talking to A-1 around 4.55 PM on 25.01.2020) A-1 Ha bhai, kya kahani hai teri, tu jada samajhdar ban raha hai, to tu neu bata de, main jada samajhdar ban raha hu Compl Meri kya baat ho gayi A-1 Matlab koi baat nahi hui, ab jab tere ko kal baith ke paath padha diya, tu phir bhi nahi samajh raha, iss cheez ko, koi kahega apne muh te......... yeh seedha jake unse baat kar raha hai..... deal kar raha hai ussi se....CBI Case No.43/2020 Page 127 of 187
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(A-1 talking to ASI Rameshwar (PW7) & Complainant) .....A-1 Tere ko kal samjha bhi diya maine kaha bhai, iss type ka aadmi na hai woh, woh mere se kahega, tere se nahi kahega....
Rameshwar Inse kaha ke, kya matlab (PW7) A-1 Phir Rameshwar Kahega tumse, tumse join karana hai, kar lo (PW7) .....A-1 Woh to aise keh raha hai ki mere pe kya keh raha hai yeh
aake - chaar aadmiyo ke aage paise yun keh raha - paise maang rahe ho mere se...
Compl Main to yun hi kahi thi ke bauji to ek baar keh rahe the, mil lena.......
Rameshwar Kaun hai.....
(PW7)
A-1 Khatam kar do na matter
Rameshwar Hamare yaha post nahi hai.......kuch bhi likh sakta hai,
(PW7)
woh unki headache hai, kya likhega bhai
Compl Jo maang raha hai, de to rahe hai
A-1 Tu to puch raha hai bhai, kaha de raha hai
Rameshwar Ki aap maang rahe ho
(PW7)
Compl Pata nahi kya keh rahe, maang rahe ho
A-1 Aur kya, usne kahi hai, chaar aadmiyo ke beech me keh
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raha hai, iste maine yun bhi keh diya ki tere late ho raha to pehle ki joining dikha dunga, phir bhi sayana ban raha hai, Inspector ke paas ja raha hai. Compl Bauji, maine parso bhi aapse kaha tha ki aap bauji ke sath chale jana, ki theek main sath chal dunga A-1 Teri phir kaise himmat ho gayi, Inspector se kehne ki phir, yun bata mujhe tu - teri kaise himmat ho gayi, paiso ke baare me, kehne ki .....A-1 De dunga bhai abhi letter, Dhan Singh ke paas hai A-1 Jo batane ki nahi thi, woh bhi bata di maine isko baat
- main kaha ki yeh aise character ka aadmi hai, yeh tere se direct nahi bolte, phir bhi nahi samajh me aaya isko, kal tere samne phone maara, maine nahi maara.
Compl Main kya shaan patti dikhai hai A-1 Inspector se kyu mila..... A-1 Ki main waha khada tha.....chaar aadmi ke peeche, mere
se nu keh raha hai, ki nu kar lo - nu kar lo - main kahi ki mujhe pata hi nahi hai, kya matter hua, kya nahi hua, tune mera naam kaise liya, ki main le raha hu A-1 Yeh hota hi hai - aur ek bata de - Inspector deta hai -
deal kaun karta hai - yeh bata de mujhe
Compl Aap karte ho -
A-1 Hum hi karte hai na - ki paise kaun deta hai - Inspector
deta hai kabhi - Inspector hamare se chodh dega -CBI Case No.43/2020 Page 129 of 187
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hamare se leta hai Inspector - tumhare se kisi te nahi leta......
A-1 Pakad usko Dhan Singh ko.....
A-2 .....aur bhi paise lagenge, yeh.....
Compl Ha toh phir, toh seedhe uski ko do na - nu keh aap chal
rahe ho, Inspector ke paas chal rahe ho
A-2 Nu keh ke de raha hai, usko le le
Compl 15000 rupay de raha hu.....
A-2 15
Compl Haan.....dunga
A-2 Dono ke hi hai
Compl Haan
A-2 Matlab yaha ke aur waha ke, dono ke hi hai.... Phir ke
karu, abhi 15 bol du.....
Compl Haan, 15 bol do
(A-2 calling Complainant)
A-2 Hello - Sir 15 - hai - phir bhi dekh lete - chal to
rehan do - theek hai, pata hai na usko - haan, 15 hi to bol raha hai - theek - theek - theek hai Compl Kya keh rahe hai -
A-2 Nu kahe ki 5 aur lega
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Compl Kal to keh raha tha ki 15 de do
A-2 .....20 hazaar
Compl To main to 15 hi le aaya hu
A-2 Woh to yeh keh raha hai - 20 lunga... 20 le raha hai na
Compl Mere paas to 15 hi hai
A-2 To 20 hi keh raha, woh to
Compl Chalo to sahi, 15 to do usko
A-2 15 nu bola hai, na manega woh - phone to aaya abhi
uska
Compl Kya keh raha
A-2 Nu keh raha, 15 me na manega - pure 20 lega
Compl 15 deke dekh lena - baat to karo - usse
A-2 Baat hi hogi
(Complainant walking towards CBI team)
A-1 Bhai Sharma ji hai naaraz
Compl Aacha, lo aap unko yeh to de do - bolo, main 20 unko kar
dunga - somwar ko
A-1 Kal baat karunga
Compl Somwar ko kar dunga baki paise
A-1 Kal woh hari jhandi dega, tabhi lunga na main
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Compl Kya keh rahe ho ab yeh
A-1 Woh baat hi nahi kar raha unse yaar - maine tere ko kaha
to tha
Compl Maine kya galti kari - maine to usse pucha hi tha - main
to -
A-1 Kamaal kar raha hai tu - galti nahi maan raha tu - chal
kal aao - kal karenge
61.17 Above mentioned conversation between complainant,
accused persons, Rameshwar and SI Rajender Sharma, indicated following facts :-
that SI Rajender Sharma, nowhere demanded any money from complainant and he never asked complainant to give any bribe to A-1;
that Rameshwar also nowhere demanded any bribe from complainant;
that A-1 was talking to complainant, thereby demanding bribe amount;
that A-1 was annoyed as complainant had directly met SI Rajender Sharma;
that A-1 had belief that A-2 will convince complainant to pay bribe amount and that is why he asked A-2 to talk to complainant;CBI Case No.43/2020 Page 132 of 187
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that A-2 was interested in complying with directions of A-1 and A-2 infact did his best to convince complainant to pay bribe amount to A-1;
that A-2 informed A-1 about his conversation with complainant and obtained response of A-1, over phone which indicated that A-1 & A-2 were sailing in the same boat, having common objective of receiving bribe amount from complainant;
61.18 Finally, trap proceedings were again conducted on 28.01.2020 when complainant went to the office of A-1, where he met A-1 & A-2. Their conversations were recorded in SD card, fixed in a DVR. Relevant transcripts of said conversation, which were also identified by complainant in his testimony, are mentioned in verbatim below :-
Compl Aree Dhan Singh ji
A-2 Haan
Compl Kal apka phone aaya tha - kapil sir se milne ke liye - aaj
mila doge kya -
A-2 Milne ke liye aaoge
Compl Haan
A-2 Aaja, keh de, khade hai yahi
Compl Abhi aaunga main ded-do baje ke aas-paas
A-2 Ded-do baje
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Compl Haan
A-2 Theek
(6.20 onwards)
Compl Kal phone aaya tha uska
A-1 Kal - woh to aaj kaha hai duty ke liye.....
Compl Aacha, mere kaam ke liye.....
A-1 Ek baar Inspector se mil le
Compl Chalo..... mil lete aap bhi mil lete sath me.....
A-1 Baat karu
Compl Haan
A-1 To wait kar tu - helmet de jaldi
61.19 Above mentioned conversation, indicated following
facts:-
that A-1 did not dispute the fact that complainant had
received a call, one day prior to 28.01.2020 for meeting A-1 in the office;
that A-1 knew the work which complainant was requesting;
CBI Case No.43/2020 Page 134 of 187 that A-1 was hesitant, in talking to the concerned regarding the work of complainant and that is why, he asked complainant, "baat karu".
61.20 The above mentioned conversation indicated presence of above mentioned possibilities only. If A-1 wanted to mediate between complainant and SI Rajender Sharma with regard to alleged loan transaction, then why was he hesitant? Surprisingly, in all the conversations, he had with complainant, he did not specify as to how he wanted to settle alleged loan transaction between complainant and SI Rajender Sharma. A-1 never explained as to what SI Rajender Sharma wanted. He did not ask complainant as to what was the proposal of complainant for settling alleged loan transaction with SI Rajender Sharma. So, the whole defence of A-1 based on his claim that he was mediating the issue of loan transaction, between complainant and SI Rajender Sharma, remained a farce. I did not believe the said defence to be probable.
61.21 Besides that, I find that A-1 and A-2 never tried to isolate themselves from the conversation with complainant, which was based on bribe amount of Rs.20,000/-. Their conversation with complainant indicated that they were hiding something. If everything was legal, then why both accused persons were trying to convince complainant to pay Rs.20,000/-. If there was nothing illegal, then why A-1 was CBI Case No.43/2020 Page 135 of 187 CBI vs. Kapil & Anr.
annoyed when complainant met SI Rajender Sharma directly? Why A-1 or A-2 never expressly said to complainant that they will ask SI Rajender Sharma to waive off the interest amount? Why A-1 used the expression, "Deal", while talking to complainant? Why A-1 was interested in forging documents with regard to joining date of complainant? All the said questions remained unanswered during trial. Accused persons should have answered them by cross- examining prosecution witnesses or by giving explanations in their Statements under Section 313 CrPC or in their defence by examining themselves. They failed on all the said occasions, much to their loss. As such, absence of answers to said questions, only probabilized the allegations of complainant. The behaviour of accused persons, in the wake of above mentioned conversation, remained dubious. It never gave the impression of a behaviour of a bonafide and truthful person, placed in their situation. This conclusion, did not help the cause of accused persons.
61.22 Further, I find that complainant, who was examined as PW3 by prosecution, in his testimony deposed that audio recordings were recorded in fresh DVRs and SD cards. The DVRs were switched on and switched off, by CBI officer, at the relevant time, when verification proceedings and trap proceedings were conducted. He categorically deposed that SD cards were sealed after recordings by CBI. In his presence, the envelopes containing those SD cards viz., Ex.PW3/5, Ex.PW3/12 and Ex.PW3/16 were opened. Those CBI Case No.43/2020 Page 136 of 187 CBI vs. Kapil & Anr.
envelopes were in sealed condition, when they were opened in the Court. Accused persons failed to give any suggestion, regarding those envelopes or SD cards, being tampered, by anybody, prior to them being produced in the Court. The transcripts of the conversations were found matching with the audio recordings.
61.23 Besides that, I find that PW13 Sh. Amitosh, who was the expert from CFSL, had testified that he had received the exhibits for examination, in sealed parcels, marked as Q-1, Q-2 & Q-3, S-1, S-2, S-3 & S-4 in DVR in RC 03(A)/2020 and DVR used for specimen voice in RC 03(A)/2020. After receiving said sealed parcels, he opened them and had found SD cards Ex.Q-1 to Q-3 and Ex.S-1 to S-4. Ex.Q-1 to Q-3 contained audio files of the conversations, recorded during verification and trap proceedings in this case. Ex.S-1 to S-4 contained audio files of specimen voices of complainant, SI Rajender Sharma and accused persons. After doing necessary examination, he had prepared report Ex.PW13/1 (colly). The said envelopes were again re-sealed by him with his official seal and had returned the same, back to CBI. In his presence, in the Court, the envelopes, containing DVRs and SD cards having conversations and specimen voices were opened, when his testimony was recorded. He identified the DVRs and the envelopes along with SD cards, when they were taken out from the said sealed envelopes. He identified the seals of his office as 'AA' on the said envelopes and his own signatures at point Y. CBI Case No.43/2020 Page 137 of 187 CBI vs. Kapil & Anr.
61.24 The Investigating Officers also deposed on the same lines, as were the depositions of PW3 and PW13, regarding recording of conversations, specimen voices and sealing of the said electronic record.
61.25 So, at no stage, I found that there was any tampering with said electronic record or its sealing, being done by somebody. Said electronic record contained conversations/ voices, which were properly recorded and thereafter sealed. They were kept properly by CBI, prior to bringing to Court. As such, I found said electronic record to be proper and complete, bereft of any tampering.
61.26 Above mentioned audio recordings were played in the Court. Complainant and other prosecution witnesses concerned who had participated the proceedings when said audio recordings were recorded, identified their respective signatures on the transcripts, which were prepared during investigation. Complainant identified his own voice and that of concerned persons, including accused persons in said audio recordings when played in the Court. The audio recordings were compared with the transcripts, during investigation and during trial. They were found matching.
61.27 The net result is that evidence, based on audio recordings, is found by me to be trustworthy and reliable. Its CBI Case No.43/2020 Page 138 of 187 CBI vs. Kapil & Anr.
appreciation and conclusion, based on it, only supported prosecution version.
APPRECIATION OF CFSL REPORT
62. Prosecution also relied upon CFSL Report Ex.PW13/1. The said report was based on the comparison of specimen voices of Rameshwar, SI Rajender Sharma and accused persons with their voices which were recorded on 24.01.2020, 25.01.2020 & 28.01.2020. The specimen voice of Rameshwar was recorded vide memo Ex.PW6/1. The specimen voice of SI Rajender Sharma was recorded vide memo Ex.PW6/2. The specimen voice of A-2 was recorded vide memo Ex.PW6/3. The specimen voice of A-1 was recorded vide memo Ex.PW6/4. PW6 - Rajan Kumar, in whose presence those specimen voices were recorded by SI Sumit Kumar, had identified his signatures at point A, mentioned in those memos. PW6 was an independent witness, who was posted as Junior Assistant in the Office of RCS. He testified that brass seal, which was used for sealing the said memos, was carried by him, after it was used in the said proceedings. He identified his voice and that of the persons which were recorded by CBI through said memos when SD cards, containing those audio files were played in the Court. I have already appreciated the testimony of PW6 in preceding paragraphs, which needs no repetition. Suffice it is, to conclude that recordings of CBI Case No.43/2020 Page 139 of 187 CBI vs. Kapil & Anr.
specimen voices by CBI during investigation vide aforesaid memos, were correctly done.
62.1 Those specimen voices, recorded in SD cards viz., S-1 in RC-3(A)/2020, S-2 in RC-3(A)/2020, S-3 in RC-3(A)/2020 and S-4 in RC-3(A)/2020 along with SD cards, containing conversations between complainant, accused persons, Rameshwar Dayal and SI Rajender Sharma, recorded during verification and trap proceedings viz., Q-1 in CO-05/2020, Q-2 in RC-3(A)/2020 and Q-3 in RC-3(A)/2020 were sent to CFSL by CBI vide letter Ex.PW12/3. That letter noted that said exhibits were sent in sealed manner, for analysis. It also requested CFSL, to compare the voices of persons, recorded in SD cards during investigation, with their specimen voices.
62.2 The CFSL Report, noted that voices of accused persons, Rameshwar and SI Rajender Sharma, recorded during investigation, matched with their specimen voices. Details of the same, in tabular form, are mentioned below:-
S.No. Specimen Name of the Result of CFSL Remarks Voice person
1. S-1 Rameshwar S-1 was compared with Mentioned the questioned voice in para 8 of marked as Q-2 and the opinion matches the same at page 12 CBI Case No.43/2020 Page 140 of 187 CBI vs. Kapil & Anr.
2. S-2 Rajender S-2 was compared with Mentioned Sharma the questioned voice in para 8 of marked as Q-2 and the opinion matches the same at page 12
3. S-3 Accused S-3 was compared with Mentioned Dhan Singh the questioned voices in para 8 of marked as Q-2 & 3 and the opinion matches the same at page 12
4. S-4 Accused S-4 was compared with Mentioned Kapil the questioned voices in para 8 of marked as Q-2 & 3 and the opinion matches the same at page 12 62.3 So, based on said report, from CFSL, it was proved that voices of above mentioned persons, were recorded by CBI during investigation. It only supported the case of prosecution.
62.4 The report Ex.PW13/1, was proved by PW13, Amitosh Kumar, who had prepared the same. He identified his signature on the said report at point A. He was an expert, competent to prepare said report. I have already appreciated his testimony and have concluded that he was a trustworthy witness.
62.5 Nothing was culled out by accused persons, by cross-
examining PW13 which could have indicated that exhibits, he had resealed, were tampered in any manner. This witness refuted the suggestion of him deposing falsely. He explained the details of said report, in his testimony. He refuted the suggestion that auditory CBI Case No.43/2020 Page 141 of 187 CBI vs. Kapil & Anr.
analysis of voice samples is based on short term memory process and depends purely on a practitioner's personal capability of auditory perception and understanding of articulatory and acoustic phonetics. He explained that he had used Speech Science Lab software for segregating the words, used for analyzing the words from exhibit Q-1 for A-1. He testified that he had no knowledge of the case, prior to analysis of exhibits, which indicated that he was not a tutored witness.
62.6 So, PW13, duly proved the report Ex.PW13/1. Through the testimony of PW13, as such, accused persons failed to create any doubt over said report. The report, as such, cannot be doubted, as it was prepared by a government servant and there is a presumption of correctness of said report, as per law of evidence. The said presumption was not rebutted by accused persons by cross-examining PW13.
62.7 The net result is that CFSL Report Ex.PW13/1 was duly proved by prosecution. The report is based on scientific analysis by an expert. Exhibits to CFSL by CBI were received by CFSL in sealed condition. The contents of the audio recordings, matched with the transcripts, which are placed on record by prosecution. As such, no doubt can be raised against said report. I find the said report to be correct, based on scientific analysis, being prepared by PW13. Aforesaid conclusion only supported prosecution version.
CBI Case No.43/2020 Page 142 of 187LAW RELATING TO STATEMENT OF ACCUSED UNDER SECTION 313 CRPC
63. Before appreciating statement of accused persons, I must mention here, relevant law, pertaining to interpretation of such statements of accused persons.
63.1 Object of statement under Section 313 CrPC is to put all incriminating evidence to accused to afford him an opportunity to explain as to why they cannot be taken against him and to ask him as to what he has to say about it. At the same time, also to permit him to put forward his own version or reasons, if he choses in relation to his involvement or otherwise, in the crime. This is the statement which accused makes without fear or right of other party to cross-examine him. If statement made is/ are false, then Court in entitled to draw adverse inferences and pass consequential orders, as may be called for, in accordance with law. The purpose is to have a direct dialogue between Court and the accused. Once such statement is recorded, the next question is to what extent and consequences such statement can be used during trial and enquiry. That statement can be used to test the veracity of the exculpatory of the admission, made by the accused. It can be taken into consideration, in enquiry or trial, but strictly, it is not an evidence in the case. It has to be used in conjunction with evidence adduced by accused. Reliance in this regard is placed on case laws; Hate Singh Bhagat Singh vs. State of MP AIR 1953 CBI Case No.43/2020 Page 143 of 187 CBI vs. Kapil & Anr.
SC 468 and Ajay Singh vs. State of Maharashtra (2007) 12 SCC
341. 63.2 Further, when the attention of the accused is drawn to such circumstances that inculpate him in relation to the commission of crime and he fails to offer an appropriate explanation or gives a false answer with respect to the same, the said act may be counted as providing a missing link for completing the chain of circumstances. Reliance in this regard is placed on case law titled as State of Maharashtra vs. Suresh (2000) 1 SCC 471.
63.3 So, in the wake of above mentioned case laws, it is clear that statement of accused persons under Section 313 CrPC, recorded by the Court, has to be appreciated in conjunction with the evidence, brought on record by accused. In case, the responses of accused persons are found to be false or inappropriate, then, it may be treated as missing link in completing the prosecution story.
63.4 Keeping in mind said understanding of law, I am proceeding further with appreciation of statement of accused persons.
CBI Case No.43/2020 Page 144 of 187APPRECIATION OF STATEMENT OF A-1 UNDER SECTION 313 CRPC
64. In response to incriminating evidence, put to A-1, he replied by denying the case of prosecution. He claimed that he along with complainant were in same MCD Ward and used to communicate for official purposes. That claim indicated that he admitted his employment and that of complainant in the same MCD Ward. It also indicated that he was acquainted with complainant. Further, his claim that he used to have communication with complainant for official purposes, was not explained by him in detail. It was a material omission on his part as complainant had categorically alleged in his testimony that A-1 had demanded bribe from complainant. Infact, no suggestion was given by A-1 to complainant, while cross-examining complainant, to the effect that they used to exchange, "communication for official purposes". So, said explanation is not believed by me to be trustworthy.
64.1 A-1 claimed that some relevant calls in CDRs were not marked by prosecution but did not specify details of said calls. He evasively answered by claiming that he cannot say anything about the correctness of CDR of his mobile phone no.9654397973. Said evasive responses were not believable and they did not help the cause of A-1.
CBI Case No.43/2020 Page 145 of 18764.2 A-1 stated in response to incriminating evidence, put to him that recordings collected by CBI during investigation were recorded on a phone and not in a DVR. He evasively answered by stating that he cannot say as to whether conversation in the recordings, placed on record, had actually happened on the date, mentioned therein or on some other day. He claimed that all the proceedings were fabricated and all the witnesses had deposed falsely against him. He claimed that transcripts and recordings were manipulated. With respect to CDR/ CAF record and with regard to audio recordings, he either stated that he did not know about them or claimed those records as false. As such, he did not explain the reason as to why CBI would file false case against him. He did not explain the extent of manipulations, done by CBI in the records. His evasive manner of answering the questions also did not help his cause. He failed to explain as to why prosecution witnesses deposed against him. Therefore, A-1 failed to give probable and reasonable explanation to the incriminating evidence, which was put to him, for seeking his response. His Statement under Section 313 CrPC, therefore, did not help his cause.
64.3 A-1 had led defence evidence by examining DW1 & DW2. Those defence witnesses, placed on record attendance register of the relevant period, when verification and trap proceedings in this case, had taken place. Those attendance registers reflected attendance of complainant and PW - Rameshwar Dayal in the office. Now, A-1, CBI Case No.43/2020 Page 146 of 187 CBI vs. Kapil & Anr.
in his statement under Section 313 CrPC, had claimed that as per the attendance sheet of complainant, complainant was present on duty at all times and he could not have been simultaneously present at two places, 20 kms apart, at the same time. While, replying so, complainant did not specify, as to which period specifically, he was referring, with regard to the attendance sheet of complainant. He did not say that complainant could not have moved out of the office with the permission of higher-ups, for joining investigation in this case. Besides that, he did not depose anything about the presence of PW - Rameshwar Dayal with CBI team, during investigation of this matter. So, by not referring to those facts, his statement, remained incomplete and it did not help his cause.
64.4 A-1, answered question no.280, in his statement under Section 313 CrPC, in detail. Some relevant excerpts from the said reply, is mentioned here, in verbatim as, "as far as, money is concerned, that the same was to be handed over to SI Rajender Sharma. It is also clear that the reduction in amount was also to be allowed/ disallowed by him. He has not even been named a witness in this case.....". The said response clearly indicated that A-1 admitted the factum of money transaction, which was involved in present case. The said response negated the theory of A-1 communicating with complainant with respect to ordinary office related issues. Now, as per A-1, based on his defence, put to prosecution witnesses, money was taken by complainant as loan from CBI Case No.43/2020 Page 147 of 187 CBI vs. Kapil & Anr.
SI Rajender Sharma and that money had to be returned by the complainant to SI Rajender Sharma with interest. That was the precise defence of A-1. Since, prosecution witnesses did not admit the said defence, put to them, by way of suggestion, so it was incumbent upon A-1 to have led defence evidence, in support thereof. Before leading defence evidence, A-1, in his statement under Section 313 CrPC, should have given detailed response, pertaining to said loan transaction between complainant and SI Rajender Sharma. He should have explained as to how, he came to know about said loan transaction and why it was not specifically mentioned in all the communications between him and the complainant, recorded in this case. He should have explained, as to how, he got the authority, to mediate between complainant and SI Rajender Sharma, regarding the said matter. He failed, on all accounts. He did not answer and explain any of the above mentioned aspects. Therefore, his said explanations, given in his statement under Section 313 CrPC, were not probable and believable.
64.5 A-1 did not explain, in his statement, as to why, prosecution witnesses had deposed falsely against him, though, he had claimed that those witnesses had deposed falsely against him. Further, he answered that important documents were destroyed / removed from the case file and entire case was based on false and manipulated evidence. While answering so, he failed to give details of the documents, which were destroyed/ removed from the case file. He CBI Case No.43/2020 Page 148 of 187 CBI vs. Kapil & Anr.
failed to explain as to how, evidence was manipulated by prosecution against him.
64.6 So, based on aforesaid appreciation, I find that statement of A-1 under Section 313 CrPC, did not help his cause.
APPRECIATION OF STATEMENT OF A-2 UNDER SECTION 313 CRPC
65. So far as A-2 is concerned, majorly, he also gave response, based on denial and on the basis of want of knowledge, to the incriminating evidence, put to him. He claimed that he was falsely implicated in this case on the behest of IO and his conversations with complainant were misrepresented in this case.
65.1 As such, A-2 did not explain as to what interest IO had against him, for falsely implicating him in this case. A-2 did not specify the name of exact IO who had falsely implicated him which did not make his explanation probable and reasonable. Coupled with the same, A-2 did not explain as to how his conversations with complainant were "misrepresented" in this case?. Failure on his part to explain said relevant aspects did not make his defence probable.
65.2 Besides that, I find that A-2 had led defence evidence, in the shape of DW1 & DW2. The shortcomings in the statement of A-1 CBI Case No.43/2020 Page 149 of 187 CBI vs. Kapil & Anr.
with respect to DW1 & DW2 are already highlighted by me, in my preceding paragraphs. Since, A-2 had relied upon the same defence evidence, so, said shortcomings were applicable to the statement of A-2 also.
65.3 Surprisingly, A-2 did not give a detailed reply, just like A-1 had given, when A-2 was asked as to why this case was filed against him. He only answered the said question by stating that he was falsely implicated in this case on the behest of IO and his conversations with the complainant were misrepresented. Why he was falsely implicated and how his conversations with complainant were misrepresented, were never explained/ answered by him. It made the said claims of A-2, baseless.
65.4 Further, in response to Que No.7, 8 & 280, which were put to A-1 under Section 313 CrPC, A-1 replied that complainant had approached him, so that, he can sort out the financial dispute between complainant and SI Rajender Sharma. Complainant wanted that SI Rajender Sharma should reduce the interest amount, on the loan, which SI Rajender Sharma had given to complainant. He denied that he ever spoke to SI Rajender Sharma about the due amount to be paid by the complainant. He tried to settle the said dispute between complainant and SI Rajender Sharma and therefore, had discussions with complainant, regarding which CBI has placed electronic record. Further, he explained that by commenting that complainant can do, CBI Case No.43/2020 Page 150 of 187 CBI vs. Kapil & Anr.
whatever complainant pleases, did not mean that complainant had to pay something, rather it meant that complainant can distribute sweets or give party, in view of complainant becoming a permanent employee. He also claimed that there was a misunderstanding between SI Rajender Sharma and complainant on the quantum of amount. As per him, various witnesses knew about the financial transactions between complainant and SI Rajender Sharma. Lastly, he claimed that original complaint of complainant was destroyed and friend of complainant namely Virender Singh was not brought as a witness by CBI. Both the said aspects, as per A-2, also created doubt regarding the veracity of prosecution version.
65.5 Above mentioned explanation of A-1 was vague in nature. It did not meet out questions viz., What were the terms & conditions of financial transactions between SI Rajender Sharma and complainant? Why complainant approached A-1 only leaving aside other staff in the department to settle the dispute of financial transaction with SI Rajender Sharma? Why complainant who had taken alleged loan from SI Rajender Sharma, directly did not approach him for settling the dispute by going directly to him? Which all witnesses knew about the said financial transactions between complainant and SI Rajender Sharma? In what capacity and for what reason, A-1 tried to settle the dispute between complainant and SI Rajender Sharma? Why A-1 did not use the expression of "loan" and "interest" while communicating with complainant? Why A-1 asked CBI Case No.43/2020 Page 151 of 187 CBI vs. Kapil & Anr.
A-2 to talk to complainant? Why A-1 did not examine Virender Singh, if he was a relevant witness? Why the aspect of complainant, distributing sweets on account of him becoming a permanent employee, as was explained by A-2, was not put to complainant, during trial when complainant was cross-examined by him?
65.6 Absence of answers with respect to said aspects did not make the defence of A-1, as noted above, probable. So, aspects with regard to SI Rajender Sharma, argued by A-1, stands dismissed as they are not relevant.
65.7 Based on the appreciation of prosecution witnesses, I find that neither, IO had any false motive to implicate A-2, falsely in this case nor conversations of A-2 with complainant were misrepresented. The conversations were clear and no other colour can be given to those conversations, except that A-2 demanded bribe amount from complainant, with the consent and agreement of A-1. Therefore, Statement of A-2 under Section 313 CrPC, did not help his cause.
APPRECIATION OF DEFENCE EVIDENCE
66. Accused persons examined two witnesses, in their defence.
CBI Case No.43/2020 Page 152 of 18766.1 DW1 - Pooran Chand was an official witness, who had brought summoned record viz., Attendance Register of SDMC for the period from 16.10.2019 to 16.01.2020, pertaining to Ward No.03(S), Raja Garden. The copy of relevant pages i.e. attendance for the period 16.12.2019 to 15.01.2020 and 16.01.2020 to 15.02.2020 were exhibited as Ex.DW1/1 (colly) & Ex.DW1/2 (colly) respectively.
66.2 DW2 - Virender Singh was another official witness who had brought summoned record viz., Attendance Register of Rameshwar Dayal, Assistant Sanitary Inspector, Ward No.03(S), DEMS, SDMC, Raja Garden, Delhi, for the month of October 2020, specifically for the dates 07.10.2020 to 10.10.2020. Copy of relevant pages was exhibited as Ex.DW2/1.
66.3 Accused persons should have explained in their defence, as to why they had examined aforesaid witnesses in their defence. They should have examined themselves for giving said explanation. It was necessary as said explanation would have helped me in appreciating the above mentioned records. Since, it was not done by accused persons, so said record, produced by DW1 & DW2 lacked probative and reasonability value.
66.4 It was only during course of arguments, that Ld. Counsels for accused persons argued as to why they had examined said witnesses in the defence of accused persons.
CBI Case No.43/2020 Page 153 of 18766.5 So far as, DW1 is concerned, it was argued that attendance register record Ex.DW1/1 (colly) & Ex.DW1/2 (colly) reflected that from 16.12.2019 to 15.01.2020 and from 16.01.2020 to 15.02.2020, respectively, complainant was present in his office in Ward No.03 (S), Raja Garden, Vishal Enclave. It was argued that it means that complainant had not gone to CBI office on 24.01.2020 or 25.01.2020 or 27.01.2020 or 28.01.2020, when CBI had conducted verification and trap proceedings.
66.6 With regard to DW2, it was argued that this witness had placed on record attendance register, pertaining to the attendance of Rameshwar Dayal, who was working as Assistant Sanitary Inspector, Ward No.03(S), DEMS, SDMC, Raja Garden, Delhi. The attendance record Ex.DW2/1, pertained to the period from 07.10.2020 to 10.10.2020. So, it was argued that said witness had not visited CBI office, during the said period. It means that his statement was not recorded by CBI under Section 161 CrPC on 10.08.2020 in CBI office.
66.7 Aforesaid arguments were not tenable. Reason being, that there remained possibility of above witnesses visiting CBI office, after marking their presence in attendance registers. As such, there was no evidence, to the effect that aforesaid witnesses i.e. complainant and Rameshwar Dayal, continued to remain in their respective offices, during whole time as per their attendance records.
CBI Case No.43/2020 Page 154 of 187Even otherwise, it was not suggested to complainant or Rameshwar Dayal, by accused persons when those witnesses were cross- examined, that they had not visited CBI office in view of the fact that their attendance records contradicted them. Therefore, said defence was not believed by me to be trustworthy. I discarded it accordingly.
APPRECIATION OF DEFENCE ARGUMENTS ON BEHALF OF A-1
67. Ld. counsel for A-1 argued various aspects, based on which, he sought acquittal of A-1. His arguments are put in specific headings, below, for the purpose of getting clarity :-
(a). Role of SI Rajender Sharma - Various aspects, with respect to role of SI Rajender Sharma, were highlighted by way of written and oral arguments by A-1. They were viz., that complainant had financial transactions with SI Rajender Sharma and those transactions were twisted, by CBI, in present case;
that conversations between the parties, which were recorded, were not complete;
that complaint of complainant was guided to achieve objective of threatening SI Rajender Sharma and it was not a genuine complaint;
CBI Case No.43/2020 Page 155 of 187 that the questioning with SI Rajender Sharma was not placed on record by CBI;
that departmental action against SI Rajender Sharma was not placed on record;
that SI Rajender Sharma was not examined by prosecution though he was a material witness;
that SI Rajender Sharma was not made an accused; that recommendation letter for enquiry of SI Rajender Sharma was not placed on record;
that circumstances in which SI Rajender Sharma was removed from being charge-sheeted, not explained by CBI; that CDR of SI Rajender Sharma was not placed on record.
67.1 All the above aspects were not relevant for the purpose of appreciating role of A-1 in this case. Even if it is believed that CBI had intentionally not implicated SI Rajender Sharma in this case, then also, evidence which CBI has placed on record, cannot be dismissed by me. The evidence which was collected by CBI, was relevant and that was what this Court had to appreciate. Evidence which was not brought on record by CBI, is not relevant, for the purpose of deciding the guilt of A-1.
CBI Case No.43/2020 Page 156 of 18767.2 If A-1 thought that SI Rajender Sharma was a material witness, then he could have examined him in his defence. He did not do so, for reasons best known to him.
67.3 Ingredients of offences with which A-1 was charged by this Court, have no legal connection with the non-implication of SI Rajender Sharma.
(b). Authority of A-1 - It was argued that A-1 had no authority to provide any posting to complainant. Same was known to complainant. As such, A-1 never used the word "bribe". It was complainant only who was attempting to handover money to A-1 which A-1 never accepted.
67.4 Above mentioned argument, again was not tenable. If A-1 had no authority to give posting to complainant, then why despite hearing the request of complainant regarding posting, he isolated himself from the said discussion. The transcripts mentioned in verification memo Ex.PW3/2, Ex.PW3/4, Ex.PW3/8, Ex.PW3/9 & Ex.PW3/10, only mentioned about the factum of complainant seeking his posting. Those transcripts which matched audio recordings and which were identified by PW3, nowhere mentioned that A-1 ever claimed that he cannot give any posting to complainant.
CBI Case No.43/2020 Page 157 of 18767.5 Further, non-usage of the expression, "bribe", did not save A-1. In his conversation with complainant, I find that expression "Sewa" was used. I also find that he had used the following expressions, as recorded in SD card in Q-1, CO05/2020;
Jo tene karan hai, kar de;
Meri maan to raha hai nahi, tu 15 ek de dio, main tek ke
de dunga;
15, uske hath me de dunga, ki yeh diye hai usne;
Aaj le bhi lete hai na teri joining kal ke dikha dunga;
Teri joining pehle ki dikha dunga, woh mere hath me hai;
Tu 20, 20 me se, tu baad me de dio wapas, main tere
kehne se kar raha hu;
Maal le aa.
67.6 I also find that A-1 had used following expressions, while
communicating with complainant on 25.01.2020:-
Matlab koi baat nahi hui, ab jab tere ko kal baith ke paath padha diya, tu phir bhi nahi samajh raha, iss cheez ko, koi kahega apne muh te......... yeh seedha jake unse baat kar raha hai..... deal kar raha hai ussi se....
Tu to puch raha hai bhai, kaha de raha hai
Jo batane ki nahi thi, woh bhi bata di maine isko baat -
main kaha ki yeh aise character ka aadmi hai, yeh tere se CBI Case No.43/2020 Page 158 of 187 CBI vs. Kapil & Anr.
direct nahi bolte, phir bhi nahi samajh me aaya isko, kal tere samne phone maara, maine nahi maara. Kal woh hari jhandi dega, tabhi lunga na main.
67.7 Above mentioned expressions, used by A-1 only indicated that he was talking about "bribe". No other interpretation can be given to said expressions, when considered, as a whole, in the light of conversations, placed on record.
(c). Hash Value not submitted to CFSL - Ld. Counsel for A-1 argued that prosecution failed to place on record hash value of the electronic evidence, collected during investigation. So, he challenged the veracity of audio recordings, collected by CBI during investigation.
67.8 In order to appreciate above noted argument, we must know, as to what is the significance of "Hash Value".
67.9 Based on literature, on the said subject, I find that hash value plays a significant role in deciding the authenticity and integrity of data/ evidence in the digital world. It is known as fingerprint of data which is a crucial factor for authenticating the integrity of data. It also plays important role in the validation of forensic processes and equipments, used for the forensic examination. Its admissibility has CBI Case No.43/2020 Page 159 of 187 CBI vs. Kapil & Anr.
increased, over the years, as it leads to a high degree of accuracy, for confirming, whether two records or files are a match or dissimilar.
67.10 Section 3 of Information Technology Act, 2000 (in short "IT Act") also supports the international accepted hash function as the unique and reliable method to authenticate the integrity of data, as emerging from the explanation of Section 3, which provides - for the purposes of this sub-section, "hash function" means an algorithm mapping or translation of one sequence of bits into another, generally smaller, set known as "hash result" such that an electronic record yields the same hash result every time the algorithm is executed with the same electronic record as its input making it computationally infeasible - (a). to derive or reconstruct the original electronic record from the hash result produced by the algorithm; (b). that two electronic records can produce the same hash result using the algorithm.
67.11 Rule 3, 4 & 5 of IT Act provide the use of the hash function in authentication of information by digital signature and in creation and verification of digital signature and further provides that the electronic record was unaltered, which is known to be the case if the hash result computed by the verifier is identical to the hash result extracted from the Digital Signature during the verification process. The rule 6 of the IT Act recognizes the MD5 & SHA-2 as the accepted standard digital hash function.
CBI Case No.43/2020 Page 160 of 18767.12 Above mentioned literature and law under Information Technology Act, 2000, as such, highlights the significance of hash value of an electronic record. At the same time, it does not mandate that in the absence of hash value, the electronic record has to be dismissed by the Court, in totality. Admittedly, CBI did not place on record hash value of the audio recordings, it had collected during investigation. The issue, which needs adjudication is, whether in the absence of hash value, electronic record, collected by CBI in this case, was relevant and admissible?
67.13 In this case, the fact that CBI had collected conversations between accused persons and complainant, which included conversations with SI Rajender Sharma and Rameshwar Dayal, with regard to the complaint of complainant, based on bribery, indicated that said electronic evidence, was relevant. That evidence, pertained to the fact-in-issue, involved in this case, based on the claims of bribery being demanded by accused persons, raised by complainant. So, CBI rightly collected that evidence.
67.14 With regard to admissibility of said evidence, I find that Section 65-B of IEA is the relevant section. Sub-Section 4 of said Section 65-B, IEA, is a condition, precedent to the admissibility of electronic record in evidence. That Section mandates how information contained in an electronic record, which is printed on a paper, stored, recorded or copied in optical or magnetic media, produced by CBI Case No.43/2020 Page 161 of 187 CBI vs. Kapil & Anr.
computer, shall be made admissible in any proceedings, without further proof or production of the original.
67.15 So, Section 65-B IEA talks about how in the absence of original, electronic record can be made admissible in Court proceedings.
67.16 In present case, original SD cards, in which conversations were recorded, were produced in the Court. So, there was no need for compliance under Section 65-B IEA with respect to said SD cards.
67.17 Coming to the aspect of relevance of hash value in present case, I find that A-1 did not give any suggestion to any of the prosecution witnesses, to the effect that in the absence of hash value, A-1 was prejudiced to any extent. He did not give any suggestion to any of the prosecution witnesses to the effect that in the absence of hash value of audio files, recorded in SD cards, those SD cards, as such, cannot be believed to be true reproduction of the original conversations. He did not give any suggestion, to the effect that, CFSL prepared its report on the basis of false electronic record, supplied to it or that CFSL had received tampered electronic record from CBI. Absence of those specific suggestions, made the case of A-1, weak, vis-a-vis above mentioned aspect of hash value, argued by him.
CBI Case No.43/2020 Page 162 of 18767.18 Apart from that, prosecution through testimony of PW12, gave explanation as to why hash value with regard to audio recordings, was not taken during investigation. PW12, who was one of the Investigating Officer in this case, explained in his cross- examination that he had simply asked from CFSL vide Que No.7 in letter Ex.PW12/3, as to whether micro SD cards were compatible with the DVR. He further explained that he had not taken the hash value of the SD cards because IO copy of SD cards was prepared by Write Blocker in the presence of independent witnesses during trap proceedings and original SD cards were sealed then and there, with CBI Brass Seal under the signatures of independent witnesses. That explanation, as such, was not unreasonable and/or improbable. A-1 did not give any suggestion, contrary to the said explanation, which made the said explanation, tenable.
67.19 PW13, who was the concerned expert from CFSL, who had given his report Ex.PW13/1, again was not given any suggestion, to the effect that, SD cards, he had examined, were tampered with, prior to examination or those SD cards contained false information. PW13 explained in his cross-examination that he cannot comment about, whether without hash values, it is not possible to check whether files were copies by CBI, using a Write Blocker or not. He deposed that other technical experts in his office, can explain the same. So, testimony of said expert, did not help the cause of A-1.
CBI Case No.43/2020 Page 163 of 18767.20 Lastly, I find that it was A-1, who had raised the issue of non-supply of hash value by CBI to expert of CFSL. It was Ld. Counsel for A-1 who had claimed that due to non-filing of hash value of SD cards, case of prosecution failed. So, A-1 should have come up with clear and cogent defence, based on non-filing of hash value of SD cards. It was incumbent on him, to have examined defence expert in said field, as expert, examined by prosecution viz., PW13, did not throw light on the said aspect, due to lack of knowledge.
67.21 So, based on aforesaid appreciation, I find that, one, A-1 failed to raise clear and precise case, based on benefit, he had got, legally due to non-filing of hash value and second, that he did not lead evidence in support of his said probable defence.
67.22 Arguments with respect to hash value, raised by A-1, therefore, were discarded by me, based on above conclusion.
(d). Inconsequential arguments - Ld. Counsel for A-1 argued certain points which by themselves were inconsequential, having no bearing on the merits of this case. Those arguments were viz., that original complaint of complainant was destroyed by prosecution;
that prosecution witnesses deposed falsely; that recordings seemed to have been done on phone;
CBI Case No.43/2020 Page 164 of 187 that CDR of SI Rajender Sharma was not collected by CBI; that there was no sound in entire trap proceedings; that FSL had wrongly filed report, supporting prosecution; that there was no site plan;
that various documents were not filed by prosecution viz., recorded investigation of SI Rajender Sharma, handing over memo, made by PW15 to PW12, recorded investigation of A-1, recommended action letter against SI Rajender Sharma and internal documents that decided not to charge-sheet Rajender Sharma;
that "soni" word was not found in recording;
that hash value was not submitted to CFSL.
67.23 Above mentioned arguments, again, did not make the prosecution doubtful.
67.24 The fact that original complaint of PW3 was destroyed, by itself did not make the prosecution case doubtful. PW3 himself admitted that original complaint which he had written, was destroyed when he went to the office of CBI. As per him, complaint Ex.PW3/1 was written by him, afresh, as CBI officers had directed him to do so. PW3 explained, in his testimony, that contents of hand-written complaint, which he had taken to CBI, were almost similar to Ex.PW3/1, which was written in the presence of CBI officials. That deposition, sealed the fate of argument, based on tearing of original CBI Case No.43/2020 Page 165 of 187 CBI vs. Kapil & Anr.
complaint of complainant. It is brought on record through the testimony of PW3 that contents of complaint Ex.PW3/1 were similar to the contents of complaint which was torn in CBI office. No suggestion was put to PW3 by accused persons, highlighting false motive of prosecution, in tearing of the original complaint of complainant.
67.25 Further, it was argued that non-collection of CDR of SI Rajender Sharma and non-filing of site plan by prosecution made the prosecution case doubtful. Those aspects were of significance, in the eyes of Ld. Counsels for accused persons. They were not significant in the eyes of concerned Investigating Officer of this case and that is why, they were not brought on record. After considering the record of this case, I find that said non-collection of CDR of SI Rajender Sharma and non-filing of site plan, by itself did not create any doubt in the case of prosecution. Those were aspects, within the domain of investigation, being carried out by Investigating Officer. If accused persons wanted to highlight that by not filing said record, Investigating Officer had caused prejudice to accused persons, then they should have explained the same by cross-examining the witnesses and should have given suggestions, based on the same. In the alternative, accused persons could have led evidence, in support of their said contentions. They failed on all accounts. It did not make their defence plausible.
CBI Case No.43/2020 Page 166 of 18767.26 Further, claim of accused persons that recordings were done on phone; that there was no sound in entire trap proceedings and FSL had filed wrong report, were based on whims only. They were not supported by any specific reasoning. Therefore, I discarded the same.
67.27 Lastly, absence of "soni" word in recording and non- filing of documents, based on investigation, pertaining to SI Rajender Sharma, again were not relevant aspects, which could have led to creation of doubts in the evidence, led by prosecution.
67.28 Above mentioned aspects are discarded by me being irrelevant in nature. They did not make the evidence, brought on record by prosecution, doubtful.
APPRECIATION OF DEFENCE ARGUMENTS ON BEHALF OF A-2
68. Ld. counsel for A-2 argued that there were contradictions in prosecution story regarding the manner in which A-2 had met A-1 and SI Rajender Sharma. He denied that A-2 had demanded any bribe from complainant. Further, there were contradictions in the testimony of Rameshwar with regard to the recordings, recorded on 25.01.2020. He argued that PW9 had not signed complete documents, prepared during investigation. As per him, PW11 had identified A-2 in CBI Case No.43/2020 Page 167 of 187 CBI vs. Kapil & Anr.
proceedings, recorded on 28.01.2020 but A-2 was not present on that day. As per him, Ex.DW2/1 reflected that PW - Rameshwar was in office on all the four days i.e. from 24.01.2020 till 28.01.2020.
68.1 So far as, above contradictions, highlighted by Ld. Counsel for A-2 are concerned, I find that those contradictions were not brought on record, legally. As per the judgment of Tehsildar vs. State AIR 1959 SC 1012, attention of the witnesses, must be drawn before contradicting him with the facts. That is required, so that explanation can be sought from the witnesses, with regard to the contradictions, highlighted by the defence. In this case, Ld. Counsel for A-2, while cross-examining prosecution witnesses, failed to draw their attention with respect to the aspects, deposed by other witnesses and documents, placed on record. If A-2 had claimed that PW Rameshwar had called A-2 at a time, which was different from the record of prosecution, then, attention of the said witness should have been drawn towards the distinct time period of said meeting, as was claimed by A-2. Similarly, A-2 should have asked prosecution witnesses as to when A-2 had met A-1 and SI Rajender Sharma and based on said replies, should have sought explanation, from the witnesses. Same was not done by A-2.
68.2 Even otherwise, I must mention here that the said contradictions, were minor contradictions. Based on said highlighted contradictions, evidence of prosecution witnesses, cannot be seen as CBI Case No.43/2020 Page 168 of 187 CBI vs. Kapil & Anr.
abnormal. Said contradictions, at the most, were discrepancies which did not corrode the credibility of prosecution witnesses. Those contradictions were natural in nature as prosecution witnesses had deposed after a considerable gap of time, in the Court since the time, when verification and trap proceedings had taken place. So, they, infact, supported the truthfulness of the witnesses, examined by prosecution. In coming to said conclusion, I am guided by the law laid down in case laws titled as Prabhu Dayal vs. State of Rajasthan (2018) 8 SCC 127, Bhagwan Jagannath Markad vs. State of Maharashtra (2016) 10 SCC 537 and Dharnidhar vs. State of UP 2010 (6) SCJ 662.
68.3 All the aforesaid arguments, at the most, are seen by me as minor contradictions in the case of prosecution. A-2, as such, failed to explain, as to why he persisted with convincing complainant to pay bribe amount on 25.01.2020, as per the audio recordings, which are placed on record? A-2 failed to explain, as to why he complied with the directions of A-1 while moving out of the office of A-1 with complainant on 25.01.2020 and talked to complainant at length regarding payment of Rs.20,000/-? A-2 failed to explain, as to how he came to know about Rs.15,000/- / Rs.20,000/-? A-2 failed to explain, as to what was the context in which he was talking to complainant on 25.01.2020, referring to Rs.15,000/- and Rs.20,000/-? A-2 also failed to explain, as to why he talked to A-1 on phone and apprised A-1 about the fact that complainant was talking about Rs.15,000/-?Now, CBI Case No.43/2020 Page 169 of 187 CBI vs. Kapil & Anr.
above questions, were relevant questions. Those were the questions which A-2 should have explained by giving proper suggestions to prosecution witnesses and in his statement, under Section 313 CrPC. He could have examined himself as witness and explained those aspects. He failed on all accounts.
68.4 Therefore, above mentioned arguments did not help the cause of A-2.
68.5 Ld. counsel for A-2 also argued that A-2 was a victim, as he was present at wrong time at wrong place. I am amazed by said argument. Reason being, that said argument indicates that Ld. Counsel for A-2 admitted that A-2 was present on 25.01.2020, as was the prosecution story. It also indicated that Ld. Counsel for A-2 admitted the conversation based evidence, placed on record by prosecution. As such, playing a victim card, did not absolve A-2 from the incriminating evidence, which is brought on record by prosecution, as appreciated above, by me in my preceding paragraphs.
68.6 Besides that, Ld. Counsel for A-2 argued on the same lines, as were the arguments of A-1. Since, I have already appreciated the arguments of A-1, so, their appreciation needs no repetition.
CBI Case No.43/2020 Page 170 of 18768.7 The net result is that I can scarcely believe the arguments of Ld. Counsels for accused persons. Those arguments stand discarded.
CONCLUSION
69. In the light of above mentioned analysis, I find that both accused persons demanded bribe from complainant, in a concomitant manner. They were hand-in-gloves with each other. They knew the amount and the purpose for which, they were demanding that amount. The amount, accused persons were demanding, was not legal.
69.1 Now, issue arises, whether demand, made by accused persons, by itself amounted to an offence under Section 7 of PC Act, 1988?
69.2 In order to answer the said question, I must refer to Section 7 of PC Act, in verbatim. Same is mentioned below :-
7. [Offence relating to public servant being bribed.
[Substituted by Act No. 16 of 2018, dated 26.7.2018.] - Any public servant who,-(a)obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or
(b)obtains or accepts or attempts to obtain, an undue advantage from any person as a reward for the improper CBI Case No.43/2020 Page 171 of 187 CBI vs. Kapil & Anr.
or dishonest performance of a public duty or for forbearing to perform such duty either by himself or another public servant; or (c)performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine. Explanation 1. - For the purpose of this section, the obtaining, accepting, or the attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by public servant, is not or has not been improper.
69.3 On a plain reading of above mentioned provision, it is clear that if a public servant obtains or accepts or attempts to obtain from any person an undue advantage with the intention to perform any public duty, improperly or dishonestly, then it will amount to an offence under this Section.
69.4 The expression, "attempt to obtain" needs a closer look.
69.5 In criminal law, there are three stages of a crime and fourth is the result of these three. Those three stages are; intention, preparation and attempt.
69.6 A person who commits an offence, firstly, must have an intention to commit that offence. Thereafter, he prepares for CBI Case No.43/2020 Page 172 of 187 CBI vs. Kapil & Anr.
committing that offence and proceeds further with an attempt to do it. If the attempt is successful, offence is committed.
69.7 There is very thin line between the preparation and an attempt to commit an offence. Undoubtedly, a culprit first intends to commit the offence, then makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence; if it fails due to reasons beyond his control, he is said to have attempted to commit the offence. Attempt to commit an offence, therefore, can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. Reliance in this regard is placed on Abhyanand Misra vs. state of Bihar, AIR 1961 sC 1698.
69.8 So, in the wake of above law, it is clear that once a person starts doing an act with necessary intention, he is believed to have attempted to commit that offence.
69.9 So, if a demand of obtaining bribe amount is made by an accused, it will mean that, that accused had intention to receive bribe amount from complainant/ victim. It also means that said accused had expressed himself and in the process, had proceeded further for CBI Case No.43/2020 Page 173 of 187 CBI vs. Kapil & Anr.
getting his demand realized from complainant / victim. So, demand made by an accused, would fall in the category of "attempt to obtain an undue advantage with intention to perform public duty improperly" within the realms of Section 7 of PC Act, 1988.
69.10 In coming to the conclusion that demand of bribe amount by a public servant, will constitute an offence under Section 7 of PC Act, 1988, I am supported by the case laws titled as Prabudh Garg vs. Special Police Establishment Lokayukta 2020 SCC OnLine MP 174 and Mubarak Ali vs. State of MP AIR 1958 MP 157.
69.11 Now, let us appreciate the facts & evidence of present case, to decide, as to whether accused persons had demanded bribe amount from complainant, which tantamount to offence under Section 7 of PC Act.
69.12 In this case, I find that it was not the situation that both accused persons had simply thought about getting bribe amount from complainant. It was not the situation that both accused persons had discussed amongst themselves only and had not contacted complainant. It was not the situation that accused persons were not clear about the exact bribe amount, they demanded complainant. It was not the situation that both accused persons did not work together, hand-in-hand, while demanding bribe amount from complainant.
CBI Case No.43/2020 Page 174 of 18769.13 Both accused persons, as such, had intention to demand bribe amount from complainant as based on said intention, they had demanded bribe from complainant, as reflected by the audio recordings, which are placed on record by prosecution and also on the basis of oral testimonies of prosecution witnesses. Besides that, once accused persons, expressed themselves before complainant, that they wanted bribe amount of Rs.20,000/-, they had acted further with said intention, which amounted to attempt to obtain bribe amount from complainant. Both the accused persons did try to convince complainant, in their own ways, by making conversation with complainant, at length. So, both accused persons, did what was in their control, to get the bribe amount from complainant. Their said actions, based on reliable evidence on record, proved that they attempted to obtain bribe from complainant. Coupled with the same, I find that A-1 categorically claimed by suggesting prosecution witnesses that he was not competent to give posting to complainant. If that is so, then, demand of bribe by A-1 for giving posting to complainant, amounted to an assurance, which was given by A-1 to complainant for performing his public duty, illegally. Therefore, demand of bribe by accused persons, in this case, amounted to an attempt to obtain bribe from complainant for performing their duty improperly and dishonestly. It, therefore, amounted to an offence, punishable under Section 7 of PC Act.
CBI Case No.43/2020 Page 175 of 18769.14 This brings me to the offence of criminal conspiracy under Section 120-B IPC read with Section 7 of PC Act with which accused persons were charged, separately.
69.15 Here, it will be useful to consider the concept of criminal conspiracy under secs. 120-A and 120-B of IPC. Hon'ble Apex Court in Kehar Singh & Ors. vs. State (Delhi Administration AIR 1988 SC 1883) had the occasion to appreciate said provisions. I am quoting relevant paragraphs of the said judgment, below, in verbatim :-
"These provisions have brought the Law of Conspiracy in India in line with the English law by making the overt act unessential when the conspiracy is to commit any punishable offence. The English Law on this matter is well-settled. The following passage from Russell on Crime (12 Ed. Vol. I, 202) may be usefully noted:
"The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se, enough. "
Coleridge, J., while summing up the case to Jury in Regina v. Murphy, (173 Eng. Reports 508) pertinently states:
"I am bound to tell you, that although the common design is the root of the charge, it is not necessary to prove that these two parties came together and actually agreed in terms to have this common design and to pursue it by common means, and so to carry it into execution. This is not necessary, because in many cases of the most clearly established CBI Case No.43/2020 Page 176 of 187 CBI vs. Kapil & Anr.
conspiracies there are no means or proving any such thing, and neither law nor common sense requires that it should be PG NO 184 proved. If you find that these two person pursued by their acts the same object, often by the same means, one performing one part of an act, so as to complete it, with a view to the attainment of the object which they were pursuing, you will be at liberty to draw the conclusion that they have been engaged in a conspiracy to effect that object. The question you have to ask yourselves is, "Had they this common design, and did they pursue it by these common means-the design being unlawful?"
It will be thus seen that the most important ingredient of the offence of conspiracy is the agreement between two or more persons to do an illegal act. The illegal act may or may not be done in pursuance of agreement, but the very agreement is an offence and is punishable. Reference to secs-120-A and 120-B IPC would make these aspects clear beyond doubt. Entering into an agreement by two or more persons to do an illegal act or legal act by illegal means is the very quintessence of the offence of conspiracy. Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will of ten rely on evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the Court must enquire whether the two persons are independently pursuing the same end or they have come together to the pursuit of the unlawful object. The former does not render them conspirators, but the latter is. It is however, essential that the offence of conspiracy requires some kind of physical manifestation of agreement. The express agreement, however, need not be proved. Nor actual meeting of two persons is necessary. Nor it is necessary to Prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient. Gerald Orchard of University of Canterbury, New Zealand (Criminal Law Review I974, 297 at 299 explains the limited nature of this proposition:CBI Case No.43/2020 Page 177 of 187
CBI vs. Kapil & Anr.
"Although it is not in doubt that the offence requires some physical manifestation of agreement, it is important to note the limited nature of this proposition. The law does not require that the act of agreement take any particular form and the fact of agreement may be communicated by words or conduct. Thus, it has been said that it is unnecessary to PG NO 185 prove that the parties "actually came together and agreed in terms" to pursue the unlawful object; there need never have been in express verbal agreement, it being sufficient that there was "a tacit understanding between conspirators as to what should be done."
I share this opinion, but hasten to add that the relative acts of conduct of the parties must be conscientious and clear to mark their concurrence as to what should be done. The concurrence cannot be inferred by a group of irrelevant facts artfully arranged so as to give an appearance of coherence. The innocuous, innocent or inadvertent events and incidents should not enter the judicial verdict. We must thus be strictly on our guard. It is suggested that in view of sec. 10 of the Evidence Act, the relevancy of evidence in proof of conspiracy in India is wider in scope than that in English Law. Section 10 of the Evidence Act introduced the doctrine of agency and if the conditions laid down therein are satisfied, the acts done by one are admissible against the co-conspirators. Section 10 reads:
"10. Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it."
From an analysis of the section, it will be seen that sec. 10 will come into play only when the court is satisfied that CBI Case No.43/2020 Page 178 of 187 CBI vs. Kapil & Anr.
there is reasonable ground to believe that two or more persons have conspired together to commit an offence. There should be, in other words. a prima facie evidence that the person was a party to the conspiracy before his acts can be used against his co-conspirator. Once such prima facie evidence exists, anything said, done or written by one of the conspirators in reference to the common intention, after the said intention was first entertained, is relevant against the others. It is relevant not only for the purpose of proving the existence of conspiracy, but also for proving that the other person was a party to it. It is true that the observations of Subba Rao, J., in Sardar Sardul Singh PG NO 186 Caveeshar v. State of Maharashtra, [1964] 2 SCR 378 lend support to the contention that the admissibility of evidence as between co- conspirators would be liberal than in English Law. The learned Judge said (at 390) :
"The evidentiary value of the said acts is limited by two circumstances, namely, that the acts shall be in reference to their common intention and in respect of a period after such intention was entertained by any one of them. The expression "in reference to their common intention" is very comprehensive and it appears to have been designedly used to give it a wider scope than the words "in furtherance of" in the English Law; with the result, anything said, done or written by a co-conspirator, after the conspiracy was formed, will be evidence against the other before he entered the field of conspiracy or after he left it . . . . . . ."
But, with respect, the above observations that the words of sec. 10 have been designedly used to give a wider scope than the concept of conspiracy in English Law, may not be accurate. This particular aspect of the law has been considered by the Privy Council in Mirza Akbar v. king Emperor, AIR 1940 PC 176 at 180, where Lord Wright said that there is no difference in principle in Indian Law in view of sec. 10 of the Evidence Act.
The decision of the Privy Council in Mirza Akbar's care has been referred to with approval in Sardul Singh CBI Case No.43/2020 Page 179 of 187 CBI vs. Kapil & Anr.
Caveeshar v. The State of Bombay, [1958] SCR 161 at where Jagannadhadas, J., said:
"The limits of the admissibility of evidence in conspiracy case under s.10 of the Evidence Act have been authoritatively laid down by the Privy Council in Mirza Akbar v. The King Emperor, (supra). In that case, their Evidence Act must be construed in accordance with the principle that the thing done. written or spoken, was something done in carrying out the conspiracy and was receivable as a step in the proof of the conspiracy. They notice that evidence receivable under s. 10 of the Evidence Act of "anything said done or written, by one of such persons" (i.e., conspirators) must he "in reference to their common intention." But their Lordships held that in the context (notwithstanding the amplitude of the above phrase) PG NO 187 the words therein are not capable of being widely construed having regard to the well-known principle above enunciated."
69.16 Further, there cannot be direct evidence for the offence of criminal conspiracy. Express agreement between the parties, as such, cannot be proved. Court should consider the circumstances, proved to decide upon the complicity of accused, in cases involving criminal conspiracy. Reliance in this regard is placed upon the case law titled as Chandra Prakash vs. State of Rajasthan 2014 (86) ACC 836 (SC).
69.17 Further, a criminal conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the common intention of the conspirators. Therefore, the meeting of the minds can be inferred from the circumstances, proved by the prosecution, if such inference is possible. Reliance in this regard is placed upon case law CBI Case No.43/2020 Page 180 of 187 CBI vs. Kapil & Anr.
titled as Shiv Narayan Laxmi Narayan Joshi vs. State of Maharashtra (1980) 2 SCC 465.
69.18 After considering above mentioned observations, pertaining to the offence of criminal conspiracy, I find that it is not necessary for the Court, to see proof of two parties coming together and agreeing to the terms of their common design, for carrying out execution of the said common design, for the purpose of offence of criminal conspiracy. Whether two persons had conspired together, can be appreciated on the basis of acts which they did, one after the another, for pursuing their common object. Further proof of criminal conspiracy, more often than not, is based on circumstantial evidence and not direct evidence. Further, ordinarily, it is difficult for prosecution to get direct evidence, with respect to the offence of criminal conspiracy and commission of said offence can be inferred from the circumstances of a particular case. Things done, written or spoken by the co-conspirators become relevant under Section 10 of IEA.
69.19 In the light of above principles and understanding of law, pertaining to criminal conspiracy, I am now considering the evidence which is brought on record by prosecution.
CBI Case No.43/2020 Page 181 of 18770. The facts which were proved beyond reasonable doubt by prosecution, on the basis of oral testimonies, CDR and audio recordings and its transcripts are:-
That both accused persons and complainant used to work in the same Ward of MCD, during the time when verification proceedings and trap proceedings were conducted by CBI; Complainant wanted posting after getting regularized and in this regard, he approached A-1;
A-1 instead of refuting complainant by claiming that he had no authority to give posting to complainant, indulged in detailed conversations and those conversations, pertained to demand of bribe amount of Rs.20,000/-;
A-1 claimed that said bribe amount, had to be paid to SI Rajender Sharma but there was no proof that SI Rajender Sharma demanded said bribe amount;
Complainant, without informing A-1, directly approached SI Rajender Sharma and told him about the demand of bribe, made by A-1 which SI Rajender Sharma, dismissed; A-1 got annoyed after knowing that complainant had approached SI Rajender Sharma directly without taking A-1 into confidence; A-1 asked A-2 to talk to complainant after going out of the office of A-1;
A-2 talked to complainant and tried to convince him to pay bribe amount of Rs.20,000/-;CBI Case No.43/2020 Page 182 of 187
CBI vs. Kapil & Anr.
A-2 talked to A-1 on phone and informed A-1 about the conversation which A-2 had with complainant; In the said conversations between accused persons and complainant, though the word "bribe" was not used as an expression but expressions like "Sewa", "Deal", "15", "20", "peshkesh" and the sentences, "jo tane karna hai, wo kar de.....15 ek de diya......yeh diye hai", were used.
70.1 Above mentioned facts, which surfaced after trial, indicated that both accused persons knew about the grievance of complainant and both of them wanted Rs.20,000/- from complainant, for giving posting to complainant. The fact that both accused persons had made conversation with complainant; that A-2 had tried to convince complainant at the instance of A-1 to pay Rs.20,000/- and A-2 informing A-1 about the conversation, he had with complainant, were sufficient proof of existence of criminal conspiracy between accused persons. No other plausible theory was brought on record by accused persons by cross-examining prosecution witnesses, by replying to incriminating evidence, put to them under Section 313 CrPC and by leading defence evidence.
70.2 Prosecution, thus, was able to prove that both accused persons, individually had demanded a sum of Rs.20,000/- from complainant as illegal gratification for the purpose of issuing posting CBI Case No.43/2020 Page 183 of 187 CBI vs. Kapil & Anr.
order, pursuant to regularization of services of complainant as Safai Karamchari, on 24.01.2020 & 25.01.2020.
70.3 In the wake of above mentioned appreciation and conclusions, can it be said that prosecution was able to prove its case beyond reasonable doubt. Here, expression "beyond reasonable doubt" needs to be understood.
70.4 A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt, based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial, if a case has come inevitable flaws because human beings are prone to err, it is argued that it is too imperfect. Vague hunches cannot take the place of judicial evaluation. To constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of accused persons arising from the evidence or from the lack of it, as opposed to mere vague apprehensions. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice. Exaggeration of the rule of benefit of doubt can result in miscarriage of justice. Letting the guilty escape, is not doing justice. Reliance in this regard is placed on case laws titled as Sheela Sebastian vs. R. Jawaharraj (2018) 7 SCC 581; Bhagwan Jagannath Markad vs. State of Maharashtra (2016) CBI Case No.43/2020 Page 184 of 187 CBI vs. Kapil & Anr.
10 SCC 537, Chhotanney vs. State of UP AIR 2009 SC 2013; Ramesh Harijan vs. State of UP (2012) 5 SCC 277, Sucha Singh vs. State of Punjab (2003) 7 SCC 643 and State of UP vs. Ashok Kumar Srivastava AIR 1992 SC 840.
70.5 So, in the wake of above mentioned case laws, it is clear that reasonable doubt means a doubt which is created on the basis of reason and common sense. It is not to be based on whims of a person. Few flaws in investigation which do not go to the root of the matter, cannot be made the basis of acquitting an accused. The rights of accused, involved in a criminal matter, as such, should not be protected on the basis of recognizing trivialities in the matter.
70.6 Based on said understanding of law, I find that the oral testimonies, electronic evidence and expert evidence, led by prosecution, indicated towards the guilt of accused persons, in this case. The defence of accused persons, on the contrary, was vague and incomplete. The doubts in the prosecution story, which were raised by accused persons, were not probable and believable.
70.7 Further, when we consider the issue of proof of demand within the meaning of Section 7, it cannot be a simplicitor demand for money but it has to be a demand of gratification other than legal remuneration. In this case, demand of money by accused persons was a demand of gratification other than remuneration.
CBI Case No.43/2020 Page 185 of 18770.8 Further, in this case, not only complainant and officials from CBI, rather, independent witnesses had joined investigation and all of them deposed, on the same lines, as was the case of prosecution. The uniformity in their evidence, coupled with other corroborating evidence, as appreciated above, only indicated guilt of accused persons.
70.9 Therefore, prosecution was able to prove beyond reasonable doubt that both accused persons had demanded said sum of money, in pursuance of criminal conspiracy. So, prosecution was able to prove the charges against both accused persons.
70.10 Both accused persons had claimed defence, based on their personal knowledge. They should have probabilized their said defence by examining themselves, once, prosecution witnesses did not accept their defence. They did not do so. In other words, they failed to probabilize their defence, based on preponderance of probabilities.
71. Thus, accused Kapil s/o Late Sh. Om Prakash is convicted of offence punishable under Section 7 of PC Act. He is also convicted of offence punishable under Section 120-B IPC read with Section 7 of PC Act.
CBI Case No.43/2020 Page 186 of 18772. Further, accused Dhan Singh s/o Sh. Ram Kishan is convicted of offence punishable under Section 7 of PC Act. He is also convicted of offence punishable under Section 120-B IPC read with Section 7 of PC Act.
Announced in the Open Court Digitally signed
by PRASHANT
on 06th August 2025 PRASHANT SHARMA
Date:
SHARMA 2025.08.06
16:10:29
+0530
(Prashant Sharma)
Spl. Judge (PC Act): CBI-15
Rouse Avenue District Court
New Delhi/06.08.2025
CBI Case No.43/2020 Page 187 of 187