Delhi District Court
Cbi vs Iqbal Singh & Anr. on 25 February, 2014
CBI vs Iqbal Singh & Anr.
IN THE COURT OF SH. GURVINDER PAL SINGH,
SPECIAL JUDGE (PC ACT) (CBI)6,
PATIALA HOUSE COURT, NEW DELHI
CC NO. 12/2012 (Old CC No. 27/10)
RC No. 18A/2009/CBI/ACB/New Delhi
U/s 120B IPC & Section 7, 13(1)(d) r/w 13 (2) of PC Act, 1988
Unique ID No.: 02403R0253662010
Central Bureau of Investigation
vs
(1) Iqbal Singh (A1) S/o Late Sh Buta Singh
R/o M136 (present), previously M492, Guru Har
Kishan Nagar, Paschim Vihar, New Delhi110087
(2) Amit Kumar Sharma (A2) S/o Late Sh Yash Pal Sharma
R/o 198/47, Second Floor, Ramesh Market, East of Kailash,
New Delhi110065
Date of FIR : 13/03/2009
Date of filing of Chargesheet : 30/07/2010
Case received by transfer on : 04/07/2012
Arguments concluded on : 13/02/2014
Date of Judgment : 25/02/2014
Appearances
For prosecution : Sh V.K Ojha, Ld. Public Prosecutor for CBI.
For accused : Sh Harsh K. Sharma, Ld. Counsel for A1.
Sh Manish Tiwari, Ld. Counsel for A2.
RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 1/85
CBI vs Iqbal Singh & Anr.
JUDGMENT
FACTS GERMANE TO REGISTRATION OF CASE AND CONCLUSION OF INVESTIGATION.
Sh Hitesh Chaddha, complainant (herein after mentioned as PW7) lodged complaint, dated 12/03/2009 with Superintendent of Police, CBI ACB Delhi alleging therein a demand of bribe on the part of Iqbal Singh (herein after called A1), Halka Patwari from the complainant for settling the matter of notice under Section 81 of Delhi Land Reforms Act and also for conducting the girdavari of the farmhouse of the complainant favourably (herein after mentioned as 'the said purpose'). Said complaint was marked to SI M.K Upadhyay (PW14) of CBI, ACB, Delhi for verification. It was discreetly verified in the presence of independent witness Sh Manoj Kumar Upadhyay (PW11) and before registering a case it was decided to verify the allegations mentioned in the complaint. In the presence of PW11 the conversation which took place between PW7 and A1 was got recorded. The verification confirmed the demand and agreement to accept an illegal gratification of Rs 2.25 lakhs by A1 from PW7 for the said purpose. The said conversation recorded was transferred and stored in audio cassette Q1. A1 further directed PW7 to come on 13/03/2009 for delivery of the said bribe amount of Rs 2.25 lakhs. On the basis of the complaint dated 12/03/2009 and its subsequent verification recorded in Verification Memo (D5), the instant case was registered on 13/03/2009 against A1 RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 2/85 CBI vs Iqbal Singh & Anr.
and investigation commenced.
2. Pretrap proceedings were conducted at CBI office in the presence of CBI team members namely Sh Dhiraj Khetrapal (PW16) i.e., Trap Laying Officer (herein after mentioned as TLO); Sh Rajesh Chahal (PW15); Hitender Adlakha; R.C Sharma; Prem Nath; all inspectors and SI Manish Upadhyay (PW14), PW7 and two independent witnesses namely Sh Pranav Jha (PW13), Officer, Canara Bank and Sh M.K Upadhyay (PW11), Attendant Central Pollution Control Board, New Delhi. In said pretrap proceedings PW7 contacted A1 on his mobile phone. During the said conversation, A1 directed PW7 to come to his office after lunch. The conversation held between the two was recorded in a Digital Voice Recorder (here in after mentioned as DVR). PW7 produced two bundles containing 100 notes each of Rs 500/ denomination totaling Rs 1 lakh out of the total demanded bribe amount of Rs 2.25 lakhs. The number and denomination of the GC notes so produced were recorded in the Handing Over Memorandum (D6) dated 13/03/2009. PW7 was asked to tell A1 that he could arrange only 1 lakh and the rest of the amount would be paid shortly. Aforesaid GC notes were treated with phenolphthalein powder. Inspector Prem Nath gave the demonstration to the members present. Inspector Prem Nath also explained the purpose and significance of use of phenolphthalein powder and its chemical reaction with sodium carbonate. The two bundles of GC notes of Rs 50,000/ each were placed in the right and left side hip pant RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 3/85 CBI vs Iqbal Singh & Anr.
pockets of PW7. DVR was also given to PW7. PW13 was deputed as shadow witness with the direction to overhear the conversation of PW7 and A1 and to give a signal by rubbing his face with his both hands, after the transaction of bribe is over. PW7 and PW13 were also directed to give calls from their mobile phones to the mobile phone of PW16 in the event they are not able to see PW16 or the other team members. Pre trap proceedings were concluded and detailed in Handing Over Memorandum (D6).
3. At about 3 pm on 13/03/2009 the trap team members reached the spot i.e., the office of Tehsildar, Mehrauli, took appropriate positions outside the said office. After switching on the DVR, PW7 along with PW13 entered the parking area in front of the Tehsildar Office. After few minutes, one person whose identity later on established as A1 was seen coming out of his office and entered the parking lot and entered into conversation with PW7, accepted the bribe amount (Rs 1 lakh) from PW7 through one person later on identified as Amit Kumar Sharma (herein after called A2) whose presence was secured by A1 by contacting over his mobile phone. At about 3.15 pm it was confirmed by PW13 over mobile phone of team member that transaction of bribe was over. Then the trap team members rushed to the spot. PW16 challenged A1 for demanding and accepting bribe from PW7. On being confronted, A1 tried by force to escape but he was overpowered at some distance by Inspectors Prem Nath, R.C Sharma, Hitender Adlakha. In the meantime RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 4/85 CBI vs Iqbal Singh & Anr.
PW13 informed the trap team that the bribe money had been accepted by A1 through A2. A2 after accepting the said bribe amount of Rs 1 lakh with his right hand kept the same inside his shirt by opening the button and went to the other side of the parking area. PW16 with PW15 rushed to the other side of the parking area and after challenging caught A2 while he was placing the bribe money in a carton kept inside the black colour Toyota Corona car no. DL3CF0053. Both A1 and A2 were caught. The right hand wash of A2 was taken in a freshly prepared solution of sodium carbonate and water which turned into pink. The pink coloured solution was transferred into a clean glass bottle marked RHW and sealed with CBI seal. Washes of the shirt of A2 as well as the white colour vest of A2 were also taken separately in freshly prepared solution of sodium carbonate and water and were sealed in a clean glass bottle each after marking them as SW and VOW respectively. The wash of the carton in which the bribe money was being placed was also taken in the similar fashion and the same was also sealed and marked as CW. The numbers and denominations of GC notes recovered of bribe amount were tallied with the numbers and denominations of GC notes mentioned in Handing Over Memorandum (D6) by both independent witnesses PW11 and PW13, which tallied in toto. Both A1 and A2 were arrested. Search of office premises of A1 was conducted and relevant documents including cash of Rs 30,000/ were seized. The spot conversation recorded in DVR was played and heard by all witnesses including the independent witnesses PW11 and PW13, which confirmed RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 5/85 CBI vs Iqbal Singh & Anr.
demand and acceptance of illegal gratification on the part of A1. Recorded conversation was transferred into blank audio cassette and marked as Q2, which cassette was sealed.
4. Both accused were produced in custody in the Court on 14/03/2009 and remanded to judicial custody vide various orders. Both accused were enlarged on bail on 14/05/2009 as right to bail accrued to them under proviso (a) (ii) of Sub Section (2) of Section 167 of Code of Criminal Procedure as within the statutory period of 60 days from the date of first remand of accused persons, the chargesheet was not filed and investigation was incomplete.
5. Work relating to Girdawari of Jaunapur, Tehsil Hauz Khas was being looked after by A1 as the village had been allocated to him for this purpose. Being a Patwari, it was the duty of A1 to do the Girdawari of the agriculture lands in his allocated village area twice a year so as to bring on record the various agricultural crops being grown by the farmers on a particular piece of land owned by them. Once the girdavari is done by the Patwari, the details were entered in the Girdawari Register.
6. Only Sub Divisional Magistrate/Revenue Assistant is empowered to issue such a notice under Section 81 of Delhi Land Reforms Act. No Patwari is authorised to issue any such notice.
RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 6/85 CBI vs Iqbal Singh & Anr.
Whenever it is brought to the notice of Revenue Assistant/SDM that agricultural land is being put to a nonagricultural use, the Revenue Assistant issues the notice with the directions to the Bhumidhar (title holder of the land) to submit his explanation before him.
7. A1 gave an impression to PW7 that he could settle the matter of notice under Section 81 of Delhi Land Reforms Act in favour of PW7 which A1 was not in a position to do, so A1 misrepresented to PW7 that it was within his power to issue and settle the matter of notice under Section 81 of Delhi Land Reforms Act.
8. CFSL report (D26) on chemical analysis of washes was received. The exhibits marked as RHW, LSSW, VW and CW gave positive tests for the presence of phenolphthalein. Voice analysis report of CFSL was positive in respect of voice of A1.
9. Sanction under Section 19 of Prevention of Corruption Act, 1988 for prosecution of A1 for the offences chargesheeted was accorded by Sh D.M Spolia (PW1), Principal Secretary (Revenue)/Divisional Commissioner, Delhi being the authority competent to remove A1 from his office.
10. On conclusion of investigation, the investigating agency filed the chargesheet on 30/07/2010 against the arraigned accused with RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 7/85 CBI vs Iqbal Singh & Anr.
the prayer to summon A1 and A2 and their trial for offences under Section 120B IPC read with Sections 7,13 (1)(d) read with Section 13(2) of The Prevention of Corruption Act 1988 and substantive offences.
11. Cognizance was taken on 06/08/2010 by my Ld. Predecessor and accused were summoned. Copies were supplied to the accused persons and requirements u/s 207 Cr. PC were complied with.
CHARGE
12. Charge for offences under (1) Section 120 B read with Section 7, 13 (1)(d) read with Section 13 (2) of The Prevention of Corruption Act, 1988 against both A1 and A2; (2) Sections 7, 13 (1)(d) read with Section 13 (2) of The Prevention of Corruption Act, 1988 against A1; (3) Section 12 of The Prevention of Corruption Act, 1988 against A2; were framed on 18/09/2012 in terms of Order dated 18/09/2012 to which A1 and A2 pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
13. To connect arraigned accused with the offences charged, prosecution has examined in all 17 witnesses namely Sh D.M Spolia (PW1); Sh Karan Luthra (PW2); Sh Raj Kumar Saini (PW3); Sh Anuj Bhatia (PW4); Sh Deepak Kanda (PW5); Sh M.N Vijayan (PW6); Sh Hitesh Chadha (PW7); Sh Vishnu Bhagwan (PW8); Dr. Rajinder Singh (PW9); Sh V.B Ramteke (PW10); Sh Manoj Kumar Upadhyay (PW11);
RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 8/85 CBI vs Iqbal Singh & Anr.
Sh R.S Sehrawat (PW12); Sh Pranav Jha (PW13); Inspector Manish Kumar Upadhyay (PW14); Deputy SP Rajesh Chahal (PW15); Deputy SP Dhiraj Khetrapal (PW16) and Investigating Officer Inspector Nikhil Malhotra (PW17).
STATEMENT OF ACCUSED
14. Thereafter accused persons were examined under Section 313 Cr. P.C. All incriminating material in evidence was put to the accused persons. Accused persons pleaded innocence and false implication.
15. A1 stated that PW2 had not given him the copy of bill of telephone number 6118210 Ex. PW 2/A (part of D27); he had not issued notice under Section 81 of DLR Act Ex. PW 7/A (D22); he used to maintain Khasra Girdawari Register of the year 200809; Kanongo used to certify as to how many pages were in the register. A1 further stated that Sh. R.S. Sehrawat was Naib Tehsildar in his tenure of Patwari there. A1 stated that he was brought in the room by the CBI officials on the day of raid but no statement of any person had been recorded in his presence; he was made to sit in a room and was beaten by the CBI officials and except that nothing took place in his presence; no document was prepared in his presence; however, he was made to sign certain blank papers forcibly. A1 stated that he was not aware about Hitesh Chadha going in CBI office nor he knew about the presence of other RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 9/85 CBI vs Iqbal Singh & Anr.
persons there; he was not aware whether Hitesh Chadha made a call to him (A1) as on 12/03/2009 he (A1) was not knowing any person of that name; in those days, he used to receive calls on mobile phone number 9811068259 about obtaining of any document like Girdawari, Khatoni, Kshijra, etc; he (A1) used to tell those persons to come to the office and on coming of these persons to his office, he (A1) used to tell them the procedures and formalities. A1 stated that during those days of March 2009, he was verifying the Khasra numbers of the houses in the unauthorized colonies; along with the list of such houses on 13/03/2009, he (A1) came outside the office of Sub Registrar for giving report to the Clerk; at that place, he met one person, who inquired from him (A1) about the procedure for obtaining Khatoni, Jamabandi; he (A1) told the procedure of the same to that person; that person asked him (A1) to tell such procedure after coming on a side, as he was not able to hear at the place where they (A1 and that person) were due to noise; they proceeded to a side; that person tried to go towards the parking; 5/6 persons arrived there and started giving him beatings; later he (A1) came to know that the person who had given him (A1) more beatings was Rajesh Chahal and said Rajesh Chahal told him "Aapne Paise Liye Hai"; he (A1) inquired why he was being beaten as he had not taken any money; abuses were hurled upon him and he was taken to various places in Tehsil and he was humiliated and defamed; he (A1) was taken to the room of Tehsildar; from there he (A1) was taken to another room; after every 1015 minutes Rajesh Chahal and another person used to come and RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 10/85 CBI vs Iqbal Singh & Anr.
slap him (A1) and told him (A1) "Tere ko barbad kar denge"; on few blank papers they obtained his (A1) signatures forcibly; he (A1) was also given fists and leg blows; he do not know what those people did thereafter; till evening all this continued and thereafter, he (A1) was brought to CBI office. A1 further stated that he was wrongly arrested and made to sign the documents, without permitting to read them, some of the documents were blank and being in custody he could not do anything; no authorization was shown either at his house for conducting search; the cassette which was played in the Court was inaudible and the cassette, on the basis of which the transcription was stated to be prepared was not produced in the Court. A1 stated that Ex PW9/B and Ex PW10/A were false reports. A1 stated that the witnesses were hand picked; PW7 as per his complaint had never met him (A1) before he (PW7) went to CBI office; no conversation, took place between him and PW7, except on the day when he (A1) was falsely apprehended and arrested; deposition before the Court, itself reflect that no pre assigned signal, reflecting the completion of the alleged proceeding relating to demand or acceptance on his part took place yet Inspector Rajesh Chahal, claimed to have given the directions to apprehend him; DVR was never produced; documents prepared, contained false facts, yet the witnesses, were asserting their contents; this reflects their falsehood; complainant was an accomplice in the eyes of law; government servants, were handpicked by the officials of CBI who were interested in success of trap.
RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 11/85 CBI vs Iqbal Singh & Anr.
16. A2 stated that as a matter of fact, he had come in Tehsil Mehrauli Sub Registrar Office to get certified copy of the sale deed of his house and he (A2) learnt that application for the same, used to be accepted at Tehsil Mehrauli Sub Registrar Office up till 01.00 pm and he (A2) had reached there around 02.30 pm. A2 also stated that after inquiring the procedure, he was with his (A2) motorcycle in parking when after hearing the commotion, he went a bit ahead towards the site of commotion; thereafter, he was overpowered, given beatings, his belongings were taken away including his mobile phone, despite his protest and he was taken to CBI office; his motorcycle was driven by some other person, which was handed over to his (A2) friend Sh. Ramesh; he (A2) was directed to call Mr. Ramesh at CBI office, from CBI office; no proceeding was conducted in his (A2) presence. A2 stated that mobile numbers 9212591761 and 9873681761 were his phone numbers. A2 further stated that he had not taken money from anyone nor kept the same at any place, including the black colour car. A 2 further stated that the shirt Ex PX1 and the vest Ex PX2 did not belong to him; the shirt Ex PX1 seen by him in the Court appeared as a brand new shirt. A2 further stated that RHW, LSSW, VW and CW were not washes of his hands or clothes. A2 further stated that no washes as alleged were taken nor sealed separately. As per A2, his specimen voice was never taken; report Ex PW10/A was false and incorrect. A2 stated that witnesses were handpicked witnesses; their deposition in the Court RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 12/85 CBI vs Iqbal Singh & Anr.
reflect that they were falsely deposing against him (A2) to implicate a public servant who at the relevant time was not known to him (A2); the complainant, Government servants and CBI officials were interested in success of their case, therefore, they had deposed falsely; documents prepared in the present case contained false facts. A2 further stated that as per the deposition of witnesses, some alleged conversation took place between him (A2) and public servant on spot in presence of the alleged complainant which was recorded on DVR, yet his (A2) specimen voice was not taken during investigation nor it was ever sent to CFSL for ascertaining as to whether the recorded conversation contained his voice or not.
DEFENCE EVIDENCE
17. Accused persons entered into their defence and examined Sh. R.C Gangwal; Sh Dushyant Singh and Sh Rakesh Kumar as DW1, DW2 and DW3 respectively as defence witnesses. As per DW1 DVRs remained in custody of Caretaker of ACB, CBI; Roznamcha and Visitor Register remained in the custody of Duty Officer of CBI. DW2, Caretaker of ACB, CBI, New Delhi deposed that in March 2009 there were four DVRs in ACB, CBI, New Delhi but no record was then maintained as to which DVR was given for use in a specific case and on return of DVR, no recording was left in DVR and DVR was given back in blank condition. DW3, LDC in ACB, CBI, New Delhi produced Roznamcha Register/General Diary of March 2009 in terms of which RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 13/85 CBI vs Iqbal Singh & Anr.
there was no entry regarding movement of PW15 on 12/03/2009 and 13/03/2009. DW3 also brought Visitor Register of March 2009 of ACB, CBI, New Delhi as per which there was no entry reflecting visit of PW7 in office of ACB, CBI, New Delhi on 12/03/2009 and 13/03/2009. Vide separate statements A1 and A2 closed their defence evidence on 04/02/2014.
ARGUMENTS
18. I have heard the arguments of Sh V.K Ojha, Ld. Public Prosecutor for CBI; Sh Harsh K. Sharma, Ld. Counsel for A1; Sh Manish Tiwari, Ld. Counsel for A2; accused persons and have perused the record including the evidence led and given my thoughts to the rival contentions put forth.
19. Ld. PP for CBI had argued that by the documentary evidence, recordings of the call conversations, transcripts of such call conversations and the deposition of prosecution witnesses, the prosecution has been able to prove that A1 being public servant and A 2, the private person had entered into criminal conspiracy; pursuant thereto A1 Halka Patwari had agreed to take Rs 1 lakh as part of the demanded illegal gratification from PW7; pursuant thereto on the fateful afternoon in the parking area in front of Tehsildar Office, Mehrauli accordingly A1 obtained Rs 1 lakh as illegal gratification through A2; so, A2 accordingly had abetted the offence punishable under Section 7 RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 14/85 CBI vs Iqbal Singh & Anr.
of Prevention of Corruption Act 1988 and committed the offence 12 of Prevention of Corruption Act 1988 pursuant to commission of offence under Section 120B of IPC while A1, the public servant had committed the offence punishable under Sections 7, 13 (2) read with 13 (1)(d) of Prevention of Corruption Act 1988 pursuant to commission of offence under Section 120B of IPC. Ld. PP for CBI has prayed for conviction of the accused persons accordingly relying upon the following precedents since prosecution has proved its case beyond reasonable doubt:
1. State of U.P vs Zakaullah, 1998 Cri.L.J 863 (SC);
2. Hazari Lal vs State (Delhi Admn.), 1980 Cri.L.J 564 (SC);
3. Gangabhavani vs Rayapati Venkat Reddy & Ors, 2013 Cri.L.J 4618 (SC);
4. C.M Sharma vs State of Andhra Pradesh,(2013) 2 SCC (Cri.) 89.
20. Ld. Counsel for A1 argued that the evidence on record proved framing and false implication of accused persons by investigating agency, at the behest of complainant as there are inherent material contradictions, severe infirmities and inherent improbabilities embodied in the evidence of prosecution witnesses which go to the root of the matter and shake the version of presented case of prosecution; the prosecution case cannot rest in view of such infirmities on its own legs. It was also argued that it was established by Ex PW3/B (D3) i.e., complaint; Ex PW15/DA (D4) i.e., FIR; Ex PW7/C (D5) i.e., verification memo that (1) there existed no demand of money on part of A1 prior to registration of the case; (2) friends of PW7 referred therein have not been cited nor examined; (3) as per Ex PW7/C, only one RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 15/85 CBI vs Iqbal Singh & Anr.
verification call was made at 1.30 pm from mobile number 9810624239 to mobile number 9811068259 of A1 and conversation of the same was recorded but Ex PW4/B (D27) i.e., call details record reflected two calls were made amongst aforesaid two mobile phone numbers, first at 1.30 pm and other at 2.27.39 pm, so, there is no disclosure about the second call; original DVR has not been produced; the transcription Ex PW7/H (D24) dated 22/06/2009 was not prepared from the sealed cassette, yet the CFSL was provided a copy of such conversation as on 16/03/2009 for which no explanation has been brought on record. Also has been argued that there is no proof of pretrap demand of money except oral statement of PW7 in Court. PW7 has narrated in deposition that A1 had demanded money from him personally, so he (PW7) had gone to CBI office which averment of PW7 is per contra to his complaint Ex PW7/B (D3) as well as the contents of Ex PW7/C (D5) i.e., verification memo; which makes version of PW7 self contradictory and not believable. Also was argued that PW7 deposed that on 13/03/2009 from CBI office two phone calls were made to A1 and after reaching Mehrauli Tehsil at 12.45 pm, three phone calls were made between him (PW7) and A1; all the calls and the spot conversations were recorded in DVR; after the second call at the spot PW7 received third call from A1 after 3 to 5 minutes, A1 came after 34 minutes and had conversation with PW7 and 34 minutes thereafter A2 came; whereas call detail records Ex PW4/B (D27) of mobile phone number 9811068259 bely such contentions of PW7; the transcript Ex PW7/H (D24) does not provide alleged conversation at RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 16/85 CBI vs Iqbal Singh & Anr.
spot. It was also argued that Ex PW3/B (D7) finds mention of recording of specimen voices of A1 and A2 at spot of Mehrauli Tehsil whereas the specimen voice of A2 is not a relied upon document; CFSL analysis on cassette Q2 could not detect voice of A1 visavis his specimen voice S1. It was also argued that admitted case of prosecution is that the shadow witness PW13 could not hear conversation of PW7 and A1 and A2 on spot; even the other witness PW11who was present with PW15 also could not hear any conversation. It was also argued that the bribe money was not recovered from the person of A1 but instead in the course of his evidence PW8 claimed the said money to be belonging to him. Also was argued that there was no transfer of any preassigned signal, reflecting of completion of transaction of bribe money; PW15 claimed that in order to know situation he made phone call to PW13 which is contrary to his statement under Section 161 Cr.P.C; as per Ex PW7/B (D3) there was no endorsement to verify any fact and the entire deposition of PW15 is against the contents of Ex PW15/DA (D4) i.e., FIR; documents D8 to D18 do not bear his signatures. Also was argued that the claim of PW15 of having made phone call to PW13 and corresponding contents of Ex PW3/B (D7) i.e., recovery memo stand belied by statement of PW11 who claimed to have witnessed the whole transaction while standing besides PW15, yet PW11 did not say that PW15 made a phone call to PW13 to know the situation. Also was argued that if PW15 could not see the situation and made a phone call to PW13 to enquire about situation, then PW11 also could not have seen the RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 17/85 CBI vs Iqbal Singh & Anr.
events as asserted by him in his deposition before the Court. Also was argued that the Trap Laying Officer (TLO) PW16 denied of having directed PW15 to make a call on mobile of PW13 though PW16 claimed that such a call was made as there was no response from PW13; however, PW16 also failed to provide the mobile phone numbers of PW15 or of PW13; even mobile phone number of PW13 is not mentioned in Ex PW7/D (D6) i.e., Handing Over Memorandum or in Ex PW3/B (D7) i.e., recovery memo prepared post trap. Also was argued that TLO PW16 had no knowledge whether PW7 was carrying alleged notice PW7/B (D
3) either on 12/03/2009 or on 13/03/2009. Also was argued that PW16 identified that after the conversation in portion X1 to X2 in Ex PW7/H (D24), the accused persons were challenged; this admission is a clear sign that at the relevant time it was apprehended by CBI that no money transaction had taken place; no explanation has come on record as to why Ex PW3/B (D7) i.e., recovery memo did not bear the signatures of PW16, excepting on the last page, though PW16 admitted that even on 20/08/2009 he saw Ex PW3/B and could not notice said fact. Also was argued that no explanation is on record as to (1) why seal of year 2007 was used for trap of year 2009; (2) why original DVR was not preserved or who and why transferred data from DVR to cassette; (3) why specimen voice of A1 only was sent to CFSL though specimen voices of both A1 and A2 were taken, even existence of specimen voice of A2 had not been disclosed in the documents or in chargesheet or in oral testimony of witnesses. It was also argued that serious ambiguities RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 18/85 CBI vs Iqbal Singh & Anr.
emerged in the cross examination of PW11 who repeatedly took shelter behind plea of "I do not remember" though he claimed to have seen the events and narrated in his examination; even in his cross examination PW11 admitted that he saw A1 after he was apprehended by CBI officials. It was also argued that these constituted fundamental infirmities in the case of prosecution, particularly when, the spot recording conversations does not reveal any conversation between PW7, A1 and A2. It was also argued that as per settled law, existence of all doubts in the case of prosecution should go in favour of the accused. Ld. Counsel for A1 has relied upon the followings precedents, praying for acquittal of accused:
1. Santa Singh vs State of Punjab, AIR 1956 SC 526;
2. Datar Singh vs The State of Punjab, 1975 SCC (Cri.) 530;
3. Union of India through Inspector, CBI vs Purnandu Biswas, JT 2005 (12) SC 505;
4. A. Subair vs State of Kerala, 2009 VII AD (SC) 117;
5. C.M. Girish Babu vs CBI, 2009 (2) LRC 93 (SC);
6. Banarsi Dass vs State of Haryana, III (2010) SLT 91;
7. Amarpal (Rajpal) vs State, 170 (2010) DLT 788 (DB);
8. P.Parasuramy Reddy vs State of A.P., 2011 (3) C.C. Cases (SC) 313;
9. Nilesh Dinkar Paradkar vs State of Maharashtra, II (2011) DLT (Cri.) 529 (SC);
10. State of Punjab vs Madan Mohan Lal Verma, Crl. Appeal No. 2052 of 2010 (SC).
21. Ld. Counsel for A2 argued that no evidence has been led by prosecution that before alleged time of recovery of money, A2 came into contact to A1 at any moment of time i.e., there is no oral or documentary evidence that there was any prior meeting of minds between A2 and A1 or that A2 acted as an agent of A1. It was also argued that in evidence of any of witnesses there is no fact is proved of RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 19/85 CBI vs Iqbal Singh & Anr.
agreement of A2 to accept illegal gratification on part of A1. It has also been argued that though the recovery memo mentions taking of specimen voices of both accused, but neither specimen voice of A2 was taken nor there is mention of any voice of A2 in transcript nor was heard of in the audio cassette Q2 containing the recorded conversations; so, the alleged talks inter se A2 and A1 or A2 with complainant do not form part of recorded conversations or transcript. Also was argued that in terms of Ex PW3/B (D7) i.e., recovery memo, the place of recovery keeps on shifting. Also was alleged that despite the fact that complainant PW7 alleges of hand washes of A1 being also taken at spot but these do not form part of record nor were produced. No cash memo or any other evidence has been brought on record as to how the alleged T shirt of A2 was procured/purchased. It was also argued that in terms of prosecution case, it was expected that, since A1 was in parking area and not in his office, when he allegedly made call to A2 to come, then in all probability, the talk must have embodied the location of A1 in the parking area and which cannot be so told by A1 to A2 in the span of four seconds only, in all probability. Also was argued that PW8 claimed of having brought the cash of Rs 1 lakh in plastic packet, in which plastic packet the money was produced in Court, which recovered money was claimed by PW8 to be belonging to him. Also was argued that in the course of deposition of PW15, he become witness to each and every fact though in terms of his statement under Section 161 Cr.P.C, he is witnessed to limited extent. It was also argued that the recordings of RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 20/85 CBI vs Iqbal Singh & Anr.
conversations were per se manipulated. Also was argued that it was admitted by PW16 TLO that PW15 was not searched before leaving for trap while even PW15 or any other trap team member did not follow the pre decided signals/instructions required to be given on completion of the transaction of bribe. Ld. Counsel for A2 prayed that A2 be acquitted since the prosecution has failed to prove its case against him beyond reasonable doubt.
RELEVANT LAW
22. To constitute a conspiracy, meeting of minds of two or more persons for doing an illegal act or an act by illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every detail of the conspiracy. Neither is it necessary that every one of the conspirators takes active part in the commission of each and every conspiratorial acts. The agreement amongst the conspirators can be inferred by necessary implication. In most of the cases, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. The existence of conspiracy and its objects are usually deduced from the circumstances of the case and the conduct of the accused involved in the conspiracy. Criminal conspiracy is an independent offence in the Penal Code. The unlawful agreement is sine qua non for constituting offence under the Penal Code and not an accomplishment. Conspiracy consists of the scheme or adjustment between two or more persons which may be express or implied or partly RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 21/85 CBI vs Iqbal Singh & Anr.
express or partly implied. Even Section 10 of the Evidence Act introduces the doctrine of agency and if the conditions laid down therein are satisfied, the act done by one is admissible against the co conspirators. Reliance placed upon (1) Shivanarayan v. State of Maharashtra, AIR 1980 SC 439; (2) State (NCT of Delhi) vs. Navjot Sandhu, AIR 2005 SC 3820; (3) State of Maharashtra and Others vs Som Nath Thapa and Others, (1996) 4 SCC 659.
23. The essential ingredients of Section 7 of Prevention of Corruption Act 1988 are that (i) the accused was a public servant; (ii) accused accepted or obtained the gratification for himself or for any other person; (iii) the said gratification was a motive or reward (a) for doing or forbearing to do any official act or (b) for showing or forbearing to show, in the exercise of his official function, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person.
24. The essential ingredients of Section 12 of Prevention of Corruption Act 1988 are that accused abets offence punishable under (a) Section 7 of Prevention of Corruption Act 1988 or (b) Section 11 of Prevention of Corruption Act 1988 irrespective of the fact whether or not such offence is committed in consequence of such abetment.
RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 22/85 CBI vs Iqbal Singh & Anr.
25. The essential ingredients of Section 11 of Prevention of Corruption Act 1988 are that (i) accused was a public servant; (ii) accused accepted or obtained or agreed to accept or obtain a valuable thing without consideration or for an inadequate consideration knowing it to be inadequate; (iii) the person giving the thing must be a person concerned or interested in or related to the person concerned in any proceeding or business transacted by such public servant, or having any connection with the official function of such public servant or of any public servant to whom such public servant is subordinate and (iv) accused must have the knowledge that the person giving the thing is so concerned or interested or related.
26. The essential ingredients of Section 13 (1) (d) of Prevention of Corruption Act 1988 are (i) the accused was a public servant; (ii) accused used corrupt or illegal means or otherwise abused his position as such public servant and (iii) accused obtained valuable thing(s) or pecuniary advantage for himself or for any other person.
27. In Section 13(1) (d) of Prevention of Corruption Act 1988, the word used is 'obtained'. The Apex Court in the case of C.K. Damodaran Nair v Govt. of India [(1997) 9 SCC 477] had the occasion to consider the word 'obtained' used in Section 5 of Prevention of Corruption Act 1947, which is now Section 13(1)(d) of Prevention of Corruption Act 1988. It was held in para 12 thus:
RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 23/85 CBI vs Iqbal Singh & Anr.
"12. The position will, however, be different so far as an offence under Section 5 (1)(d) read with Section 5(2) of the Act is concerned. For such an offence prosecution has to prove that the accused `obtained' the valuable thing or pecuniary advantage by corrupt or illegal means or by otherwise abusing his position as a public servant and that too without the aid of the statutory presumption under Section 4(1) of the Act as it is available only in respect of offences under Section 5(1)(a) and (b) and not under Section 5(1)(c), (d) or (e) of the Act. `Obtain' means to secure or gain (something) as the result of request or effort (Shorter Oxford Dictionary). In case of obtainment the initiative vests in the person who receives and in that context a demand or request from him will be a primary requisite for an offence under Section 5(1) (d) of the Act unlike an offence under Section 161 IPC, which, as noticed above, can be,established by proof of either `acceptance' or `obtainment' ".
28. The core question that needs to be seen is as to whether there is sufficient legal evidence on record for the prosecution to prove its case beyond reasonable doubt against arraigned accused for the offences charged.
29. In the case of Zakaullah (supra), wherein complainant's evidence was jettisoned on the mere ground that since he has a grouse against the delinquent public servant, he might falsely have implicated the latter; such a premise was held to be fraught with the consequence that no bribe given can get away from such stigma in any graft case. It was also held that even evidence of the trap laying officer can be acted upon without the help of any corroboration.
30. In the case of Hazari Lal (supra), it was held that where RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 24/85 CBI vs Iqbal Singh & Anr.
the evidence of police officer who laid the trap was found entirely trustworthy, there was no need to seek any corroboration. It was further held that there is no rule of prudence, which has crystallized into a rule of law, nor indeed any rule of prudence, which requires that the evidence of such officers should be treated on the same footing as evidence of accomplices and there should be insistence on corroboration. In the facts and circumstances of a particular case a Court may be disinclined to act upon the evidence of such an officer without corroboration, but, equally, in the facts and circumstances of another case the Court may unhesitatingly accept the evidence of such an Officer. It is all a matter of appreciation of evidence and on such matters there can be no hard and fast rule, nor can there be any precedential guidance.
31. In the case of Gangabhavani (supra), it was held that in case there are minor contractions in the depositions of the witnesses the same are bound to be ignored as the same cannot be dubbed as improvements and it is likely to be so as the statement in the Court is recorded after an inordinate delay. Also was held that, in case the contractions are so material, that the same go to the root of the case, materially affect the trial or core of the prosecution case, the Court has to form its opinion about the credibility of the witnesses and found out as to whether their depositions inspire confidence. Also was held that the defence cannot rely on nor can the Court base its finding on a particular fact or issue on which the witness has not made any statement in his RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 25/85 CBI vs Iqbal Singh & Anr.
examinationinchief and the defence has not crossexamined on the said aspect of the matter.
32. Relying upon the law laid in case of Dalpat Singh vs State of Rajasthan, AIR 1969 SC 17, it was held by the Apex Court in the case of C.M Sharma (supra) that one who gave bribe, cannot be said to be an accomplice as the same was extorted from him.
Also was held that "corroboration of evidence of a witness is required when his evidence is not wholly reliable. On appreciation of evidence, witnesses can be broadly categorised in three categories viz. unreliable, partly reliable and wholly reliable. In case of a partly reliable witness, the court seeks corroboration in material particulars from other evidence. However in a case in which a witness is wholly reliable, no corroboration is necessary. Seeking corroboration in all circumstance of the evidence of a witness forced to give bribe may lead to absurd result. Bribe is not taken in public view and, therefore, there may not be any person who could see the giving and taking of bribe. As in the present case, a shadow witness did accompany the contractor but the appellant did not allow him to be present in the chamber. Acceptance of this submission in abstract will encourage the bribetaker to receive illegal gratification in privacy and then insist for corroboration in case of prosecution. Law cannot countenance such a situation."
33. In the case of Santa Singh (supra), it was held that the draftsman who prepared sketch map of place of occurrence after ascertaining from witnesses detailing the locations of assailant, victim and witnesses after taking measurements and further witnesses corroborate his statement then the evidence of the draftsman is legal as RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 26/85 CBI vs Iqbal Singh & Anr.
well as admissible. It was also held that it is not unusual to have a plan drawn up by a draftsman and this is not done to evade the provisions of Section 162 of the Code of Criminal Procedure.
34. In the case of Datar Singh (supra), it was held that "It is often difficult for courts of law to arrive at the real truth in criminal cases. The judicial process can only operate on the firm foundations of actual and credible evidence on record. Mere suspicion or suspicious circumstances, cannot relieve the prosecution of its primary duty of proving its case against an accused person beyond reasonable doubt. Courts of justice cannot be swayed by sentiment or prejudice against a person accused of the very reprehensible crime of patricide. They cannot even act on some conviction that an accused person has committed a crime unless his offence is proved by satisfactory evidence of it on record. If the pieces of evidence on which the prosecution chooses to rest its case are so brittle that they crumble when subjected to close and critical examination so that the whole superstructure built on such insecure foundations collapses, proof of some incriminating circumstances, which might have given support to merely defective evidence cannot avert a failure of the prosecution case."
35. In the case of Purnandu Biswas (supra), it was held that "30. In State of U.P vs. Zakaullah [(1998) 1 SCC 557], whereupon Mr. Sharan placed reliance. Thomas. J. clearly stated that evidence of such a witness would require the court to scrutinize it with a greater care, but it does not call for outright rejection of his evidence at the threshold.
.............................
32. In B. Hanumantha Rao vs. State of UP.[(1993) Supp 1 SCC 323], the conviction was based on concurrent findings of fact and appreciation of evidence. No legal principle was laid down in the said decision except stating that the circumstances pointed out therein had been considered by the High Court and the same did not improbablise the demand and acceptance.
...................................
RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 27/85 CBI vs Iqbal Singh & Anr.
37. M. Narsinga Rao vs. State of A.P. [(2001) 1 SCC 691], relied upon by Mr. Sharan, was rendered having regard to the contention raised therein that it was not enough that some currency notes were handed over to the public servant to make it as acceptance of gratification; prosecution has a further duty to prove that what was paid amounted to gratification. Such a question does not arise for consideration in this case."
36. In the case of A. Subair (supra), it was held that "10. The legal position is no more res integra that primary requisite of an offence under Section 13(1)(d) of the Act is proof of a demand or request of a valuable thing or pecuniary advantage from the public servant. In other words, in the absence of proof of demand or request from the public servant for a valuable thing or pecuniary advantage, the offence under Section 13(1)(d) cannot be held to be established.
........................................
19. It needs no emphasis that the prosecution has to prove the charge beyond reasonable doubt like any other criminal offence and the accused should be considered innocent till it is established otherwise by proper proof of demand and acceptance of the illegal gratification, the vital ingredient, necessary to be established to procure a conviction for the offences under consideration."
37. In the case of C.M. Girish Babu (supra), it was held that' "16. In Suraj Mal v. State (Delhi Admn.), (1979) 4 SCC 725, this court took the view that mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot proved the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe.
........................................
19. It is well settled that the presumption to be drawn under RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 28/85 CBI vs Iqbal Singh & Anr.
Section 20 is not an inviolable one. The accused charged with the offence could rebut it either through the crossexamination of the witnesses cited against him or by adducing reliable evidence. If the accused fails to disprove the presumption the same would stick and then it can be held by the Court that the prosecution has proved that the accused received the amount towards gratification.
20. It is equally well settled that the burden of proof placed upon the accused person against whom the presumption is made under Section 20 of the Act is not akin to that of burden placed on the prosecution to prove the case beyond a reasonable doubt. "It is well established that where the burden of an issue lies upon the accused he is not required to discharge that burden by leading evidence of proof his case beyond a reasonable doubt. That is, of course, the test prescribed in deciding whether the prosecution has discharged its onus to prove the guilt of the accused; but the same test cannot be applied to an accused person who seeks to discharge the burden placed upon him under Section 4 under the Prevention of Corruption Act. It is sufficient if the accused person succeeds in proving a preponderance of probability in favour of his case. It is not necessary for the accused person to prove his case beyond reasonable doubt or in default to incur verdict of guilt. The onus of proof lying upon the accused person is to prove his case by a preponderance of probability. As soon as he succeeds in doing so, the burden shifts to prosecution which still has to discharge its original onus that never shifts, i.e., that of establishing on the whole case the guilt of the accused beyond a reasonable doubt." (See Jhangan v. State, 1966 (3) SCR 736)."
38. In the case of Banarsi Dass (supra), it was held that to constitute an offence under Section 161 of IPC it is necessary for the prosecution to prove that there was demand of money and the same was voluntarily accepted by the accused.
RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 29/85 CBI vs Iqbal Singh & Anr.
39. In the case of P. Parasuramy Reddy (supra), it was held that the circumstance by itself may not be able to establish that money was demanded and it was accepted as bribe. It could have been the possibility that the complainant had touched the currency notes and had shaken hand with the accused or it could be that any one of the investigating officer or the member of the raiding party had touched the fingers of the accused. That circumstance itself cannot be ruled out.
40. In the case of Madan Mohan Lal Verma (supra), it was held that "The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the Act 1988. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. Hence, the burden rests on the accused to displace the statutory presumption raised under Section 20 of the Act 1988, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the Act 1988. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. In a proper case, the court may look for independent corroboration before RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 30/85 CBI vs Iqbal Singh & Anr.
convicting the accused person. (Vide: Ram Prakash Arora v. The State of Punjab AIR 1973 SC 498; T. Subramanian v. The State of T.N., AIR 2006 SC 836; State of Kerala & Anr. v. C.P. Rao, (2011) 6 SCC 450; and Mukut Bihari & Anr. v. State of Rajasthan, (2012) 11 SCC
642)."
APPRECIATION OF EVIDENCE
41. PW1 Sh. D.M. Spolia, Principal Secretary, Finance, Government of Delhi had accorded sanction Ex PW1/A dated 12/07/2010 for prosecution of A1 under Section 19 of the Prevention of Corruption Act after perusal of the records, furnished by the CBI along with the request letter, since PW1 was the authority competent to remove A1, the Halka Patwari from his office.
42. PW12 Sh R.S Sehrawat, Naib Tehsildar, Tehsil Hauz Khas deposed that the writing in pages (1) number 132 Ex PW12/A; (2) number 136 Ex PW12/B of register Ex PX (D30) was of A1 and as per Ex. PW 12/A, there was no mention of any crops cultivated in the land described therein in respect of the number of the field 45/1 in the name of PW7, tenure holder. As per Ex. PW 12/B, there was no mention of any crops cultivated in the land described therein in respect of the number of the field 4/2 in the name of PW7, tenure holder.
43. Particulars of the relevant calls made between mobile number 9811068259 (in the name of Baljeet Singh allegedly used by A1 RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 31/85 CBI vs Iqbal Singh & Anr.
as per PW2, and seized from A1) and mobile number 9810624239 (used by PW7) as per Call Detail Records (CDRs) Ex PW4/B (D27) proved on record by PW4 are:
S. Date Time Duration Call made from Call made to Page No mobile number mobile number number 1 12/03/09 13:30:50 109 9810624239 9811068259 1 2 12/03/09 14:27:39 22 9810624239 9811068259 1 3 13/03/09 12:50:24 21 9810624239 9811068259 2 4 13/03/09 12:53:01 42 9810624239 9811068259 2 5 13/03/09 15:11:43 11 9810624239 9811068259 3 6 13/03/09 15:15:22 21 9811068259 9810624239 3
44. Particulars of the relevant calls made between mobile number 9811068259 (allegedly used by A1) and mobile number 9810624239 (allegedly used by PW7) as per Call Detail Records (CDRs) part of Ex PW5/B (D29) proved on record by PW5 are:
S. Date Time Duration Call made from Call made to Page No mobile number mobile number number 1 12/03/09 13:30:49 109 9810624239 9811068259 3 2 12/03/09 14:27:16 22 9810624239 9811068259 4 3 13/03/09 12:50:25 21 9810624239 9811068259 7 4 13/03/09 12:53:02 42 9810624239 9811068259 7 5 13/03/09 15:11:43 11 9810624239 9811068259 8 6 13/03/09 15:14:59 22 9811068259 9810624239 8 TAPE RECORDED CONVERSATION
45. In the case of Dharambir vs. CBI, 148 (2008) DLT 289, it RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 32/85 CBI vs Iqbal Singh & Anr.
was inter alia held that "(i) As long as nothing at all is written on to a hard disc and it is subjected to no change, it will be a mere electronic storage device like any other hardware of the computer. However, once a hard disc is subject to any change, then even if it is restored to the original position by reversing that change, the information concerning the two steps, viz., the change and its reversal will be stored in the subcutaneous memory of the hard disc and can be retrieved by using software designed for that purpose. Therefore, a hard disc that is once written upon or subjected to any change is itself an electronic record even if does not contain any accessible information at present. In addition there could be active information available on the hard disc which is accessible and convertible into other forms of data and transferable to other electronic devices. The active information would also constitute an electronic record.
(ii) Given the wide definition of the words 'document' and 'evidence' in the amended Section 3 the EA, read with Sections 2 (o) and (t) IT Act, a Hard Disc which at any time has been subject to a change of any kind is an electronic record would therefore be a document within the meaning of Section 3 EA.
(iii) The further conclusion is that the hard disc in the instant cases are themselves documents because admittedly they have been subject to changes with their having been used for recording telephonic conversations and then again subject to a change by certain of those files being copied on to CDs. They are electronic records for both their latent and patent characteristics."
46. It was also held in aforesaid case that the accused therein had a right of inspection of the hard disc since making mirror image copies of entire hard discs was uncalled for; it was also directed that the four hard discs be brought back from the forensic laboratory and be kept in either Cyber Crime Section of CBI or any other similar convenient place but under the control of the Special Judge CBI and original RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 33/85 CBI vs Iqbal Singh & Anr.
recorded conversations of relevant intercepted telephone calls relied upon by CBI in these four hard discs were to be played before the Special Judge CBI in the presence of accused or their representatives, the Counsel for the parties subject to the directions of Special Judge CBI.
47. In the case of Ram Singh vs. Col. Ram Singh, AIR 1986 SC 3 it was held that:
"A tape recorded statement is admissible in evidence subject to the following conditions:
(1) The voice of the speaker must be identified by the maker of the record or other persons recognising his voice. Where the maker is unable to identify the voice, strict proof will be required to determine whether or not it was the voice of the alleged speaker.
(2) The accuracy of the tape recorded statement must be proved by the maker of the record by satisfactory evidence direct or circumstantial.
(3) Possibility of tampering with or erasure of any part of the tape recorded statement must be totally excluded.
(4) The tape recorded statement must be relevant.
(5) The recorded cassette must be sealed and must be kept in safe of official custody.
(6) The voice of the particular speaker must be clearly audible and must not be lost or distorted by other sounds or disturbances."
48. In the case of Mahabir Prasad Verma vs. Dr. Surinder RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 34/85 CBI vs Iqbal Singh & Anr.
Kaur, AIR 1982 SC 1043, it was held that tape recorded conversations can only be relied upon as corroborated evidence of conversation deposed by any of the parties to the conversation and in the absence of evidence of any such conversation, the tape recorded conversation is indeed no proper evidence and cannot be relied upon.
49. The conditions laid for admissibility of tape recorded statement in evidence in the cases of Ram Singh (Supra) and Mahabir Prasad Verma (Supra), found approval of the Supreme Court in the case Nilesh Dinkar Paradkar vs. State of Maharashtra, JT 2011 (3) SC 429.
50. In his report Ex PW9/B (D25) dated 31/03/2010, PW9 Dr. Rajinder Singh, Incharge, Director, CFSL CBI, New Delhi inter alia observed that the cassette marked Ex Q2 had recordings of total durations 05 minutes and 13 seconds approximately on side 'A'; no common clearly audible sentences/words of Sh Iqbal Singh (A1) could be detected in the questioned cassette marked exhibit 'Q2' with respect to the specimen voice recorded in cassette marked exhibit 'S1' as the questioned voice of Sh. Iqbal Singh (A1) is distorted and unintelligible due to highly interfering background noise; hence, the same could not be considered for auditory and voice spectrographic examination.
RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 35/85 CBI vs Iqbal Singh & Anr.
51. Ex PW11/F (D16) i.e., Specimen Voice Recording Memo dated 13/03/2009 prepared by PW16 TLO finds mention (1) at portion X1 to X2 as "Thereafter, some lines and words were selected from the questioned recorded conversations of accused Iqbal Singh (A1), Halqa Patwari, Mehrauli Tehsil"; (2) at portion X3 to X4 as "Thereafter, accused Iqbal Singh (A1) was asked to read over the said lines and words which was recorded in the said digital voice recorder in the presence of above mentioned independent witnesses". In terms thereof the audio cassette marked as S1 contained alleged specimen voices of A1 which were selected from the questioned recorded conversations of A1, which A1 accordingly read and were recorded in cassette S1. The averments in Ex PW11/F (D16) and above elicited averments of the forensic report Ex PW9/B (D25) are contradictory inter se and bring into fore the possibility of tampering and manipulations in cassette Ex S1 purported to be containing the specimen voice of A1 and/or cassette Ex Q2 purported to be containing the questioned recorded conversations of A1.
52. In the course of evidence of PW7 on 03/05/2013, when the cassette Ex PW11/A (previously Ex Q1) was played on the tape recorder brought by official of Malkhana ACB CBI New Delhi, it was submitted by PW7 that the some of the portions of conversations recorded purportedly in voices of PW7 and A1 were not audible, there were disruptions and while voice of PW7 therein was more clearer and the RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 36/85 CBI vs Iqbal Singh & Anr.
voice of A1 sometimes got static, so the recording was of poor quality. When cassette Ex PW7/J (Q2) was played, PW7 further stated that some of portions of conversations purportedly between him (PW7) and A1 were not audible, there were disruptions and while his voice therein was more clearer but the voice of A1 sometimes got static, so the recording was of poor quality. PW7 also stated that recording in cassette Ex PW7/J (Q2) was more poorer in quality than the recording in the cassette Ex PW11/A (Q1).
53. In the course of evidence of IO PW17 on 02/01/2014, one cassette Ex PW7/J (Q2) was played on the tape recorder brought by official of Malkhana ACB CBI New Delhi, it was submitted by PW17 that after the introductory voices of PW13 and PW11 there was apparent noise in the recordings as well as abrupt spikes, drop outs, pause. PW17 voluntarily asserted that when he had heard the recorded conversations from the investigation copy of cassette Ex PW7/J (Q2) it took him more time to understand it as there was great noise in the recordings and he considered the abrupt spikes in the noise itself.
54. It is admitted case of prosecution that originally the alleged recordings of conversations inter se PW7 and A1 on 12/03/2009 as well as on 13/03/2009 were recorded in the Digital Voice Recorder (DVR) from which it were transferred on 12/03/2009 to cassette Ex PW11/A (Q1) as well as on 13/03/2009 to cassette Ex PW7/J (Q2). Said primary RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 37/85 CBI vs Iqbal Singh & Anr.
evidence i.e., Digital Voice Recorder was neither sealed nor seized nor sent to forensic expert for expert opinion. Forensic Voice Examination Report Ex PW9/B (D25) of forensic expert PW9 at page 2 finds mention inter alia of receipt of copy of transcription of 24 pages along with the exhibits on 19/03/2009 with letter dated 16/03/2009 of SP CBI, ACB New Delhi. Transcription Ex PW7/H (D24) dated 22/06/2009 is in 15 sheets. Copy of transcription sent to CFSL on 19/03/2009 has not been placed on record but contains nine more sheets than of the transcription Ex PW7/H (D24). Even at the stage of arguments on the point of charge when the audio cassettes Ex PW11/A (Q1) and Ex PW7/J (Q2) were played by the officials of CBI, then it was observed that some of their portions recorded were not audible, there were disruptions and even the recording was of poor quality, which finds mention in the order of charge. In the course of evidence of prosecution, as elicited above, it has been observed that (1) in Ex PW11/A (previously Ex Q1) some of the portions of conversations recorded were not audible, there were disruptions and while voice of PW7 therein was more clearer and the voice of A1 sometimes got static, so the recording was of poor quality; (2) in cassette Ex PW7/J (Q2) some of portions of conversations were not audible, there were disruptions and while voice of PW7 therein was more clearer but the voice of A1 sometimes got static, so the recording was of poor quality. Even forensic expert PW9 observed in his report Ex PW9/B (D25) that the questioned voice of A1 in cassette Ex PW7/J (Q2) was distorted and unintelligible due to highly interfering RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 38/85 CBI vs Iqbal Singh & Anr.
background noise because of which it could not be considered for auditory and voice spectrographic examination. Accordingly, in view of the law laid in the case of Ram Singh (supra), the tape recorded statements in cassettes Ex PW11/A (Q1) and Ex PW7/J (Q2) are not admissible in evidence since firstly, their accuracy has not been proved by satisfactory evidence, direct or circumstantial; secondly, possibility of tampering with or erasure of part of tape recorded statement has not been totally excluded; thirdly, the voices are not clearly audible nor are without distortions but are in the midst of apparent noise in the recordings as well as abrupt spikes, drop outs, pause existing therein. Production of original DVR used in the recordings would have been beneficial since it was primary evidence and contained clearly audible voices without distortions, other sounds or disturbances. The prosecution cannot take any benefit from the corroborative evidence of tape recorded conversations accordingly.
DEMAND OF BRIBE
55. Complainant PW7 Sh Hitesh Chadha deposed that on 08/03/2009 A1 brought notice Ex PW7/A (D22) under Section 81 of DLR Act at his farm house and served the said notice to him. After receiving the notice, PW7 inquired about the meaning of said notice from known person i.e., one Sh Jitender Khatana, Real Estate Agent from whom PW7 had bought the farm. PW7 came to know that the aforesaid notice was for misuse of the farm house for residential purpose. After RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 39/85 CBI vs Iqbal Singh & Anr.
2/3 days, PW7 made call from his mobile phone number 9810624239 to A1 to resolve the aspect of notice as to why he had sent it as PW7 was still growing seasonal vegetables and seasonal pulses in his farm house. As per PW7, in said call conversation A1 made demand of Rs 4 lakhs to remove the aforesaid notice; then PW7 approached the CBI on 12/03/2009.
56. Complaint Ex PW7/B (D3); portion 'A' to 'B' of statement Ex PW7/DA under Section 161 Cr.P.C dated 30/03/2009 of PW1 find no mention of (1) A1 having met PW7 on 08/03/2009 at farm house of PW7; (2) A1 having served notice Ex PW 7/A (D22) personally upon PW7; (3) after 2/3 days PW7 having made call from his mobile phone to A1 to resolve the aspect of notice; (4) then A1 having made demand of Rs 4 lakhs to remove the aforesaid notice. On these facts, PW7 was confronted and contradicted with Ex PW7/B and Ex PW7/DA. Per contra, Ex PW7/B (D3) finds mention at portion 'D' to 'E' after inquiry of PW7 from his friends about the disposal of the notice that "then I was conveyed that Sh Iqbal Singh, halka Patwari, takes a bribe of Rs 4 (four) lacs to settle such matters". Also there is mention that PW7 was told to contact A1 directly on 12/3/2009 otherwise A1 will take further action in the notice against PW7 and will not settle the matter as well as not conduct the Girdawari properly and favourably. In Ex PW7/B (D3) dated 12/03/2009 there is simple mention of service of notice under Section 81 DLR Act on 08/03/2009; but there is no mention of any RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 40/85 CBI vs Iqbal Singh & Anr.
telephonic conversation in the period between 08/03/2009 and 12/03/2009 between A1 and PW7 or in such conversations A1 having conveyed any demand of Rs 4 lakhs as bribe by A1 from PW7 to settle said notice and Girdawari favourably. Accordingly, in Court PW7 not only made considerable improvements from the version contained in his complaint and statement under Section 161 Cr.P.C but infact introduced new facts regarding alleged demand of Rs 4 lakhs as bribe attributed to A1. As per PW7, he had met PW15 on 12/03/2009 in CBI office and he gave his complaint Ex PW7/B (D3) to PW15, upon which PW15 took PW7 to his SP. Even the officers of CBI including PW15 did not whisper of having been told in any unequivocal terms by PW7 of A1 having himself demanded sum of Rs 4 lakhs as bribe from PW7 before he reached CBI office or A1 having ever met PW7 before PW7 reached CBI office on 12/03/2009.
VERIFICATION PROCEEDINGS ON 12/03/2009
57. Ex PW7/C (D5) i.e., Verification Memo is scribed by PW14, the verifying officer and it finds mention in testimony of PW14 that on receipt of endorsement of his SP, he (PW14) carried out the verification of allegations in the complaint Ex PW7/B (D3) in the presence of independent witness PW11 and complainant PW7 wherein on directions PW7 made a call from his mobile phone to mobile phone of A1 in CBI office on 12/03/2009 in which conversation A1 directed PW7 to come to his office and talk directly as it was not safe according RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 41/85 CBI vs Iqbal Singh & Anr.
to him to talk over telephone regarding such things. Such conversation was recorded in a Digital Voice Recorder (DVR) as well as simultaneously heard by PW11 and PW14.
58. PW7 deposed that on 12/03/2009 when he reached CBI office, he was guided to office of PW15 and had conversation with PW15, told him all facts and gave his complaint Ex PW7/B (D3) to PW15, upon which PW15 took him to his SP. PW7 further deposed that PW15 asked him to make a call from his mobile phone to mobile phone of A1 and he (PW7) had made a call from his mobile phone to mobile phone of A1 in the presence of a witness of CBI and in the conversation A1 told him (PW7) that these things are not to be discussed on conversation on phone and A1 asked him (PW7) to come to his office and such conversation was done on mobile phone when it was on "ON" mode and was recorded in a DVR of CBI. As per PW7, the recorded conversation was played before superior officer by PW15 and thereafter such conversation was copied and put on another equipment in CBI office. PW7 did not whisper of the such verification proceedings done in office of CBI to have been done by PW14 or even in the presence of PW14 but simply stated that all these proceedings were done by PW15.
59. In terms of Ex PW7/C (D5) and version of PW14, in the afternoon of 12/03/2009 PW14, PW11 and PW7 reached office of A1. As per Ex PW7/C, the independent witness PW11 was directed to follow RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 42/85 CBI vs Iqbal Singh & Anr.
the complainant PW7 and to remain at some distance from where he could see and hear the conversation between the two. As per PW7, in CBI office on 12/03/2009, PW15 had put DVR in his vest. Also as per PW7, while PW15 was in his office, he (PW7) with the witness i.e., PW11 went to Mehrauli Tehsil to meet A1 on 12/03/2009 and reached there at approximately 3 or 4 pm. PW7 made a call from his mobile phone to mobile phone of A1 asking him where he (PW7) had to see him, upon which A1 asked PW7 to wait where he was and he (A1) will come there. As per PW7, A1 then came there and at that time the witness i.e., PW11 was at the distance of about 100 feet from him and on arrival of A1, PW7 started negotiating the amount of demand with A1, then A1 reduced demand to Rs 2.25 lakhs from Rs 4 lakhs. PW7 told A1 that he would revert to A1 after speaking to his father and along with the said witness came back to CBI office, where PW15 took the DVR from PW7, heard the recorded conversation, copied it and put it in some equipment; some equipment was sealed. As per PW7, there in CBI office he signed somewhere and the witness had also signed and PW15 told him (PW7) to come on the following day with money i.e., Rs 1 lakh.
60. As per PW11, on 12/03/2009 at around 1.30 pm or 2 pm he (PW11), PW7 and PW14 reached Mehrauli Tehsil where PW14 put a tape recorder on "ON" mode inside shirt of PW7 after alighting from vehicle and then PW7 went to room of A1. As per PW11, after sometime PW7 and A1 came out and on a side had talk. After sometime, RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 43/85 CBI vs Iqbal Singh & Anr.
PW7 and PW11 went in the vehicle of CBI where PW14 was sitting and PW14 took the tape recorder from PW7 and put it on "OFF" mode and from the said place of Mehrauli they returned to CBI office where they reached at about 3 or 3.30 pm. As per PW11, in the office of CBI recorded voice in the tape recorder was heard, transferred to Digital Tape Recorder, then the recorded voice was transferred in a cassette Ex PW11/A (Q1), which cassette was sealed by CBI official along with the Inlay card Ex PW11/B and cover Ex PW11/D with the aid of cloth piece Ex PW11/C.
61. As per PW14, as A1 had called PW7 to his office, the verification team comprising of PW14, PW11 and PW7 reached office of A1 at around 12.30 pm or 1 pm; the DVR was put in switch "ON" mode and PW7 was directed to go and have a talk with A1. As per PW14, PW7 accompanied by PW11 went ahead and had a talk with A1 while PW14 waited at some safer distance at entrance gate in the office premises of A1, from where PW14 could see A1 and PW7 conversing. As per PW14, after sometime PW7 returned back; DVR was taken back from PW7 and put to switch "OFF' mode and the team left the spot and after travelling a distance of about 500800 meters on the road, the DVR was played in the vehicle; recorded conversation confirmed the demand of A1 of Rs 2.5 lakhs for showing favour to PW7 in the matter of unauthorized use of agricultural land situated in the farm house of complainant. As per PW14, the team returned back to CBI office and RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 44/85 CBI vs Iqbal Singh & Anr.
PW14 prepared Ex PW7/C (D5) i.e., verification memo; recorded conversation in DVR was transferred to cassette Q1 which was sealed and seal after use was handed over to PW11 for safe custody and further production as and when required. As per PW14, before sealing signatures of PW11 were taken on the cassette Q1 and an investigation copy of the cassette was also prepared. In the course of his cross examination by Ld. PP for CBI since PW14 partly resiled, PW14 stated that from the recorded conversation he gathered that A1 had reduced the sum to an extent of Rs 25,000/ making the exact demanded amount Rs 2.25 lakhs.
62. In the entire narration of sequence of events of verification proceedings by PW7 there is no whisper of presence of PW14 or any verification done by PW14 or any role played by PW14 in the verification proceedings. Instead of deposing about the verification done by PW14, PW7 categorically stated that in the CBI office on 12/03/2009 the verification was done by PW15 and only he (PW7) and the witness of CBI had gone to office of A1 in the afternoon of 12/03/2009. FIR Ex PW15/DA finds no mention of verification proceedings having been done by PW14 or even names of PW14 and/or PW15.
PRE TRAP PROCEEDINGS ON 13/03/2009
63. PW7 deposed that he reached CBI office on 13/03/2009 at 10 or 10.30 am and met PW15 and PW16; PW16 introduced PW7 with RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 45/85 CBI vs Iqbal Singh & Anr.
other two witnesses i.e., PW11 and PW13. As per PW7, PW16 asked him to hand over the money i.e., Rs 1 lakh brought by him. PW7 handed over the GC notes Ex PX4/1 to 100 and Ex PX5/1 to 100, which were brand new and in two wads. As per PW7, PW15 sprinkled powder on said GC notes and made somebody touch the said notes and then water was put on finger of said person, upon which water turned pink. Said GC notes were kept in the hip pockets of trousers of PW7. As per PW7, on directions, he made call to mobile phone of A1 at around 11 am to fix up time with him and kept his mobile on speaker mode and the said conversation was recorded in DVR. As per PW7, PW15 placed DVR in 'ON' mode in his (PW7) vest instructing PW7 that further conversation with A1 is to be recorded. As per PW7, he signed documents Ex PW7/D (D6) i.e., Handing Over Memorandum dated 13/03/2009 before leaving CBI office. As per PW7, he along with CBI team left CBI office at around noon on 13/03/2009.
64. As per PW11, he reached CBI office on 13/03/2009 at 10 am and went to room of PW15 from where PW15 took him, PW7 and PW13 to PW16 in other room of CBI office where PW16 and 2/3 other persons were seated and there PW15 told all facts. As per PW11, PW7 produced GC notes Ex PX4/1 to 100 and Ex PX5/1 to 100; a CBI Officer had put some powder on such notes; on instructions of CBI officers PW11 touched his fingers to said GC notes and washed his hands in clean water in glass which turned pink. Said water was thrown RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 46/85 CBI vs Iqbal Singh & Anr.
away. Ex PW7/D (D6) was prepared. The wads of GC notes were put by PW11 in pant pockets of PW7. PW11 washed his hands. As per PW11, at around 2 pm or 2.15 pm entire team left CBI office for Mehrauli Tehsil.
65. As per PW13, he reached CBI office on 13/03/2009 at around 10 am, met duty officer and after one hour was taken to PW15; after sometime PW7 came and PW11 was already sitting with PW15; there PW13 was shown complaint of PW7 and told about it and PW7 stated about his case. As per PW13, on instructions of CBI officers, PW7 made a call to A1 and there was a conversation held between them regarding which PW7 told that A1 had called PW7 after lunch near Tehsil Mehrauli. As per PW13, a trap team was constituted; Inspector Prem Nath gave demonstration by putting powder on GC notes Ex PX 4/1 to 100 and Ex PX5/1 to 100 brought by PW7 and asked PW11 to touch them, upon which after touching them PW11 put his hand in the bottle containing solution of water and sodium carbonate and such solution turned pink. Said solution was thrown. PW11 washed his hands. As per PW13, he and PW11 gave specimen voices, which were recorded in the voice recorder of CBI officer. Ex PW7/D (D6) was prepared. As per PW13, said GC notes were given to PW7 which he put in his back pocket of worn pant and thereafter the trap team members left CBI office at about 2 pm for Mehrauli Tehsil.
66. PW14 deposed that he was associated in the trap RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 47/85 CBI vs Iqbal Singh & Anr.
proceedings and appended signatures inter alia on Ex PW7/D (D6) i.e., Handing Over Memorandum. Besides aforesaid, PW14 did not whisper of any fact regarding pre trap proceedings.
67. PW15 deposed that on 13/03/2009 at about 11.15 am PW16, Inspector Hitender Adhlaka, Inspector R.C Sharma, Inspector Prem Nath, PW14, PW13, PW11, PW7 assembled in CBI, ACB New Delhi for laying a trap on A1. As per PW15, the purpose was explained by PW16 and all aforesaid persons were mutually introduced and complaint Ex PW7/B (D3), copy of FIR, Ex PW7/C (D5) i.e., verification memo were shown and explained to all present. As per PW15, DVR with Mini Cassette Player and blank audio cassettes were arranged; introductory voices of both independent witnesses were recorded in DVR; on direction of PW16, PW7 made call from his mobile phone to mobile phone of A1 on speaker mode which conversation was heard by all present and was recorded simultaneously in the DVR, wherein A1 asked PW7 to come to his office along with the said money, after lunch hours. As per PW15, PW7 produced GC notes Ex PX4/1 to 100 and Ex PX 5/1 to 100 to be used as trap money and the description of the GC notes were recorded in Ex PW7/D (D6) i.e., Handing Over Memorandum. As per PW15, the demonstration of use of phenolpthalein powder and its chemical reaction with solution of sodium carbonate and water was given by Inspector Prem Nath wherein PW11 was asked to touch tainted GC notes with right hand fingers and such fingers were dipped in solution of RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 48/85 CBI vs Iqbal Singh & Anr.
sodium carbonate and water prepared in a clean glass tumbler. Thereafter said solution which turned pink was thrown away and PW11 on instructions of PW16 then put the said GC notes in the left and right hip pant pocket of PW7 after personal search of PW7 was taken and it was ensured that nothing incriminating was left in his person except his mobile phone. As per PW15, PW7 was instructed not to touch tainted GC notes and hand over the tainted GC notes to A1, only on his specific demand and not otherwise, or to any other person on specific direction of A1. As per PW15, other team members including PW11 and PW13, PW7 washed their hands; all trap team members and PW11 and PW13 mutually searched each other in order to ensure that nothing incriminating was left with them. As per PW15, PW13 was directed by TLO to act as a shadow witness and to remain with PW7 in order to see the transaction of bribe and to over hear the conversations between PW7 and A1, if any; PW13 was also directed to pass on a signal by rubbing his face with his both hands to the TLO and other team members immediately after completion of the bribe transaction; as an extra precaution, PW13 was also instructed to make a call from his mobile phone to mobile phone of PW16 in case PW13 was not able to see PW16 or the other team members after the transaction of bribe was completed. As per PW15, the DVR after explaining its functions was given to PW7 with direction to switch it 'ON' before entering into conversation of A1. As per PW15, trap kit was arranged and its contents were shown to all present; sealed cassette mark Q1 containing recorded RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 49/85 CBI vs Iqbal Singh & Anr.
conversations of PW7 and A1 was seized vide Handing Over Memorandum Ex PW7/D (D6) which also contained details of the pre trap proceedings. As per PW15, the handing over proceedings concluded at about 2 pm on 13/03/2009 and trap team left CBI office for Mehrauli Tehsil. Regarding the pre trap proceedings, in statement Ex PW17/DA under Section 161 Cr.P.C of PW15 dated 16/04/2009, there is only mention of the fact that on 13/03/2009 a trap team was constituted under PW16 whereupon a trap was laid leading to arrest of A1. No other detail of any pre trap proceedings find mention in Ex PW17/DA as what PW15 deposed in the Court, elicited above and all his vivid deposition is an addition made by him to his previous statement Ex PW17/DA given to IO PW17.
68. TLO PW16 deposed that on 13/03/2009 he constituted a trap team including himself, PW15, Inspector R.C Sharma, Inspector Hitender Adhlaka, SI Prem Nath, PW14, PW13, PW11 and other subordinate staff and they were informed of the purpose and introduced with each other and complaint was read over and all were intimated about the verification conducted on 12/03/2009. As per PW16, PW7 produced GC notes Ex PX4/1 to 100 and Ex PX5/1 to 100. As per PW16, a demonstration was given by Inspector Prem Nath by treating GC notes with phenolpthalein powder and PW11 touched the GC notes on direction of PW16 and washed his fingers in the freshly prepared sodium carbonate solution in a tumbler which solution turned pink. Said RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 50/85 CBI vs Iqbal Singh & Anr.
solution was thrown away and remaining phenolpthalein powder was sent back to Malkhana. As per PW16, the aforesaid GC notes were given to PW7 who kept them in his back pant pocket; PW7 was instructed to hand over the same GC notes to A1 only on his demand; PW13 was instructed to remain present with PW7 in order to hear and see all the transactions that take place between PW7 and A1. As per PW16, PW7 made call from his mobile phone to mobile phone of A1 in order to fix the time for delivery of the bribe amount and the said conversation was recorded in DVR by keeping the phone of PW7 in a loudspeaker mode; it was arranged that PW7 had to visit Mehrauli SDM office and meet A1 for delivery of bribe amount. As per PW16, all trap team members washed their hands and the trap kit was made ready; Ex PW7/D (D6) i.e., Handing Over Memorandum was prepared by PW16. As per PW16, at around 14:45 hours on 13/03/2009 the trap team proceeded towards office of SDM Mehrauli.
TRAP PROCEEDINGS ON 13/03/2009
69. PW7 deposed that he had proceeded to Mehrauli Tehsil in his car driven by driver Praveen and was accompanied by one witness i.e., PW13 and they reached there at 12.45 pm on 13/03/2009. As per PW7, other trap team members were in 2/3 CBI vehicles; on reaching Mehrauli Tehsil, PW7 made a call from mobile phone to mobile phone of A1 and asked him where he (PW7) had to see him (A1); A1 instructed PW7 to go into the Mehrauli Tehsil parking. As per PW7, after parking, RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 51/85 CBI vs Iqbal Singh & Anr.
he made another call from his mobile phone to mobile phone of A1 and told A1 that he was in the parking. As per PW7, after 34 minutes, he received a call from A1 on his mobile phone asking him (PW7) where he had parked his vehicle; the DVR was 'ON' in all aforesaid proceedings; driver Praveen was on driver seat of Skoda car no. 2514, witness (PW13) was on other front seat and PW7 was on back seat of his said car while CBI team members were all scattered in the parking and around Mehrauli Tehsil. As per PW7, the witness (PW13) was told that the moment the money change happens, he had to make a gesture to CBI team in case there is no visual contact with any CBI team member and even if such could not be done, then to make a call to any CBI team member. It flows there from that mobile phone numbers of all CBI team members were provided to PW13, but it does not find mention in Ex PW7/D (D6) i.e., Handing Over Memorandum as well as in Ex PW3/B (D7) i.e., Recovery Memo nor such mobile phone numbers of the CBI team members find mention in these documents. As per PW7, after 34 minutes A1 came on foot near side his car upon which PW7 came out of his car and had a conversation with A1, face to face, for about nearly 10 minutes in said parking of Mehrauli Tehsil while at that time the witness (PW13) was still in the car and PW7 had instructed his driver Praveen to stand outside beside the vehicle and window glasses of his car were open. As per PW7, his aforesaid conversation with A1 was recorded in DVR. Internal pages 13 and 14 of transcript Ex PW7/H (D
24) finds mention of 20 small dialogues inter se PW7 and A1 which RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 52/85 CBI vs Iqbal Singh & Anr.
could be attributed to such aforesaid conversation at the spot but by no figment of imagination, such conversation can be inferred to have lasted for about 10 minutes. Report Ex PW9/B (D25) of PW9 finds mention of cassette Ex PW7/J (Ex Q2) having recordings of total durations of 05 minutes and 13 seconds approximately. Inherent improbability and/or fallacy in version of PW7 is writ large on face of record accordingly. If PW7 had 10 minutes conversation with A1 at spot which was recorded in DVR then where such duration conversation had gone? If entire conversation of duration of 10 minutes between PW7 and A1 was not copied from DVR to cassette Ex PW7/J (Ex Q2) then it is a matter of manipulation in the recorded conversations aforesaid. PW7 also deposed that the essence of conversation between him and A1 was that A1 had asked him if he (PW7) was carrying the money, to which PW7 replied in affirmative and gestured it to give it to A1. Transcript Ex PW7/H (D24) finds no mention of A1 having asked PW7 if he (PW7) was carrying the money or to such question of A1, PW7 had replied in affirmative. Recordings in cassette Ex PW7/J (Ex Q2) contained disruptions, distortions, spikes, drop outs, pauses and some portions were not audible and even invariably voice of A1 got static and it cannot be made out there from that A1 had asked PW7 if he (PW7) was carrying the money, to which PW7 replied in affirmative. As per PW7, A1 had asked PW7 to wait in aforesaid 10 minutes conversations at spot and made a call from his mobile phone to some person (A2), whose text PW7 was unable to specify having forgot. Fact remains that the DVR on person of PW7 was RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 53/85 CBI vs Iqbal Singh & Anr.
in 'ON' position during aforesaid 10 minutes conversations and is supposed to contain the conversation of A1 with such other person (A
2) whom he made the call, as aforesaid. Yet, the text of such conversation of A1 with the other person (A2) is not part of transcript Ex PW7/H (D24) nor could be made out from the recordings on display of cassette Ex PW7/J (Ex Q2). It is not the version of PW7 that A1 had moved away from him to make a call or in the process of making call to such other person (A2). As per PW7, after 35 minutes, A2 came there; A1 instructed PW7 to hand over the money to A1 upon which PW7 took out the money from his pocket and was giving it to A1 upon which A1 said that, "Marwayenga ki, aainu de dey"; PW7 insisted to A1 to atleast count the money as the notes were in serial and easy for him to count. As per PW7, he handed over the money to A2, on directions of A1, which money was put by A2 inside his shirt. As per PW7, A1 asked him (PW7) what was his plan upon which PW7 told that he was on his way to Gurgaon. PW7 also deposed that the moment A2 took money, he (PW7) saw from corner of his eye that the witness (PW13) made a call from his mobile phone; PW7 went back and sat in his car and A2 and A1 went the other way towards Mehrauli Tehsil and PW7 could not see what transpired towards their side. As per PW7, by the time his driver reversed the car, he (PW7) saw 2/3 members of CBI team chasing A1, A1 ran about 100 meters on to the road towards Qutab Minar before he was apprehended. As per PW7, back in the parking, he saw A 2 in black colour car, around which car entire team of CBI collected; A1 RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 54/85 CBI vs Iqbal Singh & Anr.
was then under the control of team of CBI; CBI team got A2 out of said car. As per PW7, from the boot of the black colour car a cardboard box Ex PX3 containing GC notes Ex PX4/1 to 100, Ex PX5/1 to 100 was found. PW7 also stated that A1 and A2 were subjected to water test; washes of hands of A1 and A2, of shirt and vest of A2, of cardboard box, some places in the car were taken. As per PW7, a T shirt for A2 was organized by CBI team members and from parking lot they proceeded towards Mehrauli Tehsil.
70. PW13 inter alia deposed that in car of PW7 driven by driver, he reached Mehrauli Tehsil at around 3 pm; he (PW13) was on front seat besides driver seat while PW7 and one CBI officer were sitting on rear seat of car. PW7 did not depose that one CBI officer was on his side in transit to Mehrauli Tehsil as stated by PW13. As per PW13, before parking of Mehrauli Tehsil, CBI Officials had alighted from the vehicles; their car went in the parking and parked there. As per PW13, in the parking PW7 made a call from his mobile phone to A1 and informed him of having reached in the parking of Mehrauli Tehsil; PW7 also asked his driver to move outside the car and himself (PW7) also alighted from the car while PW13 kept sitting in the car and the glass of the window of his side was open. As per PW13, PW7 stood on the left back side of the car at the distance of one or two feet. PW13 did not depose about other call made by PW7 to A1 or the call received by PW7 from A1 as herein before elicited in the version of PW7. As per PW13, A1 reached near RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 55/85 CBI vs Iqbal Singh & Anr.
PW7 and had a talk of 57 minutes with PW7, which PW13 could not hear while at that time all other trap team members were outside the parking of Mehrauli Tehsil. As per PW13, after sometime A2 came near A1 and PW7 who were talking; PW7 took out tainted GC notes Ex PX 4/1 to 100, Ex PX5/1 to 100 and gave them to A2. On one hand, PW13 claimed to be seated on the front seat besides driver seat of car of complainant whereas PW7 stood on left back side of the car at a distance of one or two feet and PW13 was not able to hear the conversation inter se PW7 and A1 but on the other hand PW13 also claimed to have seen PW7 taking out and giving the tainted GC notes to A2 who arrived later. From his stated location in the car of complainant, it was per se improbable if not impossible for PW13 to have seen all these facts of taking out and handing over of the tainted GC notes by PW7 to A2, as claimed by him. Even PW13 did not specify of any instructions/gesture given by A1 to PW7 to hand over the tainted GC notes to A2. Fallacy/falsity in such version of PW13 is writ large on the face of record. As per PW13, he then received the call of PW15 on his mobile phone and he (PW13) had a talk with PW15 and told him that PW7 had given the money and asked him to come. PW13, stated that though he was under instruction to call CBI official when the money was given but before he could make the call, he received the call, aforesaid from PW15. As per PW13, he then alighted from the car; CBI officials came inside the parking; A1 proceeded towards the road while A2 proceeded towards back side i.e., the other side. As per PW13, CBI officials RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 56/85 CBI vs Iqbal Singh & Anr.
enquired from him, who the accused were, upon which he told that A1 had gone towards the road and the person who had taken money had gone towards the other side. As per PW13, some trap team members proceeded towards the side where A1 had gone while he and some other trap team members went towards where A2 had gone; after crossing the gate of parking, they went outside the parking and moved inside the parking on the left side and saw A2 closing either dickey of car or black colour car; two officials of CBI apprehended arms of A2 and gave him (PW13) the key of black colour car which was taken from A2. As per PW13, on opening the black colour car, money Ex PX4/1 to 100, Ex PX5/1 to 100 was found in the cardboard box Ex PX3 which in the backside of the car and was found when the car was open from the side of dickey. As per PW13, PW11 had taken out the said cardboard box Ex PX3 containing the money Ex PX4/1 to 100, Ex PX5/1 to 100 and in the meantime other trap team members also came there. As per PW13, though both hand washes of A2, of vest of A2, of cardboard box were taken but no hand wash of A1 was taken as he had not taken the money in his hand. As per PW13, after taking of washes and sealing them in separate bottles, since crowd had collected, they went to office of Tehsildar Mehrauli.
71. PW11 deposed that at around 3 pm or 3.15 pm they reached Mehrauli Tehsil and he (PW11) was with PW15 while PW7 was accompanied by PW13 in the car of PW7. As per PW11, when they RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 57/85 CBI vs Iqbal Singh & Anr.
reached Mehrauli Tehsil, PW7 made call from his mobile phone to A1 and after sometime A1 came to the parking and had talk with PW7 and at that time they (PW11, PW15 and others) were standing separately at a distance of 50 meters from the place where A1 had talk with PW7 in the parking. As per PW11, when A1 had talk with PW7 in said parking, PW13 was near the vehicle and at a small distance from PW7; after sometime A2 came and A1 made gesture by hand to PW7 to give money to A2 upon which PW7 gave two bundles of GC notes i.e., Ex PX4/1 to 100, Ex PX5/1 to 100 to A2, which A2 accepted with his right hand and all members of the team reached there; A1 ran towards outside of the parking and some members of the team ran after A1 and apprehended him. As per PW11, A2 had put Ex PX4/1 to 100, Ex PX 5/1 to 100 in cardboard carton Ex PX3 in the dickey of the car and the team members also apprehended A2. Rough site plan Ex PW7/E (D15) depicts the location inter se of PW11 at the spot. In cross examination, copy Ex PW11/DA of another rough site plan was put to PW11 who stated that this plan was also prepared and bears his signatures at point A. Ld. Defence Counsel had drawn my attention towards the paging as 1 to 154 in pencil on right corners of filed documents starting from D2 to statement under Section 161 Cr.P.C of R.S. Sehrawat but after aforesaid paging as number '34' on rough site plan D15 the next document is specimen voice recording memo D16 bearing paging as number '36', so the page number '35' has not been filed by the officers of investigating agency on record and for the same it was to be explained by the RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 58/85 CBI vs Iqbal Singh & Anr.
prosecution and the IO by submissions in writing later, as was directed to be done during the deposition dated 06/05/2013 of PW11. No explanation to that effect has been placed on record by the prosecution or the IO nor any clarification/arguments were advanced by them. Ex PW11/DA makes position of PW11 depicted (as 'W') near Yogmaya Mandir Street on the other side of the road from the parking of Mehrauli Tehsil and from his such position it is neither possible nor probable for PW11 to have seen the occurrence of A1 conversing with PW7 or PW7 handing over money to A2 from across the road from a distance of about 50 meters (distance as specified by PW11) when in between them was the road as well as the boundary wall of the parking of Mehrauli Tehsil and the gates of parking not in way for PW11 to see the occurrence and instead the gates of parking were specified at such locations making it impossible/improbable for PW11 to see the occurrence. Perhaps, this would have been the reason for non filing of the rough site plan, original of Ex PW11/DA by the investigating agency as it would have been documentary evidence in contradiction of the oral evidence of PW11.
72. In his deposition PW15 stated that on reaching outside Mehrauli Tehsil office at about 3 pm on 13/03/2009, PW7 and PW13 went inside the parking area just in front of said Tehsil office, whereas other trap team members and PW11 took appropriate positions on the road between Tehsil office and the parking area, in disguised manner so as not to raise any suspicion. As per PW15, when A1 came out of main RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 59/85 CBI vs Iqbal Singh & Anr.
gate of Mehrauli Tehsil office and entered the parking area, he (PW15) was standing near the main gate of Mehrauli Tehsil office and after passing of 10 minutes, to enquire about situation on spot, he (PW15) made a call from his mobile phone to mobile phone of PW13 and PW13 informed him that on instructions of A1, PW7 had handed over the bribe amount of Rs 1 lakh to one person and asked PW15 to rush to spot immediately. Location of PW15 as 'RC' depicted in rough site plans Ex PW7/E (D15) and Ex PW11/DA make it more probable for PW15 to have seen the occurrence at spot. PW15 did not say of having seen the occurrence of alleged handing over of bribe amount by PW7 to A2 but as per his deposition, since he was curious of sequence of events at spot after going of A1 at spot, he made call from his mobile phone to PW13 about the happenings there. So, if PW15 could not see the sequence of events taking place regarding alleged handing over of bribe money by PW7 to A2 on directions of A1, how could PW11, who was along with PW15, as per own version of PW11, have seen such sequence of events taking place regarding alleged handing over of bribe money by PW7 to A2 on directions of A1? PW11 was in such fact situation at the places depicted in Ex PW7/E and Ex PW11/DA that it was improbable for him to see sequence of events taking place regarding alleged handing over of bribe money by PW7 to A2 on directions of A1. Even in the course of crossexamination by Ld. Counsel for A1, PW11 admitted that on 13/03/2009 he (PW11) had seen A1 for the first time after A1 was apprehended by CBI officers. It also makes it a crystal clear that PW11 RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 60/85 CBI vs Iqbal Singh & Anr.
had not seen A1 in the company of PW7 and conversing with him or PW7 delivering bribe sum as alleged to A2 on direction of A1, as he stated in his examinationinchief. Accordingly, falsity in evidence of PW11 on this count is writ large on the face of record.
73. As per PW15, upon receiving of information from PW13 of handing over of bribe amount by PW7 to one person, he (PW15) immediately informed the development to TLO PW16 and other team members standing on the road and asked them to rush to the parking area immediately. PW15 further deposed that he, PW16, PW11 and other team members reached the car of complainant parked in the said parking area, where PW7, PW13 and A1 were found standing; PW16 took back DVR from PW7 and put it in switch 'OFF' mode; PW16 gave DVR to Inspector Prem Nath and thereafter A1 by force, managed to escape and started running towards the main MehrauliQutab Minar Road, who was followed by Inspector R.C Sharma, Inspector Prem Nath and Inspector Hitender Adlakha. PW15 also deposed that PW13 had simultaneously also pointed out that one person (A2) who accepted bribe sum on instruction of A1 had gone towards another end of parking area; PW15, PW16 and PW11 intercepted A2 who was found putting bribe money in the back seat of Toyota Corona car. As per PW15, PW16 challenged A2. A2 was caught by his wrists by PW15 and PW16, key of car was taken from A2 and car was locked and key was given to PW11. As per PW15, after interception, A1 was also brought by Inspector R.C Sharma, RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 61/85 CBI vs Iqbal Singh & Anr.
Inspector Prem Nath and Inspector Hitender Adlakha near the said Toyota Corona car and PW13 also joined them. As per PW15, TLO PW16 also challenged A1; PW13, PW7 and PW11 explained the sequence of events. As per PW15, washes i.e., right hand wash of A2, left front side shirt wash of A2, wash of vest of A2, wash of cardboard carton Ex PX3 were taken separately in solutions of sodium carbonate and water which turned in pink colour and it were kept in separate bottles and sealed.
74. As per PW16, at around 3.15 pm on 13/03/2009, after they had waited near parking lot for about 1015 minutes and there was no response from PW13 or PW7, in order to take stock of situation, PW15 made a call on mobile phone of PW13 at around 3.15 pm and PW13 informed PW15 about the transaction and asked to reach inside the parking lot; thereupon PW16 passed message to other team members, waiting outside the parking lot. Also PW16 deposed that he and PW15 rushed inside the parking lot, where PW13 pointed out towards A1 and informed that on direction of A1, PW7 had passed on money to another person (A2), who was going towards other corner of the parking lot upon which PW16 challenged A1 and at that stage A1 started running from that spot outside the parking lot. As per PW16, he directed other approaching team members to catch hold of A1 while PW16 and PW15 rushed towards the other person (A2) from outside the parking lot; in the end of parking lot there was an iron gate which was closed. As per RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 62/85 CBI vs Iqbal Singh & Anr.
PW16, as they were apprehending about other person (A2), he (PW16) and PW15 jumped over the iron gate and could locate A2 while he was passing something inside black colour Toyota Corona car from the back door. As per PW16, A2 was challenged and it was seen he was passing GC notes Ex PX4/1 to 100, Ex PX5/1 to 100 in the dickey of the car by pulling down the backrest of the rear seat of the car, where upon A2 was apprehended. PW13 also reached there. Other team members who had chased and apprehended A1 also brought A1 there. GC notes Ex PX4/1 to 100, Ex PX5/1 to 100 were recovered from the carton Ex PX 3 from dickey of the car by PW11. As per PW16, washes i.e., right hand wash Ex RHW of A2, left front side shirt wash Ex LSSW of shirt Ex PX1 of A2, wash VW of vest Ex PX2 of A2, wash CW of cardboard carton Ex PX3 were taken separately in solutions of sodium carbonate and water which turned in pink colour and it were kept in separate bottles and sealed.
75. Regarding the sequence of the events which took place on entry of trap team members viz., PW11, PW15, PW16 in the parking near car of PW7 allegedly around 3.15 pm, all material witnesses namely PW7, PW11, PW13, PW15, PW16 have deposed in material contradiction and at variance from version of each other and from the presented case of prosecution, as has been elicited above.
76. PW7 deposed that at Mehrauli Tehsil, in the office of RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 63/85 CBI vs Iqbal Singh & Anr.
Tehsildar, CBI officials made packets of recovery made, noted down sequence of events and he signed number of documents. As per PW7, office room of A1 was found locked, a locksmith was summoned and office room of A1 was opened and at that time he was outside office of Tehsildar and had seen CBI team bringing a person, whom they claimed to have found in office room of A1; said person was enquired and kept along with CBI team; said person told himself to be friend of A1 and owner of black colour car. As per PW7, he went back home fairly late in the night and some day later went to CBI office, met PW17 and signed one document.
77. As per PW11, CBI team members met Tehsildar PW3 and told him entire occurrence on 13/03/2009 and in the presence of PW3 CBI team members went to the room of A1 which was locked from outside, its key was not there due to which keysmith was called and lock was got opened; on opening of the room, PW8 was found seated there who told himself to be friend of A1 and owner of black colour Toyota car. As per PW11, they went to the chamber of PW3 where all papers were prepared; A2 was having motorcycle, regarding which A2 stated it was not belonging to him and after seizure said motorcycle was given to Ramesh, friend of A2. As per PW11, the documents were prepared till about 10 or 10.30 pm and he was given the seal Ex PW11/E after use which he retained and produced in Court during his evidence.
RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 64/85 CBI vs Iqbal Singh & Anr.
78. As per PW13, PW3 Tehsildar was told all facts on 13/03/2009 and all proceedings including writing work was done there. PW13 also deposed that PW3 was told that office room of A1 was to be searched for which he (PW13), PW11 with 3/4 officials of CBI went and found said room locked from outside, upon which keysmith was called and duplicate key was got made. As per PW13, a person was found standing in the office room of A1 after the said room was opened with the duplicate key; said person told that he was friend of A1 and was not knowing why room of A1 was locked from outside but he (said person) was sleeping in the room. As per PW13, all seizure memos, documents were prepared by CBI officials in the office room of Tehsildar PW3 where PW13 signed them and at about 10 or 10.30 pm PW13 went back to his home along with PW11 in the car of TV reporter.
79. PW14 simply deposed that he was associated in the trap proceedings and signed documents viz., Ex PW3/B (D7) i.e., recovery memo; Ex PW11/L (D13) i.e., search list; Ex PW11/M (D14) i.e., search list; Ex PW3/A (D17) i.e., search cum seizure memo and Ex PW11/N (D18) i.e., payment receipt. Besides that PW14 did not whisper any other fact regarding trap proceedings, in corroboration or in contradiction to version of other witnesses of the trap proceedings.
80. As per PW15, in office of PW3 Tehsildar, trap proceedings as well as further proceedings to be undertaken were explained to PW3 RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 65/85 CBI vs Iqbal Singh & Anr.
and PW3 provided space in his office for proceedings and remained present to witness remaining trap proceedings. As per PW15, search of office of A1 was conducted and a search cum seizure memo was prepared; similarly, search of Toyota Corona car and Hero Honda motorcycle of A2 was also conducted vide separate search cum seizure memos. PW15 also deposed that the recorded conversations in DVR was also heard by all present including PW11 and PW13 and such recorded conversation done were transferred in blank audio cassette Ex PW7/J (Ex Q2) and on label of said cassette PW11 and PW13 signed and said cassette was sealed. PW15 also stated that vide Ex PW3/B (D7) i.e., recovery memo the exhibits were seized and after use brass seal was handed to PW11. As per PW15, in the office room of PW3 in the course of proceedings, specimen voices of both A1 and A2 were obtained by PW16 and recorded in blank audio cassette Ex PW13/A (S1). PW15 also stated that rough site plan was also prepared in the office of PW3 but he did not know who prepared it. Regarding the trap proceedings, in statement Ex PW17/DA under Section 161 Cr.P.C of PW15 dated 16/04/2009, there is only mention of the fact that on 13/03/2009 a trap was laid leading to arrest of A1 while demanding and accepting an illegal gratification of Rs 1 lakh from PW7 through A2. No other detail of any trap proceedings find mention in Ex PW17/DA as what PW15 deposed in the Court, elicited above and all his vivid deposition is an addition made by him to his previous statement Ex PW17/DA given to IO PW17.
RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 66/85 CBI vs Iqbal Singh & Anr.
81. As per PW16, PW3 was informed on 13/03/2009 about the purpose of the visit of CBI team after the apprehension of the accused persons and a place was arranged to undertake further proceedings. PW16 further deposed that office room of A1 was approached for conducting search, which room was in the premises of office of SDM, said room was found locked and on demand of key of said room from PW3, it was not made available and even A1 could not provide the key, so a keymaker from near vicinity was arranged and on opening the office room of A1 with key so made, search of office of A1 was carried out while before that from the window of the room one person was seen sleeping inside; said person i.e., PW8 was interrogated and PW8 told himself to be friend of A1 and to be owner of Toyota Corona car. Ex PW3/A (D17) i.e., search cum seizure memo regarding search of office room of A1 was prepared. As per PW16, arrest memos of accused persons Ex PW11/H (D10), Ex PW11/G (D8); personal search memos of accused persons Ex PW11/J (D9) and Ex PW11/K (D11); site plan Ex PW7/E (D15); recovery memo Ex PW3/B (D7) were prepared. PW16 also stated that voice specimen memo Ex PW11/F (D16) of A1 was also recorded on taking of voice specimen of A1 in the office of SDM and the text for reading out specimen voice was arranged by Inspector Prem Nath, which text was selected from conversations which had taken place between PW7 and A1 and said recording was done in cassette Ex PW13/A (S1) by use of small cassette recorder which was RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 67/85 CBI vs Iqbal Singh & Anr.
with Inspector Prem Nath. As per PW16, the conversations recorded in DVR were transferred in cassette Ex PW7/J (Q2) after making a copy for investigation. As per PW16, Toyota Corona car no. 0053 was searched and seized vide memo Ex PW11/L (D13) and motorcycle of A 2 was searched, seized and given on superdari to a person vide memo Ex PW11/M (D14). As per PW16, proceedings were concluded at about 10 pm on 13/03/2009 and CBI team with accused persons and articles seized went to CBI office. PW16 also stated that intimation of arrest of A1 vide Mark P16/1 (D12) was given by Inspector S.S Bhullar.
82. PW16 admitted that in Ex PW7/D (D6) there was no mention of any other person excepting him (PW16), PW7, PW13 having carried mobile phones in trap proceedings and he had not given any instructions to trap team members to make a call to either PW7 or PW13 during subsistence of trap proceedings nor he (PW16) prepared any list of details of mobile phone instruments or their SIM numbers carried by trap team members in the trap nor such mobile phone number excepting of PW7 was mentioned in any of the documents prepared by him (PW16). PW16 also stated that he had not given any instructions to any trap team member to contact either PW7 or PW13, to know the situation or otherwise telephonically or otherwise, before receipt of either of the preassigned signal. It is own version of PW15 that only after about 10 minutes of alleged entering of A1 in the parking area, out of curiosity he made call from his mobile phone to mobile phone of PW13 to inquire RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 68/85 CBI vs Iqbal Singh & Anr.
about situation on the spot. Neither TLO PW16 directed PW15 to make such inquiries by making call to PW13 nor it was predecided by trap team members or TLO PW16 and even not much time had passed of A1 having allegedly gone to the parking area as in terms of version of PW15 only about 10 minutes had passed.
83. As per chemical examination report Ex PW10/A dated 29/06/2009 of PW 10 Sh. V.B. Ramteke, Senior Scientific Officer, GradeI (Chemistry), CFSL, CBI, New Delhi, four sealed bottles Ex. RHW, Ex. LSSW, Ex. VW and Ex. CW were received in his laboratory which on examination gave positive tests for the presence of Phenolpthalein.
84. PW8 Sh Vishnu Bhagwan, a property dealer, deposed that he was on visiting terms with A1 and on 13/03/2009 he had gone outside Mehrauli Tehsil where he was given time by property dealer Sh Amit Vaid but on reaching there at about 1.15 pm or 1.30 pm he did not meet said Sh Amit Vaid, so he went to Yogmaya Mandir after parking his Toyota Corona car DL3CF0053 outside Mehrauli Tehsil. As per PW8, on coming back from Yogmaya Mandir since he did not find said Sh Amit Vaid, so he thought to go to office of Sh Amit Vaid and tried to open the lock of the door of his aforesaid car but two persons came to PW8 and inquired what PW8 was doing and when PW8 told them that he is opening his car, then those two persons took key of his car and RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 69/85 CBI vs Iqbal Singh & Anr.
asked him (PW8) to come to Tehsil office and they were from CBI. PW8 further deposed that in Mehrauli Tehsil, said two persons made him sit in a room and told him that they will be coming after sometime and locked the room outside. As per PW8, at about 3.30 pm, 45 persons came, opened the door outside and with them A1 was also there; PW8 was inquired; PW8 told them of the aforesaid car to be belonging to him (PW8). PW8 also stated that those CBI officials told him that they had apprehended A1 in the matter of bribe of Rs 1 lakh, upon which PW8 told CBI officials that Rs 1 lakh kept in the dickey of his car were belonging to him, which he had brought for a deal in the property. As per PW8, CBI officials told him to stay away from the matter as they had apprehended A1 in the matter of bribe; when PW8 resisted saying the money of Rs 1 lakh was belonging to him then CBI officials told PW8 that they have already arrested A1 and if he (PW8) further resisted then they would also arrest him (PW8). PW8 also stated that after obtaining his signatures on 2/4 papers, CBI officials asked him to go and when he (PW8) asked for key of his car, CBI officials told him that he would get them from the Court. Again PW8 was told by CBI officials to go or else they would arrest him and under fear PW8 went away. It is a matter of fact that till his deposition on 06/03/2013 in the Court or even later, PW8 did not move any application nor filed any complaint with regard to any alleged misuse of Rs 1 lakh claimed to be belonging to him before any authority concerned. For that PW8 explained that he did not do so since he was under fear. PW8 also could not elicit from where he had received RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 70/85 CBI vs Iqbal Singh & Anr.
said Rs 1 lakh claimed by him to be belonging to him but stated that said money was kept in polythene by him in the dickey of his car.
85. True that human memories are apt to blur with the passage of time, there may be minor discrepancies/errors of observation due to mental disposition, shock and horror at the time of incident, omissions, mistakes in the testimonies of the material witnesses. Also it is true that the testimonies of victim witness holds more credence, who normally would not shield real culprit or let actual assailant go unpunished, to falsely implicate the third party for the commission of an offence. Also it is true that accused are not to be acquitted solely on the account of defects in the investigation. The testimonies of witnesses on record are to be scrutinized with utmost care, caution and circumspection. To base conviction on them, they should be free from embellishments, material contradictions, severe infirmities and inherent improbabilities going to the root of matter to check and shake basic version and core of prosecution case, so as to be worthy of credence, reliable and trustworthy.
86. In 2008 CRI. L. J. 3061 , Dalbir Singh v. State of Haryana, Hon'ble Supreme Court held that "Coming to applicability of the principle of falsus in uno falsus in omnibus, even if major portion of evidence is found to be deficient, residue is sufficient to prove guilt of an accused, notwithstanding acquittal of large number of other coaccused persons, his conviction RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 71/85 CBI vs Iqbal Singh & Anr.
can be maintained. However, where large number of other persons are accused, the Court has to carefully screen the evidence. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus inomnibus" has no application in India and the witnesses cannot be branded as liar.The maxim "falsus in uno falsus in omnibus" (false in one thing, false in everything) has not received general acceptance in different jurisdiction in India, nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to,is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called "a mandatory rule of evidence". (See Nisar Alli v. The State of Uttar Pradesh, AIR 1957SC 366). Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a Court to differentiate the accused who had been acquitted from those who were convicted. (See Gurucharan Singh and another v. State of Punjab, AIR 1956 SC 460). The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a deadstop. The witnesses just cannot help in giving embroidery to a story, however,true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sahrab s/s Belli Nayata and another v. The State of Madhya Pradesh, (1972) 3 SCC 751, and Umar Ahir and others v. The State of Bihar, AIR 1965 SC 277). An attempt has to be made to in terms of felicitous metaphor, separate grain from the chaff, truth from RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 72/85 CBI vs Iqbal Singh & Anr.
falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is discard the evidence in toto. (See Zwieolae Ariel v. State of Madhya Pradesh, AIR 1954 SC 15; and Balaka Singh and others v. The State of Punjab, AIR 1975 SC 1962). As observed by this Court in State of Rajasthan v. Smt. Kalki and another, AIR 1981 SC 1390, normal discrepancies in evidence are those which are due to normal errors of observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and these are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so."
87. In the case of Amarpal (Rajpal) (supra), it was re emphasized for the benefit of the Trial Judges that it is their duty to see with microscopic eyes, all evidence and then test the veracity of eye witness account.
88. An attempt has been made in terms of felicitous metaphor, to separate grain from the chaff, truth from falsehood.
89. PW7 has introduced new version in his deposition of A1 having served notice Ex PW7/A (D22) himself on PW7 on 08/03/2009 and when PW7 made call from his mobile phone to A1 after 2/3 days of 08/03/2009. then A1 having made demand of Rs 4 lakhs to remove the RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 73/85 CBI vs Iqbal Singh & Anr.
aforesaid notice, which is per contra to averments in complaint Ex PW7/B (D3), statement Ex PW7/DA under section 161 Cr.P.C of PW7 and the presented case of prosecution. Sh Jitender Khatana with whom PW7 discussed the matter after receipt of notice Ex PW7/A (D22) and who allegedly conveyed to PW7 that A1 takes a bribe of Rs 4 lakhs to settle such matters, has neither been examined in investigation nor cited nor examined as a prosecution witness in primary evidence of fact of demand of bribe, if any on part of A1. Entire tenor of deposition of PW7, makes it implicit clear that PW7 did not meet PW14 on 12/03/2009 and PW7 had only met PW15 in CBI office on 12/03/2009 who conducted the part of verification proceedings in CBI office and had taken PW7 to his SP and it was PW15 who sent PW7 with witness i.e., PW11 to office of A1 in the remaining part of verification proceedings and PW7 simply stated of verification proceedings to have been solely done by PW15. When read as a whole, strange role of PW15 has appeared on the face of record. Nothing has been brought on record to depict that in the event of lodging of complaint by any aggrieved with CBI regarding any demand of bribe by any public servant, such aggrieved on the relevant date was supposed to meet PW15 only in CBI office or PW15 was such a designated person to meet such aggrieved. PW7 deposed of the fact that he was guided to PW15 on reaching CBI office on 12/03/2009 and gave his complaint Ex PW7/B (D3) to PW15 whereupon PW15 took PW7 to his SP. Per contra, PW15 did not say of having so met PW7 on 12/03/2009 but deposed that on 12/03/2009 he RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 74/85 CBI vs Iqbal Singh & Anr.
was called by his SP Sh Sumit Saran and his said SP introduced him (PW15) with PW7. PW15 also does not say of having himself directed PW7 to make a call to A1 for verification purposes or having recorded such call conversation in DVR of CBI or having displayed such recorded call conversation in DVR before his superior officer i.e., SP, as was so deposed by PW7. PW15 altogether did not say of having done any act in the verification proceedings but stated that verification proceedings were done by PW14. PW7 does not whisper of any act of PW14 in verification proceedings done. Also as per PW7, it was PW15 who sprinkled powder on GC notes in CBI office in pretrap proceedings and made somebody touch said notes, upon which water was put on finger of said person and said water turned pink. As per PW7, it was PW15 who placed DVR in 'ON' mode in his (PW7) vest and it was PW15 who instructed him (PW7) that further conversation with A1 is to be recorded. Even PW11 stated that on 13/03/2009 he reached CBI office at 10 am and went to room of PW15 from where PW15 took him (PW11), PW7, PW13 to PW16 in other room of CBI office and there in presence of PW16 and 2/3 other persons it was PW15 who told all facts. PW13 also stated that when he reached CBI office on 13/03/2009 at around 10 am, met duty officer then after one hour he was taken to PW15 and thereafter sometime PW7 came while PW11 was already sitting with PW15. PW13 deposed that when they reached Mehrauli Tehsil at around 3 pm, one CBI officer was sitting on rear seat of car of PW7 besides PW7. It has not been made clear, who was that CBI officer? Trap Laying RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 75/85 CBI vs Iqbal Singh & Anr.
Officer PW16 was in command of the trap. As per Ex PW7/D (D6) i.e., Handing Over Memorandum, PW16 had given instructions to PW13 to act as a shadow witness and to remain close to PW7 to over hear the conversation and see the transaction of bribe amount between PW7 and A1 and PW13 was also directed to give signal by rubbing his face with his both hands, after the transaction was over; PW16 had also directed PW11 to remain with the trap party while PW7 and PW13 were also directed to give calls from their mobile phones to mobile phone of PW16 immediately after the transaction of bribe, in case they were not able to see PW16 or the other team members. Per contra, to such directions of the officer of CBI in command of trap i.e., PW16 TLO, only after passing of 10 minutes of A1 entering into the parking at spot, allegedly around 3.15 pm on 13/03/2009, it was PW15 who in zeal, without directions of PW16 had made call from his mobile phone to mobile phone of PW13 though there was no alarming time gap which could create any panic amongst trap team members of failure of their trap. Regarding the sequence of the events which took place on entry of trap team members viz., PW11, PW15, PW16 in the parking near car of PW7 allegedly around 3.15 pm, all material witnesses namely PW7, PW11, PW13, PW15, PW16 have deposed in material contradiction and at variance from version of each other and from the presented case of prosecution, as has been elicited in preceding paragraphs under the head of trap proceedings. If PW15 could not see the sequence of events taking place regarding alleged handing over of bribe money by PW7 to A2 on RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 76/85 CBI vs Iqbal Singh & Anr.
directions of A1, how could PW11, who was along with PW15, as per own version of PW11, have seen such sequence of events taking place regarding alleged handing over of bribe money by PW7 to A2 on directions of A1? Mere sifting of deposition of PW7 and PW15 reveals that sequence of occurrence of facts at the spot qua payment of bribe sum to A2 on direction of A1 is improbable to have so taken place in the manner, time span and sequence as stated by PW7, in view of call detail records Ex PW4/B (D27) reflecting calls inter se PW7 and A1 at 3.11 pm and 3.15 pm for 11 seconds and 21 seconds duration respectively, as well as in view of deposition of PW15 that after 10 minutes of alleged arrival of A1 in the parking at spot, at approximately 3.15 pm, he (PW15) made call to mobile phone of PW13 and thereafter immediately reached at the spot in the parking near the car of complainant, in the backdrop of the elicited evidence of PW11, PW13 and PW16. Claim of PW15 of having made phone call to PW13 and corresponding contents of Ex PW3/B (D7) i.e., Recovery Memo stand belied by version of PW11 since PW11, who claimed to have witnessed the whole transaction while standing besides PW15, yet, PW11 did not whisper of PW15 having made a phone call to PW13 to know the situation. PW8 deposed in material contradiction of presented case of prosecution. PW15 claimed to be trap team member and a participant of trap proceedings but he (PW15) did not whisper that in Mehrauli Tehsil on 13/03/2009, the office room of A1 was found to be locked or Keysmith was called or on opening of office room of A1 by duplicate key prepared by Keysmith, RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 77/85 CBI vs Iqbal Singh & Anr.
PW8 was found inside office room of A1 or PW8 having told CBI officials that he (PW8) was friend of A1. Even documents D8 to D18 prepared in trap proceedings do not bear signatures of PW15. Kingpin of trap is TLO PW16. PW16 is scribe of Ex PW3/B (D7) i.e., Recovery Memo, most vital document of trap proceedings. Yet, only on last page of Ex PW3/B, signatures of PW16 and PW7 are there at portions G and B respectively whereas seven prepages of Ex PW3/B (D7) though bear signatures of PWs, 3, 11, 13, 14, 15, A1, A2, Inspector R.C Sharma, Inspector Prem Nath and Inspector Hitender Adlakha but do not bear signatures of PW7 and PW16. TLO PW16 had no knowledge as to whether or not PW7 carried notice Ex PW7/B (D3) either on 12/03/2009 or 13/03/2009. Admittedly, PW8 was an acquaintance of A1. Even PW8 was unable to specify the source from where he allegedly brought the money of tune of Rs 1 lakh which he allegedly kept in the dickey of his Toyota Corona car, which money he claimed to be belonging to him but did not lodge any claim in the Court either before or later to his deposition. Yet, fact remains PW8 was admittedly found locked in the room of A1 after alleged apprehension of A1 and A2 and neither from A1 nor from A2 the key of lock of the room, from where PW8 was discovered by CBI officials, was found nor seized. Keysmith who allegedly opened the lock of office room of A1 with duplicate key was neither cited nor examined as prosecution witness. Receipt Ex PW11/N (D18) of Rs 50/ paid to Sh Ravi Singh, Keysmith bears date 13/02/2009 in the purported writing of the person receiving said money.
RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 78/85 CBI vs Iqbal Singh & Anr.
Mark P16/1 (D12) i.e., Intimation Of Arrest of A1 bearing purported signatures of S.S. Bhullar of date 13/03/2009 embodies the fact, "the IO of this case is Inspector Rajesh Chahal" i.e., PW15. Said D12 signifies of PW15 to be in command of the trap, which is per contra to presented case of prosecution. In terms of call detail records Ex PW4/B (D27) and part of Ex PW5/B (colly) (D29) there were four mobile call conversations amongst A1 and PW7 on 13/03/2009 whereas in the transcript Ex PW7/H (D24) only three mobile call conversations amongst A1 and PW7 on 13/03/2009 are detailed while the fourth mobile call conversation is not only missing in this transcript Ex PW7/H (D24) but also in the cassette Ex PW7/J (Q2). Before 1 pm on 13/03/2009, as elicited in the details in the tables above regarding aforesaid call detail records, there were two mobile call conversations amongst A1 and PW7 while in terms of the deposition of material witnesses including PW7 there is narration of only one mobile call conversation amongst A1 and PW7 on 13/03/2009 in CBI office before departure of the trap team, in the course of pre trap proceedings, elicited above. Also, in terms of call detail records Ex PW4/B (D27) and part of Ex PW5/B (colly) (D29) there were two mobile call conversations amongst A1 and PW7 on 12/03/2009, as elicited in the details in the tables above regarding aforesaid call detail records, whereas in terms of the deposition of PW7, PW11 and PW14 as well as transcript Ex PW7/H (D24) only one mobile call conversation was done amongst A1 and RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 79/85 CBI vs Iqbal Singh & Anr.
PW7 on 12/03/2009, while the other mobile call conversation is not only missing in this transcript Ex PW7/H (D24) but regarding it there is no mention in the deposition of PWs 7,11 and 14. Ex PW3/B (D7) i.e., Recovery Memo finds mention of recording of specimen voices of both accused persons for which one Specimen Voice Recording Memo was prepared. Ex PW11/F (D16) i.e., Specimen Voice Recording Memo simply embodies of recording of specimen voice of A1 on 13/03/2009 from text selected from questioned recorded conversations of A1 read by A1 and such recordings being done in DVR and transferred in cassette Ex PW13/A (S1). There is no mention in Ex PW11/F (D16) of recording of any specimen voice of A2. Even pursuant to recording of statement of PW12 in the course of investigation and coming to know of the writings of A1 in Ex PW12/A and Ex PW12/B and seizure of purported notice Ex PW7/A (D22) allegedly containing writings, suspected to be of A1, no specimen writings of A1 nor any other admitted writings of A1 were obtained nor sent for forensic opinion of Handwriting Expert to ascertain whether or not the writings and Hindi signatures in Ex PW7/A (D22) were in the hand of A1. In his statement under Section 313 Cr.P.C A1 had denied of having served notice Ex PW7/A (D22) upon PW7. Conspicuous absence of mention of the other mobile call conversation amongst A1 and PW7 on 12/03/2009; as well as of the second mobile call conversation amongst A1 and PW7 on 13/03/2009 before alleged departure of trap team from CBI office, in the course of pretrap proceedings in the deposition of material witnesses, RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 80/85 CBI vs Iqbal Singh & Anr.
documents on record, statements of material witnesses recorded in course of investigation in the backdrop of afore elicited facts and circumstances of the matter in hand raises reasonable suspicion over the genuineness, correctness of the presented case of the prosecution. Recorded conversations in cassette Ex PW7/J (Q2) do not contain any purported conversation in the voice of A2 despite the fact that allegedly A1 made call to A2 and called A2 to spot in parking and had conversation with A2 in the presence of PW7 who was having DVR on his person in which the conversations were being recorded. Even the recorded conversations per se do not contain the alleged 10 minutes duration conversations amongst A1 and PW7 at spot in parking, as alleged by PW7 while the transcript Ex PW7/H (D24) no where reflects purported conversations at spot in parking amongst A1 and PW7 could be of stretch of 10 minutes duration. Forensic report Ex PW 9/B (D25) embodies of cassette Ex PW7/J (Q2) to be containing conversations of total duration of 5 minutes and 13 seconds only. Transcript sent to CFSL was in 24 pages whereas transcript Ex PW7/H (D24) filed in Court is of 15 pages. Primary evidence of digital voice recorder used for recordings of mobile call conversations and spot conversations has not been seized, nor recordings therein have been preserved nor such recordings have been displayed nor such recordings have been sent for opinion of forensic expert to rule out tampering, manipulation of data. There was no impediment for premier investigating agency CBI to spend few thousand rupees on one DVR to be used as primary evidence in a trap case like RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 81/85 CBI vs Iqbal Singh & Anr.
present case to fortify its presented case with production of primary recording device containing corroborative piece of evidence in form of tape recorded statements to show its fairness in investigation. Even no video recordings nor photography were done nor produced in respect of pretrap proceedings, post trap proceedings, search proceedings, crime scene, prior to or later to apprehension of accused persons, which were feasible/possible, keeping in view the provision 14.16 in Chapter 14 of CBI Manual containing General Instructions Regarding Investigation & Enquiries. In the event of any such digital still photography and videography done for such proceeding as aforesaid, the images were required to be downloaded/transferred, in the presence of witnesses, to a 'write only' compack disk (CD) or 'write only' digital video disk (DVD) for preservation in terms of aforesaid provision 14.16 in Chapter 14 of CBI Manual. Nothing of this sort was done by concerned officers of investigating agency nor is there any explanation by any officers of investigating agency or prosecution for non compliance of the afore elicited provision 14.16 in Chapter 14 of CBI Manual, required to be followed as an act of fair investigation in terms of MOTTO, MISSION & VISION of Central Bureau of Investigation embodied in the CBI Manual. Crucial witness namely Sh Praveen, driver of PW7 who was allegedly present at the spot has neither been examined in investigation nor cited nor examined as a prosecution witness by the prosecution. All aforesaid in the backdrop of elicited evidence of DW2 and DW3 cumulatively cast shadow of doubt over presented case of prosecution.
RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 82/85 CBI vs Iqbal Singh & Anr.
90. No cogent, wholly reliable, trustworthy legally admissible evidence, oral or documentary, direct or circumstantial, which is above board, has been brought on record to prove of any prior meetings of minds between A1 and A2 in respect of commission of the offences in question or that for commission of offences in question, A2 acted as an agent of A1 or there was agreement on part of A2 with A1 to accept illegal gratification on part of A1 or of any complicity of A2 with A1 in respect of commission of offences in question. Mere existence of few call conversations of dates 12/03/2009 and 13/03/2009 interse A1 and A2 in terms of CDRs Ex PW4/B (D27) and Ex PW6/B (D28) in no way prove complicity or prior meetings of minds of A2 and A1 in respect of commission of offences in question. Suspicion, howsoever grave, cannot be a substitute of proof beyond reasonable doubt to prove commission of offence of conspiracy against arraigned accused.
91. When read as a whole, elicited testimonies of PW7, PW11, PW13, PW14, PW15 and PW16 embody entirely different versions of manner and sequence of occurrence of the (1) alleged demand of bribe; (2) verification proceedings conducted on 12/03/2009; (3) pretrap proceedings conducted on 13/03/2009; (4) trap proceedings conducted on 13/03/2009 including alleged acceptance of bribe money by A2 on the asking of A1, which all facts have been testified by these material witnesses in material contradictions bringing forth absolutely new cases RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 83/85 CBI vs Iqbal Singh & Anr.
more than one, as per their versions, elicited herein before, reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made. On reading the entire prosecution evidence, the testimonies of PW7, PW11, PW13, PW14, PW15 and PW16 can be classified as neither wholly reliable nor wholly unreliable as classified in the case of Vadivelu Thevar v. The State of Madras, AIR 1957 SC 614. It would be extremely hazardous to place implicit reliance upon such testimonies of PW7, PW11, PW13, PW14, PW15 and PW16 suffering from material contradictions, severe infirmities, material improvements, additions and inherent improbabilities going to the root of the matter to check and shake basic version and core of the prosecution case and thereto convict any or both accused in the backdrop of existing embellishments, severe infirmities in the prosecution case, elicited in detail in preceding paras. Accordingly, no new case can be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made. The only available course to be made is discard the prosecution evidence in toto. (See Zwieolae Areal vs. State of Madhya Pradesh, AIR 1954 SC 15 and Balaka Singh and Others vs The State of Punjab, AIR 1975 SC 1962). Precedents relied by prosecution are embodying sets of facts and circumstances which are entirely different from the set of facts and circumstances of the case in hand, as elicited herein before, so are of no help to prosecution to secure RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 84/85 CBI vs Iqbal Singh & Anr.
conviction of accused.
92. Accordingly, I am of the considered opinion that the prosecution has failed to prove its case against accused Iqbal Singh (A1) and accused Amit Kumar Sharma (A2) beyond reasonable doubt. These accused persons are given benefit of doubt and acquitted for the offences charged. Their bail bonds are cancelled. Sureties are discharged.
93. A copy of judgment be given to the Central Bureau of Investigation.
94. Ahlmad is directed to page and bookmark the file so as to enable digitization of the entire record.
95. File be consigned to record room.
(Gurvinder Pal Singh) Announced in open court Special Judge (PC Act)(CBI)6, today i.e., 25/02/2014 Patiala House Court, New Delhi. Deepika RC No. 18A/2009/CBI/ACB/New Delhi CC No. 12/12 85/85