Delhi District Court
Cbi vs (1) Indira Prasad Uniyal on 17 October, 2011
IN THE COURT OF SHRI P.S. TEJI : DISTRICT JUDGE
(EAST) cum SPECIAL JUDGE (CBI), KARKARDOOMA
COURTS, DELHI.
AC No.08/2006
Unique Case ID No.02402R0345512006
FIR No.RC DAI2005A0045
Under Section 7 and 13(2) r/w Sec.13(1)(d) of PC Act, 1988.
CBI Versus (1) Indira Prasad Uniyal
S/o Late Sh BhagwatiPrasadUniyal
R/o C7/4, Safdarjung Development
Area, Staff Quarters, New Delhi.
(2) Sri Ram Sharma
S/o Late Khillu Ram Sharma
R/o H.No. 20, Gali No. 26,
Molarbandh Extension, Badarpur,
Delhi.
Date of Institution : 05.07.2006
Date of judgment reserved : 01.10.2011
Date of judgment : 14.10.2011
JUDGMENT
Two accused persons, namely, Indira Prasad Uniyal AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 1 of 59 and Sri Ram Sharma (both on bail) have been sent to face trial by the Anti Corruption Branch of the CBI, for the offences punishable under Section 7 & 13(2) read with Section 13(1)(d) of PC Act, 1988. 2 At the time of commission of the offence, the accused Indira Prasad Uniyal was posted as Jr. Engineer in DDA whereas accused Sri Ram Sharma was posted as Supervisor/ Chainman in DDA.
3 Briefly stating, the facts of the present case are that Sh. Rajeev Kumar (PW1) (hereinafter shall be referred as complainant) made a written complaint dated 9.8.2005 Ex.PW1/A to the CBI to the effect that he was residing at Priyadarshini Vihar, Delhi and was in the business of supplying medicines to Government Hospitals. It is also mentioned that he was a having a plot/house bearing no.15/99, Geeta Colony, Delhi where he used to keep his stock of medicines. Accused I.P. Uniyal, JE and Sri Ram Sharma, Supervisor had sealed his said house around three months ago for which he was continuously in touch with them for desealing. He met accused Sri Ram Sharma in Geeta Colony on 8.8.2005 and he demanded a bribe of Rs.20,000/ for desealing and arranged a talk on telephone with accused I.P. Uniyal, JE who agreed to deseal his AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 2 of 59 house on payment of bribe of Rs.15,000/ and had asked the complainant to come at the spot with Rs.15,000/ in the afternoon of 9.8.2005. Accused I.P. Uniyal also said to the complainant that until Rs.15,000/ were paid, desealing proceedings could not commence. As the complainant was not willing to pay bribe to accused persons, he approached the CBI.
4 On the basis of complaint Ex.PW1/A, FIR Ex.PW15/B (copy Ex.PW15/A) was registered and investigation was entrusted to Inspector N.V.N. Krishnan (PW15) who arranged two independent witnesses, namely, Kunwar Singh (PW2) and Rajender Kumar Sharma (PW14). Investigating Officer (PW15) constituted a trap team consisting independent witnesses and CBI officials. Complainant (PW1) was introduced to them. Complainant (PW1) produced 22 GC notes of Rs.500/ each and 40 GC notes of Rs.100/ each which were treated with phenolphthalein powder. Demonstration regarding reaction of phenolphthalein powder with solution of sodium carbonate was given and proceedings in this regard were recorded in handing over memo Ex.PW1/B. Personal search of complainant (PW1) was conducted and it was ensured that he was not carrying anything except his mobile phone no. AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 3 of 59 9891200001. Tainted GC notes were kept by the complainant (PW1) in his right side pant pocket and he was directed to hand over same to the accused on his specific demand or to hand over to any other person on direction of accused. Digital recorder was also given to the complainant (PW1) to record the conversation. Specimen voice of both the independent witnesses were recorded in the digital recorder. Thereafter, accused I.P. Uniyal was contacted by the complainant (PW1) from his mobile no.9891200001 on mobile no.9811081297 of accused I.P. Uniyal and conversation between them was recorded in the said digital recorder. That conversation confirmed demand of bribe. Recorded conversation was transferred in a cassette Ex.P70, its wrapper is Ex.P70A and inlay card is Ex.P70B. Transcription Ex.PW2/F of the said recorded conversation was prepared. In this regard, pretrap verification memo Ex.PW14/C was prepared. Independent witness Kunwar Singh (PW2) was directed to act as shadow witness, watch the transaction of bribe and give signal by scratching his head with both his hands on completion of transaction. Thereafter, trap team left for the spot at about 12.25 PM. 5 Shadow witness Kunwar Singh (PW2) sat in Santro Car of the complainant (PW1). On the way, complainant (PW1) AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 4 of 59 allegedly received a call on his mobile phone from accused I.P. Uniyal from telephone no.22465586 wherein complainant was informed to meet at the premises of Ghanshyam Property Dealer in Block No.17, Geeta Colony, Delhi, therefore, complainant (PW1) along with shadow witness (PW2) proceeded to the said premises and picked up accused I.P. Uniyal and Sri Ram Sharma from there. In the car of complainant (PW1), accused I.P. Uniyal sat on the front seat, accused Sri Ram Sharma sat on the rear seat along with the shadow witness (PW2). CBI team took suitable position near property the house no.15/99, Geeta Colony, house of complainant. At about 1.30 PM, accused I.P. Uniyal and Sri Ram Sharma arrived at the spot and another person Laxmi Chand, Security Guard of DDA also came there on motorcycle. Accused Sri Ram Sharma came out of the car, took a hammer from an adjacent shop and proceeded towards house no.15/99, Geeta Colony along with Laxmi Chand whereas accused I.P. Uniyal remained sitting in the car of the complainant (PW1) besides shadow witness on the rear seat. Laxmi Chand took hammer from accused Sri Ram Sharma and broke open the lock of premises of complainant (PW1) and thereafter both of them returned to the car of the complainant with the hammer, broken lock and cloth used for AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 5 of 59 sealing the lock. At about 1.40 PM, shadow witness (PW2) alighted from the car of the complainant and gave predecided signal, on which CBI team rushed towards the car of the complainant (PW1). Accused persons were challenged the accused persons at which accused I.P. Uniyal took out the bribe amount from his right side pant pocket and dropped it on the seat of car on which he was sitting. Investigation Officer (PW15) and Anil Kumar caught hold of left and right wrist of accused I.P. Uniyal. Inspector C.K. Sharma and SI R.C. Sharma caught hold of wrists of accused Sri Ram Sharma whereas Inspector Prem Nath and HC Jagdish caught hold of Laxmi Chand. Independent witness Rajender Kumar Sharma (PW14) on the instructions of the investigating officer (PW15) picked up the bribe amount of Rs.15,000/ in the form of GC notes Ex.P1 to Ex.P62 from the seat of car of the complainant (PW1) which was dropped by accused I.P. Uniyal. Number of recovered GC notes tallied with the numbers mentioned in handing over memo Ex.PW1/B. Shadow witness Kunwar Singh (PW2) informed that accused I.P. Uniyal and Sri Ram Sharma while boarding the car of the complainant objected to his presence in the car, however they were informed that he was supervisor of the complainant (PW1). He also informed that when AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 6 of 59 accused Sri Ram Sharma and Laxmi Chand returned back to the car of the complainant after breaking open the lock, accused I.P. Uniyal demanded bribe amount from the complainant by gesture by extending his right hand towards him. On this, complainant (PW1) handed over tainted bribe amount to accused I.P. Uniyal and he received it with his right hand and kept the same in his right hand side pant pocket. Accused I.P. Uniyal, Sri Ram Sharma and Laxmi Chand were apprehended. Digital recorder was taken back from the complainant and played which confirmed the demand and acceptance of bribe. Spot conversation was transferred in a audio cassette Ex.P71, its cloth wrapper is Ex.P71B and inlay card is Ex.P71A. A transcription Ex.PW2/G of the spot conversation was prepared. 6 Right hand wash and inner lining of right side pant pocket wash of accused I.P. Uniyal were taken in the solution of sodium carbonate which turned into pink colour. Said washes were transferred to bottles. Bottle of right hand wash was marked as RHW Ex.P63 and bottle of right side pant pocket wash was marked as RSPPW Ex.P64. Left side front seat cover wash of car of complainant was also taken in the solution of sodium carbonate which turned into pink colour. Said wash was also transferred to bottle AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 7 of 59 Ex.P65. Pant Ex.P66 of accused I.P. Uniyal was seized. Hammer Ex.P69 and broken lock Ex.P68 with cloth were also taken into possession. The proceedings conducted at the spot were recorded in recovery memo Ex.PW2/A. 7 A rough site plan Ex.PW2/D was prepared. Accused persons were arrested. Accused I.P. Uniyal was arrested vide arrest cum personal search memo Ex.PW2/B whereas accused Sri Ram Sharma was arrested vide memo Ex.PW2/C. 8 On 10.8.2005, specimen voice of accused I.P. Uniyal was taken vide Specimen Voice Recording Memo Ex.PW2/E. It was recorded in cassette Ex.P72 and its cloth wrapper is Ex.P73. 9 Specimen voice and questioned voices were sent to CFSL which were examined by Dr. Rajender (PW3) vide report Ex.PW3/A. Washes were also sent to CFSL which were examined in laboratory by Sh. P. Nath (PW11) vide his report Ex.PW11/A. 10 During the course of investigation, files Ex.PW6/A and Ex.PW6/B pertaining to property no.15/100 regarding demolition and sealing thereof were seized vide seizure memo Ex.PW12/A. Pointing out memo Ex.PW6/C regarding aforesaid property was prepared by the Investigating Officer at the instance of Sh. Sachin AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 8 of 59 Malhotra (PW7). Sanction orders Ex.PW18/A and Ex.PW19/A for prosecution of accused I.P. Uniyal and Sri Ram Sharma respectively were obtained. Since Laxmi Chand was not found involved with accused persons for demand and acceptance of bribe and he simply broke open the lock at the directions of accused I.P. Uniyal, he was not chargesheeted.
11 After completion of the investigation, the challan was put up in the court where the accused persons were supplied with the copies of the chargesheet and the documents of the CBI. 12 On 21.9.2007, charges under Section 120B IPC read with Section 7 and 13(1)(d) of P.C. Act and also under Section 7 & 13(2) read with 13(1)(d) of P.C. Act were framed against both the accused persons. Separate charge under Section 7 of P.C. Act was framed against accused I.P. Uniyal. Accused persons pleaded not guilty to the charges framed against them and claimed trial. 13 The prosecution has examined 19 witnesses in support of its case. Out of those witnesses, PW1 Sh. Rajeev Kumar Arora is the complainant. PW2 Sh. Kunwar Singh and PW14 Sh. Rajender Kumar Sharma are the independent witnesses. PW3 Sh. Rajender examined voices whereas PW1 Sh. P. Nath examined the AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 9 of 59 washes in CFSL. PW4 Sh. Prem Singh Bhatia and PW5 Surender Kumar are the owner/resident of property no.15/A100, Geeta Colony. PW6 Sh. Anil Behki, PW8 Sh. S.N.S. Tyagi, PW9 Sh. Dharamvir Sharma and PW10 Sh. Ramesh Chand were associated with sealing of premises of the complainant. PW7 Sh. Sachin Malhotra had pointed out the property of complainant. PW12 Sh. Sunil Kumar Jain and PW13 Sh. Rajpal handed over the files of the aforesaid property to the CBI. PW18 Sh. Dinesh Rai and PW19 Sh. Sunil Sharma gave sanction order against accused I.P. Uniyal and Sri Ram Sharma for their prosecution. PW16 Inspector Prem Nath remained associated with the investigation carried out by PW15 Inspector N.V.N. Krishnan and PW17 SI Praveen Ahlawat. 14 Statements of both the accused have been recorded under Section 313 Cr.PC. The accused persons have either showed their ignorance or denied the present case against them. Accused I.P.Uniyal has stated that he has been falsely implicated in the present case. He has stated that complainant had raised unauthorized construction over property bearing No. 15/100, Geeta Colony regarding which a complaint was made by Sri Ram Sharma which he forwarded and present case is a revenge of his official act. He has AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 10 of 59 further stated that complainant deceitfully called him and on his request, he sat in his car as he wanted to show him papers of the property. He also stated that complainant tried to put money into his pocket, therefore, he caught hands of the complainant by saying ye kya kar raho ho, ye kya kar rahe ho and when he immediately got down, he was apprehended by CBI officials and was given beatings. Thereafter, he was taken to the office of the complainant which was situated 34 Kms away. He has also stated that complainant is in a habit to falsely implicate government officials and to blackmail them. 15 Accused Sri Ram Sharma in his statement has stated that complainant was hostile towards him as his property was partly demolished and sealed at his complaint. He denied having sat in the car of the complainant, breaking open lock of the property of the complainant. According to him when he was passing through the area, he was arrested by CBI at the instance of the complainant. Accused persons have examined one defence witness, namely, DW1 Sh. Syed Faizal Huda.
16 I have heard learned PP for the CBI as well as ld.
Counsels for accused persons. Written submissions on behalf of accused I.P.Uniyal have also been filed. I have also carefully gone AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 11 of 59 through their submissions and the material available on record. 17 The learned PP for the CBI has argued that from the statements of the complainant, independent public witnesses, who remained associates in the proceedings conducted by the investigating agency and the other material, the CBI has proved its case against the accused persons that they criminally conspired with each other to demand and accept bribe from the complainant. It is further argued that the prosecution has established beyond reasonable doubt regarding the demand and acceptance of bribe of Rs.15,000/ by accused I.P.Uniyal. The acceptance and recovery of bribe of Rs. 15,000/ by the accused has duly been proved on the record. He has further argued that being public servant, accused persons have demanded and accepted the illegal gratification from the complainant for desealing the premises of the complainant.
18 On the other hand, the learned defence counsels for accused persons have argued that there is no evidence or material on record to connect the accused with the allegations of conspiracy. It is further argued that sanctions accorded are defective and the sanctioning authorities passed the sanction orders in mechanical manner. The prosecution could not establish the demand of bribe at AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 12 of 59 the initial stage as well as at the time of trap. It is argued that there is no evidence reflecting any meeting of mind between accused persons. It is further argued that there is no consistency in the evidence of witnesses, independent witnesses have not supported the case of the prosecution. It is further argued that witnesses have made different statements at different stages and there are discrepancies in their statements, therefore, their testimony can not be relied upon. It is further argued that accused persons are entitled for acquittal as the prosecution has failed to prove its case beyond reasonable doubt. 19 The necessary ingredients in trap cases are as under :
(1) Valid sanction for prosecution of the accused;
(2) Demand of bribe at previous stage;
(3) Demand, acceptance and recovery of bribe amount at the time of trap beyond reasonable doubt.
20 Apart from the above ingredients of trap case, the Courts are also required to look into the defence taken by the accused. The Courts are required to examine minutely whether the defence taken by the accused is probable one or not. If the accused fails to probabilise his defence and Court comes to the conclusion that the defence of the accused is improbable, then adverse inference is warranted against him as provided U/s 20 of the P.C. Act. AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 13 of 59 Sanction 21 It is argued on behalf of the accused I.P.Uniyal that no Court shall take cognizance of an offence punishable under P.C.Act against a public servant except with previous sanction. It is further argued that sanction authority must be competent to remove the public servant and it necessitates that sanctioning authority must apply his mind before grant of sanction. It is further argued that no document was placed by CBI before the Sanctioning Authority and both sanction orders were drafted by CBI officers. It is further argued that the sanction accorded in the present case is invalid and once sanction order has been held to be invalid, merits of the case need not be gone into. Ld. Counsel for accused Sri Ram Sharma has also argued that sanction accorded against him is defective one. 22 On the other hand, Ld. PP for the CBI has argued that Sanctioning Authorities themselves proved the sanction orders and it is settled law that when Sanctioning Authority himself appears in Court to prove sanction order, unless there is anything brought on record which may vitiate the sanction order, the sanction order has to be taken as proved.
23 In support of his arguments, Ld. Defence counsel has AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 14 of 59 relied upon judgments reported as Mohd. Iqbal Ahmed vs. State of Andhra Pradesh 1979 AIR SC 677 in which it has been held that it is incumbent on the prosecution to prove that a valid sanction had been granted by the Sanctioning Authority after it was satisfied that a case had been made out constituting the offence. It was further observed that this should be done either by producing the original sanction which itself contains the facts constituting the offence and grounds of satisfaction or by adducing evidence aliunde showing the facts placed before the Authority and satisfaction arrived at by it. He has also relied upon judgment in case of State through CBI vs. Ravinder Singh 1995(2) Crimes 85 wherein it was held that when statements recorded under section 161 Cr.P.C. and material or report under section 173 Cr.P.C. was not placed before Sanctioning Authority, there was total non application of mind while granting sanction. Next judgment relied upon is in case of Om Prakash vs. State and others ( CBI) 2009(2) JCC 1210 in which sanction order was declared to be invalid and in that context, it was observed that Sanctioning Authority is not supposed to put a date and sign the sanction order. If some details of the nature of documents perused is reflected in sanction order, then it gives an opportunity to the Court to consider the extent AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 15 of 59 of application of mind by the Sanctioning Authority while granting sanction. Next judgment relied upon is State of Karnataka vs. Ameerjan ( 2007) 11 SCC 273 in which it was held that order granting sanction must be demonstrative of fact that there had been proper application of mind on the part of Sanctioning Authority. He has further relied upon Deewan Chand vs. State 1982 Cri.L.J. 720 and M.S.Kuppuswami vs. State 1992 Cri.L.J. 56 on similar aspects. 24 Section 19 of the Act deals with the sanction required for prosecuting the public servant. The said section reads as under:
"19.Previous sanction necessary for prosecution(1) No court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction
(a) In the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) In the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;
(c) In the case of any other person, of the authority AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 16 of 59 competent to remove him from his office."
25 Section 19 of the Act provides protection to an accused who happened to be public servant at the time of taking the cognizance by the court. The purpose of sanction under section 19 of the Act to have the approval of the competent authority to remove the accused from the office, is just because that at the time of taking the cognizance, he was a public servant.
26 In order to prove the sanction granted for the prosecution of the accused I.P.Uniyal, the prosecution has examined Shri Dinesh Rai (PW18), the then Vice Chairman of the DDA. He has deposed that during the year 2006, he was working in the above capacity and he was competent to remove accused I.P.Uniyal, J.E., DDA from service. He further deposed that after going through the documents put by CBI and independently applying his mind, he accorded sanction for prosecution of accused I.P.Uniyal, vide order dated 28.6.2006 Ex. PW18/A. During cross examination, he stated that CBI had not put the present matter for sanction, rather matter was put up by his office i.e. Vigilance Section. He stated that Chairman of DDA is Lt. Governor and executive work is being done by Vice Chairman. He denied that Lt. Governor/ Chairman of DDA is only AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 17 of 59 competent authority to accord the sanction. He further stated that language of sanction was dictated by him to his staff, same was prepared and put up before him. Vigilance Department put forward the request of CBI along with file to examine and accord the sanction. He had gone through the cassette by playing the same and also gone through the transcription. He further stated that he had gone through the chargesheet also before according sanction. He denied that no material was placed before him for examination to accord the sanction. He also denied that he accorded sanction in mechanical manner and just copied it out from the chargesheet without due application of mind.
27 To prove sanction against accused Sri Ram Sharma, prosecution has examined Sh. Sunil Sharma ( PW19). He deposed that during the year 2006, he was posted as Commissioner ( personnel) DDA. On 27.06.2006, he granted sanction for prosecution of accused Sri Ram Sharma, Chainman/Supervisor, on the basis of request received from CBI. He had gone through the statements of witnesses and documents of the case and then independently arrived at the decision before granting sanction. He proved the sanction order as Ex. PW19/A and deposed that being AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 18 of 59 Commissioner( Personnel), he was competent to remove accused Sri Ram Sharma.
28 During cross examination, he stated that he did not consult anybody before according sanction and awarded the same on the basis of perusal of record. He further stated that property was the part of jurisdiction of Geeta Colony where accused Sri Ram Sharma was posted. He denied that he accorded sanction without application of mind and in mechanical manner. He also denied that he just put his signatures on draft sanction order sent by CBI. 29 In the present case, the CBI has produced the sanctioning authorities, namely, Sh.Dinesh Rai (PW18) and Sh. Sunil Sharma(PW19) who duly proved the sanction orders of the accused persons as Ex.PW18/A and Ex.PW19/A for their prosecution. The perusal of sanction orders Ex. PW18/A and Ex.PW19/A shows that the sanctioning authorities after carefully examining the material such as complaint, FIR, statement of witnesses, handing over memo, recovery memo, CFSL reports, Audio Cassette and other documents and after applying their mind, granted the sanction for the prosecution of the accused persons.
30 Consequently, in view of the above mentioned AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 19 of 59 discussion, it is held that the Sanctioning Authorities i.e. PW18 & 19 were competent to accord the sanction for the prosecution of the accused persons. It has been demonstrated from their testimony and sanction orders that material was produced before them which was made basis for passing sanction orders. Though, accused persons have challenged the competency of Sanctioning Authorities to pass sanction orders but have not produced any material or evidence to show that they were not competent to pass such sanction orders. The arguments of Ld. Defence counsel that sanction orders are defective and invalid as the same do not show application of mind, is not borne out of record. The Sanctioning Authority while entering into the witness box duly proved the sanction orders. Sanction orders also reveal that material which is part of judicial record was placed before the Sanctioning Authorities and was gone into by them before according sanctions.
31 Consequently, I am of the considered opinion sanctions accorded for prosecution of accused persons are proper, valid and have been passed after due application of mind. Criminal Conspiracy 32 The next question for consideration is whether there AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 20 of 59 was any criminal conspiracy between the accused persons for demand and acceptance of the bribe amount from the complainant (PW1). The essence of criminal conspiracy is the unlawful combination and an agreement of minds between two or more accused persons whereby they cooperate to accomplish an object. In the present case, it is alleged that both the accused persons in furtherance of their common intention, criminally conspired to demand and accept the bribe amount from the complainant (PW1).
33 It has been argued by Ld. Defence counsel that there is no evidence on record which could connect the accused persons for the commission of conspiracy. It is further argued that there is no evidence which could reflect any meeting of mind between accused persons and even the complainant (PW1) and shadow witness (PW2) have not thrown any light to prove the conspiracy. 34 Case of the prosecution is that both the accused persons demanded the bribe from the complainant (PW1) while entering into a criminal conspiracy with each other. To prove the conspiracy, prosecution has examined the complainant (PW1). He deposed that on 9.8.2005 he had gone to CBI office and lodged complaint Ex PW1/A against both the accused persons. He deposed AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 21 of 59 that he was having a house at plot No. 15/99, Geeta Colony, Delhi and the same was sealed by DDA 2/3 months prior to his lodging complaint. It was probably sealed in May/June, 2005. He further deposed that Supervisor Sri Ram and I.P.Uniyal used to meet him in connection with desealing of his premises and demanded bribe from him. He specifically deposed that accused Sri Ram demanded Rs. 20,000/ for getting his premises desealed. On 8.8.05, accused Sri Ram came to him and said that if he paid Rs. 20,000/, his premises would be desealed and asked him to talk to I.P.Uniyal on telephone. Accused Sri Ram telephoned I.P.Uniyal from his mobile phone and then gave his mobile phone to him(PW1) and he talked to I.P.Uniyal. Accused I.P.Uniyal told him that if he paid Rs.20,000/, his premises would be desealed tomorrow to which he replied that Rs.20,000/ was too much and same might be reduced. Accused I.P.Uniyal reduced the amount to Rs. 15,000/ and directed him to be ready with the amount.
35 Perusal of complaint Ex.PW1/A shows that it is also mentioned therein that accused Sri Ram Sharma demanded bribe of Rs. 20,000/ from the complainant on 8.8.05 to deseal his premises and he arranged a talk of complainant with his coaccused I.P.Uniyal AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 22 of 59 during which he reduced the amount of bribe to Rs. 15,000/. It is also mentioned in the complaint that accused I.P.Uniyal agreed to accept the bribe on 9.8.05 at the spot and to deseal his premises. 36 It is also deposed by PW1 that in CBI office, he contacted accused I.P.Uniyal on his mobile phone. The said conversation was recorded in cassette Ex P70. Complainant identified his voice as well as voice of accused I.P.Uniyal in the said cassette when it was played in the Court. Transcription of said conversation is Ex.PW2/F. It is mentioned therein that complainant said to accused I.P.Uniyal that a call was received from accused Sri Ram who was telling to reach the spot.
37 It is also deposed by complainant(PW1) that he picked both the accused from the office of Ghanshyam Properties where both of them sat in his car and proceeded to the spot. Company of both the accused with complainant in his car has also been stated by shadow witness (PW2). Another independent witness PW14 Rajender Kumar Sharma has also stated that he had seen both the accused alighting from the car of complainant at the spot. 38 The conversation which took place in the car of complainant was recorded in cassette Ex.P71 and its transcription is AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 23 of 59 Ex.PW2/G. Complainant identified his voice as well as voice of both the accused in cassette Ex.P71. The transcription Ex.PW2/G also shows that both the accused were accompanying complainant at that time.
39 The aforementioned evidence clearly establishes that both the accused were part of a criminal conspiracy to demand and accept bribe from the complainant. It has come on record that on 8.8.05, accused Sri Ram Sharma had demanded bribe of Rs. 20,000/ from the complainant and arranged a talk with his coaccused I.P.Uniyal who reduced the amount of bribe to Rs.15,000/. To fulfill the object of criminal conspiracy, both the accused met the complainant on 9.8.05 to take bribe. The contents of complaint Ex.PW1/A that both the accused were having criminal conspiracy, have been duly corroborated by the testimony of complainant(PW1). Even his testimony has duly been corroborated by independent witnesses (PW2 and PW14), Investigating Officer (PW15), Inspector Prem Nath(PW16) as well as recorded conversation in cassettes Ex.P70 and Ex.P71 and also transcriptions Ex PW2/F and Ex.PW2/G. 40 The cumulative effect of circumstances as set out AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 24 of 59 above is that there was a criminal conspiracy between both the accused persons in demanding and accepting bribe from the complainant and prosecution has duly established that to accomplish the goal of said conspiracy, accused I.P.Uniyal accepted bribe from the complainant in the company of his coaccused Sri Ram Sharma. Consequently, both the accused persons are held guilty for commission of offence of criminal conspiracy under section 120B IPC.
Demand of bribe at previous stage 41 Our own Hon'ble High Court in case titled Ram Chander Versus State (Reported in 2009 Cri. L.J. 4058) has framed the guidelines in trap cases. In the said judgment, it was observed that to succeed in trap cases, the prosecution is obliged to prove the previous demand of bribe, its acceptance and the recovery of tainted money. It was further observed that the demand can be proved by the testimony of complainant as well from the complaint made by him.
42 To prove the demand of bribe by accused persons at previous stage, prosecution has examined the complainant (PW1). Complainant (PW1) in his testimony has deposed that he made AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 25 of 59 complaint dated .9.8.2005 Ex.PW1/A to the CBI. His complaint was against accused I.P.Uniyal and Sri Ram Sharma to the effect that his house at plot No.15/99, Geeta Colony,Delhi was sealed by DDA three months prior to the making of complaint. He was constantly in touch with both the accused but they did not agree to deseal his premises. On 8.8.05, accused Sri Ram Sharma met the complainant and demanded bribe of Rs. 20,000/ to deseal his premises and arranged his talk with accused I.P.Uniyal who reduced the bribe amount to Rs. 15,000/. It is also mentioned that accused I.P.Uniyal asked complainant to pay Rs. 15,000/ on 9.8.2005 at the spot and then only his premises would be desealed.
43 Investigating Officer (PW15) has deposed that complaint Ex.PW1/A was marked to him. He arranged independent witnesses in CBI office and asked complainant to make a call to accused. A digital recorder was arranged and said conversation was recorded vide verification memo Ex.PW14/C. Cassette Ex.P70 was played in the Court and Investigating Officer identified the same. 44 Complainant (PW1) also deposed that in CBI office, he made a call to accused I.P.Uniyal from his mobile phone which was recorded. During talks, accused I.P.Uniyal asked him that he AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 26 of 59 would reach Geeta Colony on time fixed and directed him to bring the money and that he would deseal his property on that day itself. Complainant identified his voice as well as voice of accused I.P.Uniyal in cassette Ex.P70 in which talks with regard to demand of bribe was recorded. Perusal of its transcription Ex PW2/F shows that complainant said " maghar vah sri ram ne bol diya tha to kar diye the" to which accused I.P.Uniyal agreed and asked complainant that he was reaching to him.
45 From the testimony of complainant as well as complaint Ex.PW1/A, it has been established that on 8.8.05, both the accused demanded bribe from the complainant(PW1). On said date, initially accused Sri Ram Sharma demanded Rs. 20,000/ from the complainant and arranged his talks with accused I.P. Uniyal. During those talks, accused I.P.Uniyal reduced the bribe amount to Rs. 15,000/ and agreed to accept the same on the next day i.e. 9.8.05 at the spot i.e. premises of complainant. The testimony of complainant has duly been corroborated by recorded conversation in cassette Ex.P70, voices in which have duly been identified by complainant. His testimony has also been corroborated by transcription Ex.PW2/F which also confirms that accused I.P.Uniyal demanded bribe from the AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 27 of 59 complainant and was coming to the complainant to receive the same on 9.8.2005.
46 The conversation which took place in CBI office on 9.8.05 has duly been corroborated by Investigating Officer (PW15). Even the independent witness Kunwar Singh(PW2) corroborated testimony of complainant(PW1) by saying that in CBI office, complainant made telephonic call to accused Uniyal which was recorded and replayed. He deposed that recording revealed that Uniyal called complainant at Geeta Colony. So, the testimony of complainant has also been corroborated by independent witness(PW2). CFSL report Ex.PW3/A also corroborates the contents of complaint Ex.PW1/A and the testimony of the complainant (PW1) that there was demand of bribe of Rs.20,000/ by accused Sri Ram Sharma which was reduced to Rs. 15,000/ by accused I.P.Uniyal previous to the making of complaint to the CBI and also before trap was laid.
47 In view of the above evidence discussed in detail, I am of the considered opinion that prosecution has duly established that both the accused demanded bribe from the complainant(PW1). It has duly been established that on 8.9.05, accused Sri Ram Sharma AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 28 of 59 demanded bribe of Rs.20,000/ from the complainant (PW1) for de sealing his premises which was reduced to Rs. 15,000/ accused I.P.Uniyal during talks on telephone. The said demand of bribe was made by both the accused previous to making of complaint to CBI. The prosecution has also duly established that accused I.P.Uniyal demanded the bribe from the complainant (PW1) at the time of his conversation which was arranged in CBI office and agreed to accept the same at the spot, before the trap was laid.
Demand, acceptance and recovery 48 To prove the demand, acceptance and recovery of bribe at the spot, complainant (PW1) has deposed that in CBI office in the presence of independent witnesses, he produced Rs.15,000/ consisting of 22 notes of Rs. 500 each and 40 GC notes of Rs. 100/. Number of notes were shown to all the members and one white colour powder was applied on GC notes. One of the independent witnesses was asked to touch the powder treated GC notes and it was explained that when hands of accused who had touched the notes would be washed, solution would turn into pink. The said notes were kept in his right side pant pocket. A digital recorder was handed over to him to record the conversation. One of the independent witnesses was AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 29 of 59 directed to accompany him and watch the transaction of bribe between him and accused. All the proceedings in the CBI office were recorded in handing over memo Ex.PW1/B and he signed the same. They started from CBI office in two cars. One car belonged to him in which shadow witness Kunwar Singh sat with him. They reached Geeta Colony at the office of Ghanshyam Properties and met Laxmi Chand and accused I.P.Uniyal and Sri Ram Sharma. Accused Sri Ram and I.P.Uniyal sat in his car whereas Laxmi Chand was on his motorcycle. I.P.Uniyal sat with him on front seat whereas witness Kunwar Singh and accused Sri Ram sat on rear seat. Thereafter, they reached near 15/99, Geeta Colony where accused I.P.Uniyal told accused Sri Ram Sharma to break the seal and bring to him. Laxmi Chand and Sri Ram broke the seal and brought the same with them. Accused Sri Ram told that lock was to be broken with hammer and brought the hammer and broke the lock. Complainant further deposed that accused I.P.Uniyal asked for money from him which he paid. It was Rs. 15,000/ which was paid by him. Accused I.P.Uniyal kept it in his right side pant pocket after taking same with right hand. He gave signal to CBI officials and accused was apprehended. He further deposed that before apprehension of accused I.P.Uniyal, he AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 30 of 59 took out money from his pocket and kept on the seat of car. Accused Sri Ram was also apprehended. Thereafter, second witness also came and lifted Rs. 15,000/ from the seat of car. The amount was in 20 currency notes of Rs.500/ and 40 currency notes of Rs. 100 denomination. He deposed that those notes were same which he had given to CBI and which were given to him for offering same to the accused. Number of currency notes were tallied by independent witness and CBI Inspector with the memo in which numbers were noted earlier in CBI office. One hand wash of accused I.P.Uniyal which turn into pink. His right side pant pocket was also washed in solution which also turned into pink. Broken seal, lock, hammer and screw driver were sealed. After apprehension of accused I.P.Uniyal, digital recorder was taken back from him.
49 Complainant(PW1) identified the recovered GC notes as Ex P1 to P62. He deposed that recovery memo Ex.PW2/A was prepared at the spot. He also deposed that left front seat cover of his car was also washed which turned into pink and that the washes were transferred to bottles and sealed. He identified the transcriptions Ex.PW2/F and Ex.PW2/G of the conversations recorded in CBI office and at the spot respectively. He identified the sentences spoken by AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 31 of 59 accused persons and by himself. He also identified pant Ex.P66 of accused I.P.Uniyal in which he kept the bribe money. He identified seat cover of his car as Ex.P67 on which money was kept by accused I.P.Uniyal. Cassette Ex.P71 containing conversation of the spot was played in the Court and after hearing its contents, complainant identified voices of both the accused, himself and of independent witnesses. He also identified hammer Ex.P69 and lock Ex.P68 which were broken by accused Sri Ram.
50 Complainant was cross examined at length but he stuck to his stand that on 9.8.05 both the accused accompanied him in his car to the spot where accused Sri Ram Sharma along with Laxmi Chand broke open the seal of his premises and thereafter accused I.P.Uniyal demanded bribe from him. He remained firm that accused I.P.Uniyal accepted bribe and put the same on front seat of car which was recovered and that his hand wash and pant wash turned into pink as well as wash of car seat cover.
51 The shadow witness Kunwar Singh(PW2) has corroborated the testimony of complainant. He deposed that in CBI office, complainant produced Rs.15,000/ in the form of 22 GC notes of Rs. 500 and 40 GC notes of Rs. 100/ denomination. Powder was AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 32 of 59 applied on GC notes and its significance was explained and thereafter complainant kept them in right side pant pocket. Instrument of recording was handed over to the complainant in which formal voices were recorded. He deposed that he was directed by Inspector Krishnan(PW15) to remain close to the complainant and see the transaction. Handing over memo Ex.PW1/B was prepared which was signed by him. He along with complainant sat in the car of complainant and reached Main Road Geeta Colony. Complainant spoke to accused Uniyal on his phone and asked where they would meet and he was asked to come to the office of one property dealer. He along with complainant reached the office of property dealer and found accused Uniyal, Sri Ram and one guard Laxmi Chand there. Accused Uniyal sat in left side front seat of car whereas accused Sri Ram sat on rear seat. Thereafter, they reached back to the spot. Accused Sri Ram got down from car and obtained one hammer. Accused Sri Ram and Laxmi Chand proceeded towards house of complainant and came back with broken lock and sealing cloth and informed that they have broken the seal. Thereafter, complainant took out money and tried to put the same in the pocket of accused Uniyal. One giving signal, accused persons were apprehended. AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 33 of 59 Right side pant pocket of accused Uniyal was dipped into a solution which turned into pink. Right hand of accused was also washed in solution which turned into pink. Both washes were transferred to bottles and sealed. CBI officers along with witness Rajender(PW14) accused I.P.Uniyal went to the car of the complainant and money was recovered from the seat of car. Seat cover wash was also taken which also turned into pink. Same was transferred to a bottle and sealed. Recording device was taken back from the complainant and data was transferred to an audio cassette. Both the accused were arrested. He identified the recovery memo Ex.PW2/A, arrest memos Ex.PW2/B and Ex.PW2/C, site plan Ex.PW2/D, specimen voice recording memo Ex.PW2/E and transcriptions Ex.PW2/F and Ex.PW2/G. He identified recovered GC notes as ExP1 to Ex.P62. He identified the bottles containing washes RHW, RSPPW and of car seat cover as Ex.P63 to Ex.P65. He identified pant of accused as Ex.P66, car seat cover as Ex.P67, lock as Ex.P68 and hammer as Ex.P69. He also identified the cassette Ex.P71 and the voices contained therein in which conversation at the spot was recorded. He also identified the cassette Ex.P72 in which specimen voice of accused I.P.Uniyal was taken.
AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 34 of 59 52 The recovery witness Rajender Kumar Sharma(PW14) has deposed on the similar lines. He deposed that he along with CBI team was standing on the road. Accused Uniyal alighted from the car of the complainant and he was apprehended by members of the team. Accused Sri Ram was also apprehended. He was asked to take search of accused Uniyal. He deposed that he searched the pant pocket of accused Uniyal and did not find the currency notes.
53 He was declared hostile and was cross examined by Ld. PP for the CBI. During cross examination by Ld. PP, he admitted that notes amounting to Rs.15,000/ produced by complainant were treated with phenolphthalein powder. Significance of its reaction with sodium chloride was explained. A digital recorder was given to the complainant to record the conversation. He admitted that Kanwar Singh was directed to remain with the complainant and watch the transaction of bribe. He admitted the preparation of handing over memo Ex.PW1/B. On the way to spot, he was informed that complainant was to proceed to the shop of Ghanshyam Property Dealer to meet accused. Both the accused persons were caught at the spot with his wrists. Handing over memo Ex.PW1/B was given to AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 35 of 59 him and Kanwar Singh and they tallied the numbers of recovered GC notes with the same. They confirmed that the numbers tallied. In his crossexamination, he admitted the case of the prosecution. 54 During the course of crossexamination, defence has failed to put any dent to his testimony.
55 The investigating officer Inspector N.V.N. Krishnan (PW15) as well as Inspector Prem Nath (PW16) who remained associated with the investigation of the case, have corroborated the testimony of complainant (PW1).
56 The transcription Ex.PW2/G of the recorded conversation in the car of the complainant (PW1) shows that both the accused as well as complainant (PW1) were present in the car. The CFSL report Ex.PW3/A of voice expert (PW3) also confirms the case of prosecution that it contains the voice of accused. It was observed by the voice expert (PW3) that specimen voice of accused I.P. Uniyal matched with his questioned voice contained in cassette Ex.P71 (recorded conversation of the spot). The report Ex.PW11/A of hand wash expert Sh. P. Nath (PW11) also establishes the case of prosecution. In this report Ex.PW11/A, it is mentioned that hand wash RHW of accused I.P. Uniyal, right side pant pocket wash AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 36 of 59 RSPPW of accused I.P. Uniyal and car seat cover wash of complainant gave positive tests for the presence of phenolphthalein powder and sodium carbonate.
57 The voice expert report Ex.PW3/A proves that both accused I.P. Uniyal and Sri Ram Sharma were present in the car of complainant at the time of demand and acceptance of bribe. The report Ex.PW11/A of wash expert (PW11) also proves the case of prosecution that accused I.P. Uniyal accepted the bribe money from his right hand and kept the same in his right side pant pocket. The testimony of complainant (PW1) that accused I.P. Uniyal kept the bribe amount on the car of seat has also been corroborated from wash report Ex.PW11/A. The wash report confirms the case of prosecution that tainted bribe money was kept on the seat of car. 58 From the testimony of complainant (PW1), it has been duly established that both the accused I.P. Uniyal and Sri Ram Sharma called the complainant (PW1) at the office of Ghanshyam Properties and then sat in the car of complainant (PW1) and thereafter reached to the spot i.e. premises of the complainant. At the spot, accused directed his coaccused Sri Ram Sharma and one Laxmi Chand to break the seal of the premises of complainant (PW1). In the AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 37 of 59 presence of independent witness (PW2), accused I.P. Uniyal demanded and accepted bribe of Rs.15,000/. From the testimony of complainant, independent witnesses (PW2 and PW14), Investigating Officer Inspector N.V.N. Krishnan (PW15) and Inspector Prem Nath (PW16), the presence of both the accused at the spot has been duly established.
59 The testimony of complainant (PW1) has duly been corroborated by independent witnesses Kunwar Singh (PW2) and Rajender Kumar Sharma (PW14). They deposed almost on the similar lines of complainant (PW1). Shadow witness (PW2) has deposed that he remained in the car of complainant (PW1) in which both the accused sat and transaction of bribe had taken place. 60 It has been argued by the Ld. Defence counsel that shadow witness has not supported the case of prosecution as he has deposed that money was thrust in the pocket of accused I.P. Uniyal by the complainant and then it was kept by complainant on the seat of car. It is further argued that there is no corroboration to the testimony of complainant and in absence thereof his testimony can not be relied upon. In support of his argument, he has relied upon judgments in case of State of Kerala and another vs. C.P.Rao ( Criminal appeal AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 38 of 59 No. 1098 of 2006) decided by Hon'ble Supreme Court on 16.05.2011), Jagat Singh vs. Union of India ( 2007) RDRJ 2985, Banarsi Dass vs. State of Haryana ( Criminal Appeal No. 630/2003 decided by Hon'ble Supreme Court on 5.4.2010) and Roshan Lal Saini vs. CBI 2011(2) CC cases 869. In these authorities, it was observed that when there is no corroboration to the testimony of complainant regarding demand of bribe, evidence of complainant can not be relied upon and that testimony of complainant has to be corroborated by independent and trustworthy witnesses. It was also held that demand and acceptance of money for doing a favour in discharge of official duty is sine qua non for conviction of accused. In Roshan Lal's case, it was observed that prosecution case rested only on the solitary statement of Trap Laying Officer whose version remains uncorroborated.
61 I am not agreeable with the arguments of ld. Defence counsel inasmuch as if for the sake of arguments it is presumed that bribe money was not accepted by accused I.P. Uniyal and same was kept on the seat of car, then how phenolphthalein powder came on his right hand. The report of hand wash expert Ex.PW11/A shows that there is presence of phenolphthalein powder and sodium carbonate in AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 39 of 59 his right hand wash RHW. When there is ocular testimony of complainant that accused I.P. Uniyal accepted the bribe money from his right hand which has duly been corroborated by scientific evidence in the form of expert report Ex.PW11/A, I am of the considered opinion that the prosecution has duly proved that accused I.P. Uniyal accepted the bribe money from his hand and it was not thrust in his pocket as alleged by him. Contention regarding non corroboration to the testimony of complainant is unfounded one as his testimony has duly been corroborated by scientific evidence in the form of reports Ex PW3/A and Ex PW11/A. His testimony has also been corroborated by independent witnesses as well as Investigating Officer(PW15) and Inspector Prem Nath(PW16). His testimony has also been corroborated from recorded conversation in cassette Ex.P70 and Ex.P71 and transcriptions thereof Ex.PW2/F and Ex.PW2/G. From the testimony of complainant which has duly been corroborated by other evidence, prosecution has duly established that accused persons demanded bribe from the complainant on 8.8.2005 and then at the spot accused I.P.Uniyal demanded and accepted bribe money of Rs. 15,000/ from the complainant. Therefore, accused can not get any help from the aforesaid judgments.
AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 40 of 59 62 It has been argued by Ld. Defence counsel that specimen voice of accused I.P.Uniyal was obtained under compulsion and without any order from the Court. It is further argued that report of Voice Expert is insignificant as he had not produced the worksheet to find out the ways and means and instruments used in examination. In support of his argument, he has relied upon a case reported as Rakesh Bisht etc. vs. CBI 2007 Cri.L.J.1530 in which it was observed that accused can not be compelled to give voice sample during investigation. He has further relied upon judgment in case of Vishal Chand Jain @ V.C.Jain vs. CBI 2011(1) JCC 570 in which it was observed that report of Voice Expert is not of much help to the prosecution as the prosecution is bound to prove that specimen voice was actually taken and the cassette was not manipulated. 63 So far as contention regarding obtaining specimen voice of accused under compulsion and without order of Court is concerned, perusal of record shows that specimen voice of accused I.P.Uniyal was taken in the presence of independent witnesses(PW2 and 14) vide memo Ex.PW2/E. The argument that it was not out of free will and was obtained under compulsion is not borne out of record inasmuch as both the independent witnesses have deposed that AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 41 of 59 specimen voice of accused I.P.Uniyal was taken in their presence. None of these witnesses has deposed that accused I.P.Uniyal has raised any objection with respect of taking his specimen voice. It has also come in evidence that cassette Ex.P72 containing specimen voice of accused was produced in the Court in sealed condition. Report of Voice Expert Ex.PW3/A also shows that CFSL received the cassette of specimen voice in sealed condition. Accused I.P.Uniyal has not made any complaint to any authority to the effect that his specimen voice was taken under compulsion. Therefore, prosecution has duly established that specimen voice of accused I.P.Uniyal was obtained voluntarily and there was no tampering in the cassette. So, judgment in Vishal Chand Jain's case ( supra) is not attracted to the facts of the present case.
64 Next contention of Ld. Defence counsel is that specimen voice of accused can not be taken without order of the Court and relied upon judgment in case of Rakesh Bisht( supra). The defence can not get any help from this judgment as it was observed in this very authority that the Court can not entertain any application for taking sample voice during the course of investigation. Court can only be approached when case is pending trial before the Court for AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 42 of 59 obtaining sample voice of an accused. In the present case, specimen voice of accused I.P.Uniyal was obtained during the course of investigation and not during trial. Therefore, there was no necessity to approach the Court for obtaining specimen voice of accused as held by Hon'ble Supreme Court in Rakesh Bisht's case( supra). 65 The identity of accused persons, their presence at the spot and acceptance of bribe money by accused I.P. Uniyal has duly been established from the testimony of complainant (PW1) which has been corroborated by shadow witness (PW2) and another independent witness (PW14). Though, recovery witness (PW14) was declared hostile on certain points but during the course of crossexamination, he admitted the case of prosecution on almost every aspect of the matter. Hostility on trivial aspects can not efface his testimony in toto. In Govindappa and Others Vs. State of Karnataka (Reported in (2010) 6 SCC 533), it has been held that evidence of a person does not become effaced or washed of from the record merely because he has turned hostile and his deposition must be examined more cautiously to find out as to what extent he has supported the case of prosecution. It was also held that evidence of such a witness cannot be rejected in toto.
AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 43 of 59 66 The recovery of bribe money has also been established from the testimony of complainant (PW1). He deposed that after accepting the bribe money, accused I.P. Uniyal kept the same in his right side pant pocket and then put the same on the seat of car. Though, it is correct that shadow witness (PW2) has differed on this aspect, but the testimony of complainant has duly been corroborated by the report of wash expert Sh. P. Nath (PW11). In his report Ex.PW11/A, he has mentioned that the pant pocket wash of accused I.P. Uniyal and car seat cover wash gave positive result for the presence of phenolphthalein and sodium carbonate. Therefore, expert opinion establishes the acceptance and recovery of bribe money by accused I.P. Uniyal.
67 It has been argued by ld. Defence counsels that accused persons have falsely been implicated in the present case as complainant was having grudge against them. It is argued that the premises of complainant was booked by the accused persons being officials of DDA as complainant raised unauthorized construction over it. Even, DDA has carried out some demolition on his property. This was the reason with the complainant to have grudge against the accused persons and with a view to take revenge from them, AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 44 of 59 complainant falsely implicated them in the present case. 68 Perusal of file Ex.PW6/A shows that accused Sri Ram Sharma inspected the premises of complainant and found unauthorized constructions going on over it. He apprised his senior officers and made a complaint to SHO, P.S. Geeta Colony as well as to the Deputy Director of DDA. File Ex.PW6/B shows that demolition on the premises of complainant was done by the DDA in which accused I.P. Uniyal was one of the members of the team. Sealing of the premises of the complainant was also done. 69 Perusal of file Ex.PW6/B also shows that complainant moved applications for desealing his premises. The said applications were also marked to accused I.P. Uniyal. Therefore, it can safely be inferred that matter of desealing of premises of the complainant was subjudice before accused I.P. Uniyal and he was having in a capacity to demand bribe for doing the job. 70 From the totality of evidence produced on record in the form of testimony of complainant (PW1) which has duly been corroborated by the independent witnesses and the Investigating Officer, I am of the considered opinion that the prosecution has duly established that on 9.8.2005, accused I.P. Uniyal along with accused AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 45 of 59 Sri Ram Sharma accompanied the complainant in his car at the spot i.e. premises of the complainant. It has also been established that at the spot, accused Sri Ram Sharma along with guard Laxmi Chand on the directions of accused I.P. Uniyal broke open the lock and seal of the premises of complainant (PW1). It has also been established that after desealing the premises of complainant, accused I.P. Uniyal demanded and accepted/obtained the bribe money of Rs.15,000/ from the complainant (PW1). The said tainted currency notes Ex.P1 to Ex.P62 were kept in the pant pocket by accused I.P. Uniyal and then kept the same on the seat of the car which were recovered from the seat of car of complainant. The voice expert report Ex.PW3/A as well as wash expert report Ex.PW11/A also corroborates the case of prosecution to the effect that both the accused were present at the spot, accused I.P. Uniyal demanded and accepted the bribe money from the complainant.
71 It has further been argued by ld. Defence counsels that the witnesses have made different statements in the court and as such the testimony of such witnesses cannot be said to be believable. It is further argued that there are discrepancies in the statements of witnesses. They have relied upon judgments in case Subhash Chand AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 46 of 59 Chauhan vs. CBI ( Criminal appeal No. 467/2002 decided by Hon'ble Delhi High Court on 4.1.2005) and Pyare Lal vs. State II ( 2008) DLT ( Crl.) 481.
72 So far the contention regarding making of different statements by witnesses and discrepancies is concerned, it is correct that witnesses made different statements in examination in chief and in crossexamination, but the fact remains that it has been established from the testimony of witnesses that initially both the accused demanded the bribe from the complainant. On 8.8.2005, accused Sri Ram Sharma demanded bribe of Rs.20,000/ from the complainant for desealing his premises which was reduced by accused I.P. Uniyal to Rs.15,000/. It has also been established that at the spot, accused I.P. Uniyal demanded bribe from the complainant and accepted/obtained the bribe amount from him. The recovery of bribe money from the seat of car of complainant has also been established on record which was kept on it by accused I.P. Uniyal after removing the same from his pant pocket. Therefore, making of different statements at different stages is of no meaning, in view of the fact that the demand and acceptance of bribe money by accused has been proved by the prosecution. The discrepancies pointed out by Ld. Defence counsel AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 47 of 59 are not such which go to the root of the matter and are trivial in nature. It is not the case of mere recovery of bribe money from accused, rather it is the case where the prosecution has proved all the ingredients of trap cases i.e. demand, acceptance and recovery of bribe. Therefore, authorities relied upon by Ld. Defence counsel are not applicable to the facts of present case.
73 It is further argued by the ld. Defence Counsels that the prosecution has not proved the allegations against the accused beyond reasonable doubt. It is argued that it is a settled law that if two views are possible, one favouring the accused and one against the accused, then benefit should be given to the accused. It is further argued by the Ld. counsel that the accused can establish its case by preponderance of probabilities and the prosecution is bound to prove its case beyond preponderance of probabilities. 74 I am not convinced with the arguments of Ld. Defence counsels inasmuch as the prosecution has duly established from the evidence of complainant (PW1) which has duly been corroborated by independent witnesses and Investigating Officer that both the accused demanded bribe from the complainant previous to his making complaint to the CBI. It has also been proved that AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 48 of 59 accused I.P. Uniyal demanded and accepted/obtained bribe from the complainant (PW1) at the spot. Prosecution has also duly established the recovery of bribe money. Thus, in my considered opinion, the prosecution has duly established all the ingredients of trap cases beyond reasonable doubt against accused persons. 75 Accused I.P.Uniyal has examined Sh. Syed Faizal Huda as DW1 who deposed that he examined disputed signatures of complainant on applications Ex.PW9/DA and Ex.PW9/DB to compare it with his signatures on handing over memo Ex.PW1/B and recovery memo Ex.PW2/A. He submitted his report Ex DW1/A and opined that disputed signatures of complainant were written by him and matched with his admitted signatures.
76 It is argued by Ld. Defence counsel that from the report of DW1, it has been established that complainant made two applications before DDA for desealing his premises but during his cross examination having made any such application. It is further argued that complainant has spoken a false fact and misled the Court, therefore, his testimony is unreliable.
77 During cross examination, DW1 has admitted that he gave his opinion on being engaged by accused I.P.Uniyal. It may be AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 49 of 59 true that complainant moved application for desealing his property, but it can not give any occasion to accused persons to demand and accept bribe from him. It has come in evidence that on 8.8.2005 both the accused demanded bribe from the complainant for desealing his premises and accused I.P.Uniyal agreed to accept bribe of Rs. 15,000/ at the premises of complainant on 9.8.2005. On the day of trap, accused I.P.Uniyal demanded and accepted bribe from the complainant in the presence of accused Sri Ram Sharma. Therefore, making of application for desealing by complainant, if found to be correct, can not make any difference. His testimony can not be rejected in toto solely on this ground.
78 Since, accused persons have failed to prove the plea taken by them in their defence, an adverse inference is drawn against them in view of provision of Section 20 of the P.C. Act. 79 In view of the reliable and trustworthy testimony of complainant (PW1), independent witnesses (PW2 and PW14), Inspector Prem Nath (PW16) and the Investigating Officer Inspector N.V.N. Krishnan (PW15), I am of the considered opinion that the prosecution has established beyond reasonable doubt that at the spot accused I.P. Uniyal demanded and accepted/obtained bribe of Rs. AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 50 of 59 15,000/ from the complainant (PW1) on 9.8.2005 in the car of complainant (PW1). The prosecution has also successfully established the recovery of bribe money from the seat of car of the complainant which was accepted by accused I.P. Uniyal from his right hand, kept the same in his right side pant pocket and then put the same on the car seat.
Conclusion 80 The prosecution has successfully established that the sanctions granted by the sanctioning authorities Dinesh Rai (PW18) and Sh. Sunil Sharma (PW19) were proper. It has duly been established that the same have been accorded after due application of mind. The accused persons have failed to show anything on record to show that the sanctions granted were in mechanical manner or without application of mind.
81 It has duly been established that both the accused hatched a criminally conspiracy to demand and accept the bribe from the complainant (PW1) and in furtherance of the same, both of them called the complainant (PW1) at the spot where accused I.P. Uniyal demanded and accepted bribe money in the car of complainant (PW1) when the trap was laid down.
AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 51 of 59 82 CBI has also successfully proved its case beyond reasonable doubt against accused persons, namely, I.P. Uniyal and Sri Ram Sharma, being public servants while posted as Junior Engineer and Chainman/Supervisor respectively in Delhi Development Authority, committed the criminal misconduct by demanding the bribe of Rs.20,000/ from the complainant (PW1) which was reduced to Rs.15,000/ by accused I.P. Uniyal at the previous stage i.e. before making complaint by the complainant (PW1) to the CBI and before laying the trap as well. The contents of the complaint and the testimony of complainant have duly been corroborated by other evidence on record.
83 It has also been established that on 9.8.2005, accused I.P. Uniyal demanded and accepted/obtained illegal gratification in the form of bribe of Rs.15,000/ from the complainant (PW1) other than his legal remuneration in the car of complainant which was recovered from seat of the car which was kept by accused I.P. Uniyal after taking it out from his pant pocket. From the evidence of the complainant (PW1) and the independent witnesses which has duly been corroborated by Investigating Officer and the opinions of wash expert and voice expert, the prosecution has duly established that at AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 52 of 59 the spot, accused I.P. Uniyal demanded the bribe from the complainant. It has duly been established that accused I.P. Uniyal accepted bribe which was recovered from the seat of the car. The conversation recorded in CBI office as well as on the spot also established the demand and acceptance of bribe money by the accused persons.
84 It is important to note that corruption by public servants has become a gigantic problem. It has spread everywhere and no facet of public activity has been left unaffected by the sting of corruption. It has deep and pervasive impact on the functioning of the entire country and large scale corruption retards the national building activities and everyone has to suffer on that count. Corruption is corroding our country like cancerous lymph nodes, the vital veins of the body politics, social fabric of efficiency in the public service and demoralising the honest officers. The efficiency in public service would improve only when the public servant devotes his sincere attention and does his duty diligently, truthfully, honestly and devotes himself assiduously to the performance of his duty to the post.
85 Consequently, both the accused, namely, I.P. Uniyal AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 53 of 59 and Sri Ram Sharma are hereby held guilty for the commission of offence punishable under Section 120B IPC read with Section 7 and 13(1)(d) of P.C. Act. Both the accused are also held guilty for commission of offence punishable under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. Accused I.P. Uniyal is also held guilty of commission of offence punishable under Section 7 of P.C. Act. Both the accused are accordingly convicted for the said offences.
Announced in the open Court ( P.S. TEJI )
Dated: 14.10.2011 District Judge (East)
Special Judge (CBI)
Karkardooma Courts : Delhi
AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 54 of 59
IN THE COURT OF SHRI P.S. TEJI : DISTRICT JUDGE &
ADDL. SESSIONS JUDGE, I/C (EAST) cum SPECIAL JUDGE (CBI), KARKARDOOMA COURTS, DELHI.
AC No.08/2006 Unique Case ID No.02402R0345512006 FIR No.RC DAI2005A0045 Under Section 7 and 13(2) r/w Sec.13(1)(d) of PC Act, 1988.
CBI Versus (1) Indira Prasad Uniyal
S/o Late Sh BhagwatiPrasadUniyal
R/o C7/4, Safdarjung Development
Area, Staff Quarters, New Delhi.
(2) Sri Ram Sharma
S/o Late Khillu Ram Sharma
R/o H.No. 20, Gali No. 26,
Molarbandh Extension, Badarpur,
Delhi.
ORDER ON SENTENCE
I have heard Sh. L.S. Chaudhary, Ld. Counsel for
convicts as well as learned PP for the CBI on the quantum of sentence.
AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 55 of 59 2 On behalf of convict Indira Prasad Uniyal, it has been submitted that he is having spotless carrier. There is no previous involvement of convict in any other case. Even there is no complaint in the department against him. He has three children, wife and old and ailing parents to maintain. He is about 55 years old. He has been suspended during the trial and if custodial sentence is awarded to him, it is likely to play havoc in his life and entire family would come on the road. On behalf of convict Sri Ram Sharma, it is submitted that he is also 55 years old. He is having three children and entire family is dependent upon him. During the course of trial, he remained suspended from service and if sentenced to imprisonment, he would suffer a lot. It is further argued that keeping in view the familial circumstances of convicts, a lenient view may be taken while awarding sentence to the convicts.
3 The learned PP for the CBI has submitted that the convicts being public servants, misused their official position and demanded and accepted the bribe from the complainant. It is further argued that the acts committed by the convicts have potential to infect the entire society. He has further submitted that the convicts may be AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 56 of 59 awarded the maximum punishment prescribed under the law. 4 Vide judgment dated 14.10.2011, both the convicts Indira Prasad Uniyal and Sri Ram Sharma have been convicted for commission of offences punishable under Section 120B IPC read with 7 and 13(1)(d) of P.C. Act. Both the convicts have also been convicted for commission of offence punishable under Section 13(2) read with 13(1)(d) of P.C. Act. Convict Indira Prasad Uniyal has also been convicted for offence punishable under Section 7 of P.C. Act. 5 It is important to note that corruption by public servants has become a gigantic problem. It has spread everywhere and no facet of public activity has been left unaffected by the sting of corruption. It has deep and pervasive impact on the functioning of the entire country and large scale corruption retards the national building activities and everyone has to suffer on that count. Corruption is corroding our country like cancerous lymph nodes, the vital veins of the body politics, social fabric of efficiency in the public service and demoralising the honest officers. The efficiency in public service would improve only when the public servant devotes his sincere attention and does his duty diligently, truthfully, honestly AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 57 of 59 and devotes himself assiduously to the performance of his duty to the post.
6 Considering the circumstances under which the offence was committed, the both the convicts Indira Prasad Uniyal and Sri Ram Sharma are awarded sentence of four years rigorous imprisonment with fine of Rs.10,000/ each for the offence punishable under Section 120B IPC read with Section 7 and 13(1)(d) of the P.C. Act. In default of payment of fine, convicts shall further undergo simple imprisonment for three months. Both the convicts are further awarded sentence of four years rigorous imprisonment with fine of Rs.10,000/ each for the offence punishable under Section 13(2) read with Section 13(1)(d) of P.C. Act. In default of payment of fine, the convicts shall further undergo simple imprisonment for three months. Convict Indira Prasad Uniyal is also awarded sentence of five years rigorous imprisonment with fine of Rs.10,000/ for the offence punishable under Section 7 of the P.C. Act. In default of payment of fine, convict shall further undergo simple imprisonment for six months.
AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 58 of 59 7 All the sentences awarded to the convicts shall run concurrently. The convicts shall be entitled for the benefit of the provisions of Section 428 Cr.PC. Copy of the judgment and order on sentence be given free of cost to the convicts.
File be consigned to record room.
Announced in the open Court ( P.S. TEJI )
Dated: 17.10.2011 District Judge & ASJ, I/C (East)
Special Judge (CBI)
Karkardooma Courts : Delhi
AC No.08/2006 CBI Vs. Indira Prasad Uniyal etc. Page 59 of 59