Delhi District Court
Cbi vs . 1) Sukhbir Singh on 20 April, 2012
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IN THE COURT OF SH. PRADEEP CHADDAH:
SPECIAL JUDGE: CBI01, CENTRAL DISTRICT. DELHI
CC No. 256/07 RC : DAI2007A0006
PS :CBI/ACB/ND
U/s : 7 & 13 (2) r/w 13(1) (d)
of P.C. Act, 1988
CBI Vs. 1) Sukhbir Singh
S/o. Sh. Kapoor Singh
R/o. H.No.80, Rajender Park Extn.
Nangloi, New Delhi41.
(Then posted as Head Constable in Delhi Police)
2) Anoop Singh
S/o. Sh. Hoshiar Singh
R/o. H. No. 166, ABlock, Gali No. 15,
Gopal Nagar, Maharishi Dayanand Marg,
Najafgarh, New Delhi.
(Then posted as Head Constable in Delhi Police)
Date of Institution : 31.05.2007
Judgment Reserved : 22.03.2012
Judgment Delivered : 20.04.2012
CC No. 256/07 CBI Vs. Sukhbir etc pg 1 of 70
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J U D G M E N T
1. The present charge sheet was filed by CBI against Sukhbir Singh a head constable posted in police station DB Gupta Road and Anoop Singh who again was posted as head constable in PS DB Gupta Road. The RC was registered on 24.1.07 after Sarfaraz Ahmad made a written complaint alleging therein that Sukhbir Singh had demanded bribe of Rs.20,000/ for not implicating him a theft case. If we go through the complaint which had been lodged, we find mentioned therein that Sarfaraz had claimed that he was doing business of Kabadi. His friend Asif stayed in his neighbourhood. On the morning of 22.1.07 the motorcycle of Asif got stolen. Both of them then approached PS DB Gupta road where they met accused Sukhbir Singh. Upon being told about the stolen motorcycle, Sukhbir Singh informed them that in the previous night Additional SHO had caught the thief along with motorcycle and both of them were in the police station. Thereafter, complainant Sarfaraz claimed that he was accused of purchasing stolen motorcycles. Accused Sukhbir Singh then took his phone number and asked him to leave. Same day at about 2.30 p.m. Sukhbir Singh from his mobile No. 9873007604 rang up complainant Sarfaraz on his mobile No. 9910283300 and called him to the police CC No. 256/07 CBI Vs. Sukhbir etc pg 2 of 70 3 station. When he (complainant Sarfaraz) reached police station, he (accused Sukhbir) demanded Rs.20,000/ as bribe on the pretext that he had got his name removed from the theft case. On 24.1.07 accused Sukhbir again rang him up and told him to pay the bribe amount till evening. Sukhbir also came to his house and threatened his brother Asif that he would lock him (Sarfaraz) up.
2. After receipt of complaint RC DAI2007A006 was registered on 24.1.07 against Sukhbir Singh Head Constable, PS DB Gupta Road, Karol Bagh and investigation was entrusted to Inspector D.K. Thakur.
3. Complainant was introduced to independent witnesses namely Virender Kumar and Satya Narayan. Both of them satisfied themselves about genuineness of the complaint by questioning the complainant. A digital voice recorder was arranged and was delivered to complainant with directions to record the conversation between him and accused Sukhbir Singh.
4. On 25.1.07 complainant informed the team that he had called accused Sukhbir Singh on his mobile phone. He told the complainant that CC No. 256/07 CBI Vs. Sukhbir etc pg 3 of 70 4 he was proceeding to Muzaffarnagar and would return by 2.00 p.m. He directed the complainant to be ready with bribe money of Rs.20,000/ by 2.00 p.m. The conversation had been recorded in digital voice recorder and was heard by the team members. Complainant produced Rs.20,000/ in denomination of Rs.500/ and Rs.1000/. The numbers were noted down in pre trap cum handing over memo. The notes were treated with phenolphthalein powder and practical demonstration was given with help of independent witness Virender Kumar. After completing the pre trap formalities, trap team left for the spot. Satya Narayan had been directed to act as shadow witness.
5. They reached near residence of complainant and parked the vehicles at a safe distance. At about 6 p.m. complainant informed the TLO that accused Sukhbir Singh had telephoned him and informed him that he was on his way back to Delhi. At about 6.10 pm. there again was conversation between complainant and Sukhbir Singh wherein accused asked complainant to come to gate of PS Desh Bandhu Gupta Road, Karol Bagh. The team then proceeded to PS DB Gupta Road. After about 10 minutes complainant received a call on his mobile from the second accused Anoop Singh who called him to the gate of the police station.
CC No. 256/07 CBI Vs. Sukhbir etc pg 4 of 70
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Complainant proceeded towards the gate and team members followed discretely. After about 56 minutes, complainant returned along with shadow witness and informed the team that both the accused had directed him to come inside Ajmal Khan Park which was situated near PS DB Gupta Road. Inside Ajmal Khan Park there was a marriage pandal. Complainant and shadow witness went inside while remaining team members waited outside. After few minutes two persons came to the complainant and started talking to him. Thereafter predetermined signal was received from the mobile phone of complainant on the mobile phone of Inspector Thakur wherein complainant informed that both the accused were proceeding towards police station through opposite side gate of the park. The team members rushed towards the accused. Complainant pointed out to both the accused Sukhbir Singh and Anoop Singh but by the time CBI team could catch them, both the accused had gone out of the park. In the meanwhile complainant received a call on his mobile from accused Sukhbir Singh who directed him to meet near gate of Tibia college. After reaching the spot complainant rang up Sukhbir and informed him that he had reached gate of Tibia College. Again complainant received a call from mobile of Sukhbir Singh who informed him his position near the gate. At the crossing near DB Gupta Road police station, complainant pointed out CC No. 256/07 CBI Vs. Sukhbir etc pg 5 of 70 6 towards a person wearing leather jacket and informed that he was Sukhbir Singh who had demanded and accepted bribe of Rs.20,000/ from him. The team members then apprehended Sukhbir Singh who became perplexed and admitted having accepted bribe. He informed them that the bribe money had been taken away by his companion Rakesh Kumar a police informer. Sukhbir Singh was searched but bribe money was not found. Hand washes of Sukhbir Singh were taken and the solution turned light pink. Both the bottles and cloth wrappers were signed by the independent witnesses. The digital voice recorder which was handed over to the complainant was taken back and recorded conversation was heard. Complainant was throughout submitting that accused Anoop Singh was accompanying Sukhbir. While the team was waiting for informer Rakesh Kumar suddenly accused Sukhbir Singh escaped from the custody at about 9.40 p.m. Team members gave him a chase and apprehended him again inside Ajmal Khan Park near Gurudwara. Large crowd had also gathered. The team came to PS DB Gupta Road and ACP was requested to procure presence of Anoop Singh who was incharge of Malkhana. He remained absent from his duty and surrendered before court on 19.02.2007.
6. The sealed bottles containing hand washes of Sukhbir and the CC No. 256/07 CBI Vs. Sukhbir etc pg 6 of 70 7 audio cassettes were sent to CFSL. The report corroborated the demand and acceptance by the two accused. Both of them were dismissed from service. It was prayed that they be summoned and tried.
7. My learned predecessor after hearing arguments, framed the following charge against the accused:
"That on or before 25.1.07 at PS Desh Bandhu Gupta Road, New Delhi you both Sukhbir Singh posted as Head Constable at PS DBG Road and you accused HC Anoop Singh posted as Malkhana Incharge at PS DBG Road hatched criminal conspiracy to extract bribe of Rs.20,000/ from complainant Sarfaraz Ahmad after threatening him to implicate in a false case of receiving stolen property and thereby committed offence punishable u/s. 120B IPC and within my cognizance.
That on 22.1.2007 at about 2.00 or 2.30 p.m. you accused Sukhbir Singh demanded a bribe of Rs. 20,000/ from the complainant Sarfaraz Ahmand as a motive or reward for not implicating him in a theft case for receiving stolen property and directed complainant to bring the bribe amount within two days CC No. 256/07 CBI Vs. Sukhbir etc pg 7 of 70 8 and on 25.1.2007 at Ajmal Khan Park Karol Bagh you both Sukhbir Singh and Anoop Singh demanded bribe of Rs.20,000/ from the complainant as illegal gratification other than legal remuneration and obtained the same from the complainant in pursuance of the said criminal conspiracy hatched upon by both of you in discharge of your duty as public servants and thereby committed an offence punishable u/s. 7 of Prevention of Corruption Act, 1988 r/w Sec. 120B IPC and within my cognizance.
Secondly, on 25.1.07 at about 6.10 p.m. at Ajmal Khan Park Karol Bagh, you both in pursuance of criminal conspiracy being public servants by abusing your position as public servants or by corrupt or illegal means demanded and obtained Rs.20,000/ from complainant Sarfaraz Ahmad as illegal gratification other than legal remuneration, to gain pecuniary advantage for yourselves and you thereby committed criminal misconduct U/s. 13(1) (d) Prevention of Corruption Act 1988 r/w. U/s. 13 (2) of Prevention of CC No. 256/07 CBI Vs. Sukhbir etc pg 8 of 70 9 Corruption Act within my cognizance.
And I thereby direct that both of you be tried by this Court for having committed the above said offences."
8. Both the accused pleaded not guilty and claimed trial. Prosecution in support of its case examined seventeen witnesses while accused did not examine any witness in their defence.
9. PW1 was Deepak Singh, Manager Oriental Bank of Commerce. He deposed that during January 2007 on directions of his officer, he visited CBI office. In his presence specimen voice of Sukhbir Singh was recorded. The specimen voice recording memo was Ex. PW1/A which contained his signatures. The cassette in which recording was done was Ex. P1, while its wrapper was Ex. P2.
10. The second witness to be examined was R.S. Yadav from MTNL. He deposed that vide letter Ex. PW2/A, he had forwarded telephone call details pertaining to telephone no. 9968221753 and 9868957335 for the period 22.01.2007 to 19.02.2007. While the first phone was in the name of Ram Nath, Bahadurgarh, Jhajjar, the second phone was in the name of CC No. 256/07 CBI Vs. Sukhbir etc pg 9 of 70 10 Anoop Singh, Gali No. 15, H.No. 165, New Gopal Nagar, Nazafgarh. The call details were Ex. PW2/B and Ex. PW2/C.
11. The third witness was Harbhajan Singh Bamrah from Punjab National Bank. He deposed that on directions of his office, he attended CBI office on 20.02.07. Specimen voice of Anoop Singh was recorded in his presence. The specimen voice recording memo was Ex. PW3/A, the cassette in which recording was done was Ex. P3, while wrapper was Ex. P4 and the seal produced by him was Ex. P5. Upon being cross examined, he denied the suggestion that Anoop Singh had not given his voice sample in his presence.
12. PW4 was Virender Kumar from ONGC. He testified that on 24.01.07, he was called to CBI office. One Satya Narain from DTC was also present over there and also the complainant. Complainant had received telephone call on his mobile phone from Anoop Kumar. Complainant was given an instrument and directed to record conversation and come back to CBI office on 25.01.07. The recording was to take place in the evening of 24.01.07.
CC No. 256/07 CBI Vs. Sukhbir etc pg 10 of 70
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13. The witness deposed further that on 25.01.07 he reached CBI office. Satya Narain had also been called. Complainant reached there alongwith the recording done by him. The cassette was played and the conversation revealed that complainant was asked to reach with bribe money at 2.00 pm on 25.01.07. Complainant produced Rs. 20,000/. Their numbers were noted down and powder was applied to those notes. He (PW Virender Kumar) touched those notes and his fingers were dipped in water. The colour changed to red. The GC notes were returned to the complainant and kept in upper front pocket of his shirt and complainant was asked to hand them over on specific demand of the accused. He was also to give signal after the transaction. Satya Narain was directed to hear the conversation and give pre assigned signal to the CBI team.
14. He claimed further that they left CBI office at about 1.30 pm and reached at complainant's shop. Complainant sat in his shop, while Satya Narain sat at some distance in the shop. Other CBI team members were present at some distance. They waited there till 6.00 pm, but accused did not come. Complainant then had received a telephone call that accused would be reaching within 1015 mins. Shortly thereafter, CBI officer present in the shop told them to reach near gate of police post as accused Sukhbir CC No. 256/07 CBI Vs. Sukhbir etc pg 11 of 70 12 had called the complainant over there. Complainant then reached the gate of police post and Satya Narain followed him at some distance. Thereafter he saw two persons taking complainant in a street towards park. Witness claimed that he received a telephone call either from CBI or complainant telling them to reach a pandal in the park where marriage was taking place. In the park they were told that CBI would give signal by flashing mobile as it was dark over there. Subsequently, a mobile call was received from CBI to the effect that they had apprehended Sukhbir Singh and telling them to reach bus stand near police post. On reaching there, they saw CBI team members having caught hold of Sukhbir Singh. He (PW Virender) searched the accused but nothing was recovered. Sukhbir Singh told him (PW Virender) that money was accepted by his associate Rajender. Thereafter hands of Sukhbir Singh was washed. The solution turned red. It was transferred in bottles, wrapped and sealed. Accused Sukhbir was directed to make telephone call to his associate whose name he revealed as Anoop. Sukhbir then pretended that he was unwell. He was allowed to sit. Immediately thereafter, Sukhbir Singh ran away from the spot. He was chased and apprehended. He was then taken to police post. At about 4.30 am, he was taken to CBI office. Pre trapcumhanding over memo was Ex. PW4/A, recovery memo which was prepared in the police post was Ex.
CC No. 256/07 CBI Vs. Sukhbir etc pg 12 of 70
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PW4/B, arrestcumpersonal search memo was Ex. PW4/C. Witness claimed that he was again summoned to CBI office either on 27.01.07 or 28.01.07. The cassette was played. The voices were not clearly audible. Transcriptioncumidentification memo was Ex. PW4/D. The transcriptions of the conversation were Ex. PW4/E , PW4/F & PW4/G. Sealed bottle was Ex. P6, while the cloth wrappers were Ex. P7 and P8, cassette Q1 was Ex. P9 and the wrapper was Ex. P10, cassette Q2 was Ex. P11 and the wrapper was Ex. P12.
15. The witness was then cross examined by Ld. PP as he was resiling from his previous statement. He admitted that name of complainant was Sarfaraz Ahmed and he had given complaint in writing which was shown to him in the CBI office. He also admitted that digital recorder was given to the complainant to record conversation at the spot. He denied many facts suggested by Ld. PP but admitted that he alongwith CBI team had given chase to three persons. He also admitted that after apprehension, accused Sukhbir admitted that he had accepted bribe of Rs. 20,000/. He further admitted having stated to CBI that accused Sukhbir told the CBI team that he had handed over bribe money to Rakesh Kumar, police informer. He further admitted having told IO that accused Sukhbir informed the team that CC No. 256/07 CBI Vs. Sukhbir etc pg 13 of 70 14 Rakesh would reach at the bus stand near redy of an egg seller. He also admitted having told IO that washes of hands of accused Sukhbir had turned pink in colour. He also admitted that complainant had told that the person accompanying Sukhbir Singh was Anoop Singh. He also admitted that at the time of preparation of transcripts, complainant Sarfaraz had identified not only his own voice but also those of accused Sukhbir Singh and Anoop Singh and so transcripts Ex. PW4/E, PW4/F & PW4/G were prepared.
16. Thereafter the witness was cross examined by Ld. Counsel for the accused wherein he denied the suggestion that complainant was pressurized by the CBI to trap the accused persons. He claimed that the digital recorder given to the complainant on 24.01.07 was used again on 25.01.07. He had joined one more case of CBI against one Rajender Kumar. Some of the words were clear and audible in the cassette, while in some portions there was noise of horns.
17. The next witness to be examined was Asif, S/o Mohd. Yusuf. He deposed that in January/February 2007, his motorcycle was parked on footpath outside his house. It went missing. He then went to shop of his CC No. 256/07 CBI Vs. Sukhbir etc pg 14 of 70 15 friend Sarfarz Ahmed and informed him about theft of the motorcycle. Both of them then went to PS: Desh Bandu Gupta Road where they met an officer in civil dress. He informed them that last night a thief had been arrested alongwith motorcycle. In the evening, he received telephone call from the police station where his FIR was registered. The witness was thereafter cross examined by Ld. PP as he was resiling from his previous statement. He admitted that the motorcycle was registered in the name of his jija Sajid Ahmed and its number was DL 7 SR 9468. The witness denied having made any statement u/s 161 Cr.P.C. He further denied having told CBI that accused Sukhbir had met them and had said that Sarfaraz was purchasing stolen motorcycles. He admitted that his signatures appeared on copy of personal search memo, arrest memo of Rahisuddin, recovery memo of motorcycle no. DL 7 SR 9468, recovery memo of motorcycle keys in FIR no. 44/07, PS DB Gupta Road. He also admitted that his name was Asif S/o Mohd. Yusuf and his address was T366, Faiz Road, Karol Bagh. He was asked by Ld. PP to read aloud FIR No. 44/07, PS DB Gupta Road. He admitted that his name, parentage, telephone number have been correctly recorded in FIR. He also admitted that it was correctly mentioned in the FIR that motorcycle no. DL 7 SR 9468 Hero Honda was owned by his jija, but claimed that he had not got FIR no. 44/07, PS DBG Road CC No. 256/07 CBI Vs. Sukhbir etc pg 15 of 70 16 registered in the form in which it had been written and ultimately in his cross examination by Ld. PP, he admitted that some portions of statement purported to have been made by him u/s 161 Cr.P.C. were correct. He also denied having been won over by the accused.
18. Thereafter prosecution examined Mr. R.K. Singh, Nodal Officer, Bharti Airtel. He deposed that letter Ex. PW6/A was written by him to CBI regarding details pertaining to mobile number 9910283300. The call details were Ex. PW6/B, while photocopy of the application form of the subscriber was Ex. PW6/C. Upon being cross examined, he denied the suggestion that Ex PW6/B was doctored document.
19. The next witness to be examined was Mohd. Nazim S/o. Imamuddin R/o. T841, Faiz Road, Karol Bagh. He deposed that in 2007, he was doing business of scrap. Two policemen in civil dress came from PS DB Gupta Road and asked him to visit the police station for enquiry. The witness was thereafter cross examined by Ld. PP as he was resiling from his previous statement. He denied making of any statement to the CBI. He denied having told CBI that accused Anoop Singh had come to his house or that HC Sukhbir Singh had taken away his mobile number 9311611678 and had CC No. 256/07 CBI Vs. Sukhbir etc pg 16 of 70 17 given it to Anoop Singh who had then made a call to somebody.
20. Prosecution thereafter examined SI Krishan Kumar as PW8. He deposed that vide letter Ex. PW8/A he had handed over items mentioned at Serial no. 1 and 2 to inspector D.K. Thakur of CBI. Copy of FIR No. 44/07 PS DBG Road was Ex. PW8/B, while copy of recovery memo of motorcycle in FIR no. 44/07 was Ex. PW8/C. The witness deposed that he had investigated the said FIR and had obtained police remand of the accused therein. Accused had disclosed that he had stolen 34 motorcycles which he could get recovered. Vide DD Entry Ex. PW8/D, he alongwith inspector Sanjay Kumar and accused Sukhbir Singh had left for Muzaffar Nagar and after completing investigation came back to Delhi on 25.01.07 at about 6.30/7.00 pm. Vide Ex. PW8/E, he handed over attested copies of DD Entries, duty roaster, entry of absence of accused Anoop Singh on 26.01.07. He further claimed that on 24.01.07 & 25.01.07, accused Anoop Singh was performing duty of Incharge, Malkhana. He was detained for Republic Day Parade duty on 26.01.07, but he absented himself. Accused Sukhbir Singh was assisting him in FIR no. 44/07 and FIR No. 395. The witness was cross examined by Ld. PP wherein he admitted that his statement was recorded by the CBI. The same was Ex. PW8/L, but he did CC No. 256/07 CBI Vs. Sukhbir etc pg 17 of 70 18 not remember having told IO that residence of Asif and shopcum residence of Sarfaraz Ahmed fell under beat no. 9.
21. Prosecution thereafter examined its star witness Sarfaraz Ahmed. He testified that he was dealing with scrap material. In January 2007, his friend Asif came to his house and informed him about his missing motorcycle. Both of them then went to PS DBG Road. There, they met a person in civil dress who informed them that missing motorcycle alongwith thief had been caught by Addl. SHO last night. He asked them to lodge complaint. After lodging complaint, while they were coming out, the said person in civil dress stopped them and told him (PW Sarfaraz Ahmed) that he used to receive stolen bikes. The said man took his phone number and asked him to leave. In the afternoon, his father's friend met him. Upon being told about the developments, father's friend took his (PW Sarfaraz Ahmed) mobile phone and made a call to police station. He went to police station and came back after about 1 ½ hours and told him (PW Sarfaraz Ahmed) that police officials were demanding Rs. 20,000/. In the evening in his absence, 23 police officials visited his house. Next day, his father's friend made enquiries from him, upon which, he (PW Sarfaraz Ahmed) told him as to why he should pay Rs. 20,000/ to police officers.
CC No. 256/07 CBI Vs. Sukhbir etc pg 18 of 70
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22. The witness claimed that he alongwith his father's friend went to CBI office and narrated the events. Then he wrote a complaint in his handwriting and it was also signed by him. The same was Ex. PW9/A. Thereafter, they came back along with another CBI officer. At police station Karol Bagh his father's friend and CBI official got down from vehicle and told him (PW Sarfaraz Ahmad) to go back to his house. Next morning his father's friend came to his house and took his phone and made a few calls. On his return from visit to PS Karol Bagh, they again went to CBI office. Over there he handed over Rs.20,000/ to CBI officials. The money was returned to him which he kept in his upper shirt pocket. They also handed over a small recorder to his father's friend and told him to switch it on while approaching accused Sukhbir Singh. Thereafter, both of them along with 7 8 persons including two persons not belonging to CBI left from CBI office. Three of them sat in his Santro Car while rest were in a Maruti Van.
23. After coming back he was directed to sit in his shop while father's friend and other sat in his car. Later on he was informed by his father's friend that they had to go to PS Karol Bagh. After reaching there they sat CC No. 256/07 CBI Vs. Sukhbir etc pg 19 of 70 20 in front of DBG Police Station. Father's friend crossed over to the other side of the road. He came back and asked for the money. It was handed over to father's friend. Later on he (Sarfaraz Ahmad) spotted his friend borrowed his mobile phone and made a call to his father's friend by dialing his own (Sarfaraz's) mobile number. After some time father's friend came back and told him that money was paid. He pointed out the person to whom money had been paid. (On the date of testimony in court, the witness had pointed out accused Sukhbir Singh as the person to whom money had been paid). At about 45 a.m. CBI officials took him inside a room in police station. They obtained his signatures on some papers. FIR which was registered was Ex.PW9/B, pretrapcum handing over memo Ex.PW4/A, recovery memo Ex.PW4/B, transcription cum voice identification memo Ex.PW4/D, transcription Ex.PW4/E, PW4/F, PW4/G, all contained his signatures.
24. In his further examination in chief, he claimed that bribe of Rs. 20,000/ had been demanded in January 2007 but he did not remember the date. The same had been demanded from Jamil Khan who was friend of his father. Complaint Ex.PW9/A was written by him in his own handwriting. He then deposed that cassette was a device on which songs and voices CC No. 256/07 CBI Vs. Sukhbir etc pg 20 of 70 21 are recorded. Cassette Ex.P9 and P11 had been played. As they were not audible, copy was obtained. The copy was played but only introductory voice of Narender Kumar was clear, rest of CD was full of disturbances. The witness also claimed after going through his complaint Ex.PW9/A that it was mentioned therein that HC Sukhbir had called him through his mobile No. 9873007604 to his (Sarfaraz Ahmad's) mobile No. 9910283300. He further admitted having written in the complaint that when he reached the gate Sukhbir had demanded Rs.20,000/ as bribe saying that it was tough on his part to remove his name from the file relating to theft.
25. The witness was crossexamined by learned PP wherein he claimed that his statement was not recorded by CBI. He could read Hindi and English. He admitted that he had gone to PS DBG Road to lodge complaint of theft of Motorcycle. He admitted that he met Sukhbir in the police station who informed him that thief had been caught. He admitted that SP CBI had given directions for laying of trap. He admitted that two public witnesses were summoned to join the proceedings. However he denied the suggestion that he had told independent witnesses that Sukhbir had asked him to come at 5 p.m. on 24.1.07 with the money. He admitted that inspector Thakur had arranged voice recorder to record conversation CC No. 256/07 CBI Vs. Sukhbir etc pg 21 of 70 22 with the accused persons. He admitted that it was handed over to him for recording conversation with Sukhbir Singh. He admitted that after he left CBI office for PS DB Gupta Road, he received call from Sukhbir Singh and thereafter he corrected himself and claimed that he had not received any call from Sukhbir Singh.
26. He further denied the suggestion that Sukhbir Singh had come to gate of PS DBG Road and both had conversation which was simultaneously recorded in the recorder. However, he admitted that he visited CBI office again on 25.1.07. He also admitted that when he reached CBI office both independent witnesses and other team members were present over there. He admitted that he produced bribe amount of Rs. 20,000/ which was to be given to accused Sukhbir Singh. However, he denied the suggestion that any powder was applied to those notes or demonstration was given by independent witness. He admitted that Rs. 20,000/ which he handed over to CBI officers was given back to him which he kept inside his shirt pocket. He also admitted that he was explained the operations of the voice recorder. He also admitted that Satya Narayan was asked to act as shadow witness and remain close to him and see transaction of bribe. He also admitted that he was instructed by the CBI CC No. 256/07 CBI Vs. Sukhbir etc pg 22 of 70 23 team to give signal by scratching his head after transaction of bribe was over or by making a call/missed call to the mobile of D.K. Thakur. He also admitted that pre trap proceedings were reduced to writing and the memo was signed by him and independent witnesses also. He further admitted that he left CBI office in his own vehicle along with independent witness Satya Narayan and Virender Kumar. He also admitted that they reached near his residence at T404, Faiz Road, Karol Bagh and he parked his vehicle at his residence. He denied the suggestion that about 5.00 p.m. he made a call to Sukhbir who informed him that he would be reaching Delhi at about 6 pm. from Muzaffarnagar. He also admitted that he along with Satyanarayan reached gate of PS DBG Road but denied the suggestion that he made a call to Sukhbir at about 6.40 p.m. informing him that he was standing near the gate. He denied that near gate of PS DBG Road, Sukhbir Singh and Anoop came and demanded Rs.20,000/ and directed him to come inside Ajmal Khan park. He also denied that there was a marriage pandal in Ajmal Khan Park. He also denied that he received a call on his mobile from mobile of Sukhbir at about 7.43 p.m. and that after some time he made a call to Sukhbir Singh on his mobile informing him that he was in the park. He also denied the suggestion that he had received a call from Sukhbir Singh who asked him to meet near Tibia College. He further CC No. 256/07 CBI Vs. Sukhbir etc pg 23 of 70 24 denied that he had informed CBI team near DBG Road and pointed towards the person wearing leather jacket as Sukhbir Singh who had demanded the bribe from him. He also denied the suggestion that CBI team then caught Sukhbir Singh and he was personally searched. He also denied the suggestion that at the bus stand solution of sodium carbonate was prepared and Sukhbir was asked to dip his right hand and left hand fingers and on doing so solutions turned pink. He also denied the suggestion that Sukhbir Singh then escaped from the custody and he was given a chase and was apprehended near Ajmal Khan Park Gurudwara. However, he admitted as correct that after arrest accused was taken to PS DBG Road. He also admitted that all documents pertaining to post trap proceedings were prepared at PS DBG Road. He admitted that transcription of the recording was prepared and signed by him, Satyanarayan and Virender Kumar. He also admitted that he owned mobile phone No. 9910283300..
27. Upon being crossexamined he reiterated that complaint Ex.PW9/A was in his own handwriting. It was written by him in the intervening night of 25/26.1.07. He claimed that Ex.PW9/A was written on dictation of CBI officers in PS DBG Road.
CC No. 256/07 CBI Vs. Sukhbir etc pg 24 of 70
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28. The next witness to be examined by prosecution was Mr. D. K. Tanwar, Sr. Scientific Officer CFSL. He claimed that his office had received four sealed parcels Marked Q1, Q2, S1 and S2. Q1 and Q2 were normal sized audio cassette of Maxell MQ60 Make, both contained recorded conversation in which there were few clearly audible utterances details of which were given by the witness in his testimony. S1 was normal sized audio cassette of Tseries and it contained specimen voice recording of Sukhbir Singh. S2 was again a normal size audio cassette of Sony ZX60 make. It contained specimen voice recording of Anoop Singh. He further submitted that questioned voice Ex.Q1 (B) and Q2(B) and specimen voice of accused Sukhbir Singh revealed similarities. Similarly, auditory examination of questioned voice and specimen voice of accused Anoop Singh revealed similarity. The audio cassettes Q1, Q2, S1, S2 were rechecked for continuity for their original sounds and were found in order. The opinion given by him was Ex.PW10/A which contained his signatures on all the ten sheets. Upon being crossexamined by learned counsel for Anoop Singh he claimed that he had given negative reports in few cases but he would not be able to provide their particulars. Upon being crossexamined by learned counsel for accused Sukhbir Singh he denied CC No. 256/07 CBI Vs. Sukhbir etc pg 25 of 70 26 the suggestion that he knew that exhibits had been tampered with. He also stated that he had done one year certificate course in forensic science from University of Delhi and had also undergone training in Germany where he studied phonetics. He claimed that he had not prepared transcription of the talks however same were provided by the forwarding authority.
29. Thereafter, Israr Babu entered the witness box as PW11. He identified signatures and writing of Jyotish Mohrana as he had worked with him in Vodafone Essar Mobile Services Ltd. He claimed that letter (D13) bore signatures of Jyotish Mohrana. Vide the said letter he provided call details of telephone No. 9873007604 in the name of Sukhbir Singh for 21.1.07 to 28.1.07 and documents to CBI. The letter and the call details were Ex.PW11/A and PW11/B. Ex.PW11/C was attested photocopy of customer application form in the name of Sukhbir Singh for the mobile No. 9873007604. Scanned copy of ID proof of accused Sukhbir Singh was Ex.PW11/D. Upon being crossexamined, he denied the suggestion that Ex.PW11/B was not complete record from 21.1.07 to 28.1.07.
30. CBI thereafter examined Sh. R.S. Chauhan as PW12. Mr. Chauhan was from CFSL. He deposed that two sealed glass bottles were received CC No. 256/07 CBI Vs. Sukhbir etc pg 26 of 70 27 in the laboratory for examination. Examination of contents of both the bottles marked RHW and LHW gave positive tests for presence of phenolphthalein and sodium carbonate. His report was Ex.PW12/A which contained his signatures on both the pages. Upon being crossexamined, he denied the suggestion that he was not competent to conduct the test and gave report. He further deposed that as per his record he had received the bottles on the same day and the tests were conducted during the period 28.3.07 to 05.04.07. The bottles throughout remained in his custody though they were not sealed daily. Photocopy of his worksheet was Ex.PW12/B. He also admitted that there was no reference to his worksheet in his report. He denied the suggestion that his report was cryptic.
31. Mr. Satyanarayan was the next witness who examined by CBI. He deposed that he was working as conductor in DTC in 2007. On directions of Depot Manager he attended CBI office at about 3/ 3.30 p.m. on 24.1.07. He was told that the purpose of his visit was to trap a Delhi Police officer who was demanding Rs.20,000/ from complainant . He was shown the complaint by the CBI officer and the complainant. On next day 25.1.07 he again attended CBI office at 9 a.m. Complainant produced Rs.20,000/ comprising of notes of Rs.500/each. They were treated with some white CC No. 256/07 CBI Vs. Sukhbir etc pg 27 of 70 28 powder and demonstration was given. Number of notes were noted down on paper. Pre trap memo Ex.PW4/A contained his signatures on all the three pages.
32. At about 1.30 p.m., they left CBI office with complainant and another witness Virender Kumar who was from ONGC and other CBI officers. He was directed to remain with the complainant and overhear the conversation. Complainant was provided with a tape recording instrument. The other witness Virender Kumar was directed to remain with the CBI team. He sat in the shop of the complainant till 6 p.m. During this while complainant was receiving calls and was also calling people on his mobile. Complainant had talk with CBI officers and after 6 p.m. they all proceeded towards DB Gupta Road and reached there at about 6.15/ 6.20 p.m. He remained with the complainant and rest of the team was scattered here and there. Complainant crossed the road while he (PW Satyanarayan) remained at the spot. Thereafter other public witness Virender Kumar met him (PW Satyanarayan). Virender Kumar received call on his mobile from CBI officers who told them to reach Ajmal Khan Park. Both of them then reached there and took positions. Complainant had been directed to give signal by scratching his head after transaction of bribe is completed. Again CC No. 256/07 CBI Vs. Sukhbir etc pg 28 of 70 29 CBI officers called Virender Kumar and told them to reach at DTC bus stop near police station and said that they had arrested a Delhi Police officer. Upon reaching there he saw a Delhi Police officer arrested by CBI. Personal search of the accused Sukhbir was then taken and memo Ex.PW4/C contained his (PW Satyanarayan's) signatures. Site plan Ex.PW13/A also contained his (PW Satyanarayan's) signatures. All post trap proceedings were reduced to writing inside the police station. The bottles containing hand washes and cloth wrappers also bore his (PW Satyanarayan's) signatures. Cloth wrappers of cassettes Q1 and Q2 also contained his signatures. After few days he was called to the CBI office where cassettes were played and transcriptions Ex.PW4/E, PW4/F & PW4/G were prepared. He also signed them. The witness was then cross examined by Ld. PP wherein he claimed that his statement was not recorded by CBI. However, he admitted that he was introduced to Sarfaraz on 24.1.07. However, he denied the suggestion that he was told that Sukhbir Singh Head Constable was demanding Rs.20,000/. He also denied the suggestion that on instructions of Head Constable Sukhbir Singh , Sarfaraz had talked to Sukhbir at about 5 p.m. on 24.1.07. He also denied the suggestion that on 25.1.07 complainant had informed CBI officers that Sukhbir had called him and directed him to be ready with bribe CC No. 256/07 CBI Vs. Sukhbir etc pg 29 of 70 30 amount of Rs.20,000/ by 2 p.m. He also denied the suggestion that recorded conversation was heard and transferred to cassettes. He denied the suggestion that at about 6.10 p.m. there was conversation between complainant and accused over mobile phone wherein accused had called Sarfaraz to come to gate of PS DB Gupta Road. He also denied the suggestion that he saw complainant talking to a person who was later on identified as Sukhbir Singh. He further denied the suggestion that after about ten minutes again there was telephonic talks between Sarfaraz and Anoop Singh from the mobile phone of Sukhbir Singh wherein he had called him at the gate of PS DB Gupta Road. He also denied that on reaching near gate of PS DBG Road, he saw complainant talking to two persons of whom one was Sukhbir Singh and other was Anoop Singh. (The witness was asked by the prosecutor to identify the accused persons in the court, but he did not). He further denied the suggestion that complainant Sarfaraz was directed to give a signal by making a call on mobile No. 9818256993 of TLO D.K. Thakur after completion of the bribe transaction. He also denied the suggestion that after transaction of bribe complainant gave predetermined signal from his mobile to mobile of TLO and informed him that Sukhbir Singh and Anoop Singh were proceeding towards PS Market through opposite side gate of the park. He also denied CC No. 256/07 CBI Vs. Sukhbir etc pg 30 of 70 31 the suggestion that complainant Sarfaraz pointed towards a persons wearing leather jacket and informed that he was HC Sukhbir Singh who had demanded and accepted bribe of Rs.20,000/. He also denied the suggestion that the person arrested informed CBI officers that bribe money had been taken by his companion Rakesh Kumar a police informer and that Rakesh Kumar would come to bus stand opposite PS DBG Road to deliver the bribe amount.
33. The witness in his crossexamination by Ld. PP admitted that conversation was heard at the time transcriptions were prepared. He admitted that conversation was transferred to brand new cassettes and wrapped in a piece of cloth and sealed at the spot. He also denied the suggestion that while they were waiting at the bus stop for arrival of Rakesh Kumar to recover the bribe amount, Sukhbir Singh ran away from the custody and was given a chase and was apprehended inside Ajmal Khan Park and lastly he denied the suggestion that he connived with the two accused to save them and thus had deposed falsely. In his six line brief crossexamination, he claimed that transcript was prepared from an open cassette and it was not sealed in his presence.
CC No. 256/07 CBI Vs. Sukhbir etc pg 31 of 70
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34. CBI thereafter examined Shahid son of Nizamuddin as PW14. Shahid deposed that Sarfaraz was son of his Bua. He (Shahid) applied for mobile connection No. 9910283300 in the year 2006. Ex.PW6/C was the subscriber enrollment form. Photocopy of his photograph was Ex.PW14/A and copy of his driving licence was Ex.PW14/B (Wrongly exhibited as PW14/C). He then claimed that he gave the mobile connection to Sarfaraz Ahmad who was using the same. He denied the suggestion in cross examination that Sarfaraz was not using his mobile phone.
35. PW15 was D.K. Thakur he deposed that on 24.1.07 he was working as Inspector CBI at New Delhi. His SP Mr. N.M. Singh called him to his chamber and introduced him to Sarfaraz Ahmad. A written complaint Ex.PW9/A running into two pages was entrusted by SP for verification and necessary action. He then arranged idependent witness Virender Kumar and Satyanarayan. He examined the complainant . At about 5 p.m. complainant talked to Sukhbir Singh and Sukhbir Singh called the complainant near police station same evening. Bribe of Rs.20,000/ had been demanded by Sukhbir for not implicating him in theft of motorcycle case. A digital voice recorder was given to the complainant and he was asked to meet the accused and Constable R.K. Sharma was deputed to CC No. 256/07 CBI Vs. Sukhbir etc pg 32 of 70 33 accompany the complainant to bring back the digital voice recorder. Thereafter, FIR Ex.PW15/A was registered. The public witnesses were asked to go back and report back again in the morning of 25.1.07. In the night Constable R.K. Sharma delivered back digital voice recorder which revealed that allegations in the FIR of demand of bribe were correct. Next day the CBI team assembled in his room. Complainant and public witnesses were also there. In presence of all, complainant informed that he had received call from Sukbir Singh in the morning that he was proceeding to Muzaffarnagar and would return to Delhi by 2 p.m. and Sarfaraz should come to the police station by 2.00 pm alongwith Rs. 20,000/. Thereafter pre trap proceedings were conducted. Complainant produced Rs. 20,000/ on which phenolphthalein powder was smeared. Virender kumar independent witness touched the notes and after his right hand fingers were dipped in sodium carbonate, colour of the water turned pink. The digital recorder which had been received back by him was played in presence of all. It indicated that accused had demanded money from Sarfaraz. The recorded conversation was transferred to two blank cassettes. One was sealed and marked as Q1. Both public witnesses and he signed on it and on the cloth wrapper also. The bribe amount was kept in upper side left shirt pocket of the complainant. Pre trap memo was drawn CC No. 256/07 CBI Vs. Sukhbir etc pg 33 of 70 34 and the team left for residencecumshop of the complainant at Karol Bagh. Public witness Satya Narayan travelled in car of the complainant. Satya Narayan was directed to be a shadow witness, see transaction of the bribe and overhear the conversation. Complainant and Satya Narayan went to shopcumresidence of complainant, while rest of them took positions in a discrete manner near them. By 6.00 pm complainant came and informed that he had conversation with Sukhbir Singh who informed him that he was reaching police station in 15 mins., and directed him (Sarfaraz) to meet him over there. Complainant and shadow witness proceeded towards DGB road, Police station and CBI team members followed them. Complainant was then seen talking to a person in front of police station. After 10 mins., complainant was seen walking on DBG road Karol Bagh in direction of Pahar Ganj. They also followed. Complainant informed him that he was talking to Sukhbir Singh. About 5 mins. later in their presence complainant received a call from Sukhbir Singh. Complainant informed him (PW D.K. Thakur) that he was being called to Ajmal Khan Park. The entire team left for Ajmal Khan Park. Inside the park there was a marriage pandal and complainant waited at a small round about. Everbody took position. Shortly threaafter two people came. They were talking to the complainant. Thereafter they started moving towards other direction towards Tibia CC No. 256/07 CBI Vs. Sukhbir etc pg 34 of 70 35 College. He then received call from mobile phone of the complainant who informed them that bribe had been collected. They rushed towards the escaping accused persons. In the front gate of Tibia College there are large number of shops. Complainant pointed towards accused Sukhbir Singh who was then apprehended. Upon being questioned, he got perplexed and admitted taking of bribe but claimed that the money had been taken away by the other person. Thereafter PW Virender Kumar searched the person of Sukhbir but tainted bribe money was not found. He said that the same had been taken away by police informer Rakesh Kumar who would shortly meet him at the bus stop, opposite police station. They waited for sometimes, but nobody came. Complainant informed the CBI officers, that the person who had escaped with the money was Anoop Singh. Thereafter solution of sodium carbonate was prepared. Both hands of Sukhbir Singh were dipped one by one and the solution turned pink. It was poured into bottles. They were Ex P6 and P13. At about 9.45 pm, Sukhbir Singh started complaining of pain in his body and sat down on the pavement. Thereafter he fled away from the spot. He was given a chase and apprehended after 600700 mtrs. People gathered at the spot. Thereafter accused was taken to police station and remaining proceedings were conducted over there. ACP Meena came there and informed that message CC No. 256/07 CBI Vs. Sukhbir etc pg 35 of 70 36 had been flashed to secure presence of HC Anoop Singh. Digital voice recorder was taken back from the complainant and the conversation was transferred to blank cassette which was sealed. A rough site plan was also prepared on his direction. During custody voice samples of Sukhbir Singh was taken in presence of independent witnesses. Investigation was thereafter transferred to Inspector S.S. Bhullar.
36. Upon being crossexamined, he denied the suggestion that complainant did not have any talk with accused Anoop Singh at the time of raid. He claimed that Sukhbir was apprehended at about 7.30 p.m. and after apprehension he had stated that money was taken away by Anoop Singh. He denied the suggestion that complainant did not disclose name of Anoop Singh as the person who had taken away money. He also denied the suggestion that Anoop Singh escaped to avoid his alleged illegal arrest and seek anticipatory bail. He could not tell the precise direction in which accused had fled but claimed that they had fled out of main gate opposite Tibia College and turned left and ran towards DB Gupta Road. He also admitted as correct that complaint Ex.PW9/A did not reveal the time at which it was marked to him. He also denied the suggestion that he had not followed instructions contained in CBI Manual while laying trap. He also CC No. 256/07 CBI Vs. Sukhbir etc pg 36 of 70 37 admitted that he had not submitted any report in writing to SP about verification. He denied the suggestion that specimen voice sample of Sukhbir Singh was not taken in his presence or that site plan Ex.PW13/A was a false document. Regarding digital recorder being blank prior to alleged recording, he claimed that digital recorder was always blank until it is placed on recording mode. He also claimed that mixing of voices was not possible from the folders available in the digital recorder. Lastly he denied the suggestion that Sukhbir had been falsely implicated.
37. Ct. Girwar Singh was examined as PW16. He deposed that on 25.1.2007 he was working as constable at PP Sidhipura under PS DB Gupta Road. Accused Anoop Singh was working as head constable in the police station DB Gupta Road. On 25.1.07 at about 1.30 a.m. Anoop Singh had telephoned the police station and enquired whether CBI officers were still there. He denied the suggestion as crossexamination that Anoop Singh had not telephoned him on that night.
38. The last witness to be examined was Inspector S.S. Bhullar. He deposed that he had taken up investigation of the case on 08.02.07 from Inspector D.K. Thakur. He collected documents, took specimen voice CC No. 256/07 CBI Vs. Sukhbir etc pg 37 of 70 38 sample of Anoop Singh after he had surrendered in court, he sent hand washes of Sukhbir Singh to CFSL for report under signatures of SP Sh. S.K. Palsania. Cassettes were also sent to CFSL. He collected call details, reports of examinations, recorded statement of 13 witnesses, collected documents from SHO DBG Road and filed the charge sheet Ex.PW17/C. Upon being crossexamined, he claimed that he had taken voice sample of Anoop Singh in presence of independent witnesses. He admitted that nothing was recovered from the accused. He could not record statements immediately as he was busy in other cases. He also denied the suggestion that he had colluded with inspector D.K. Thakur and fabricated the records. No document for procuring phenolphthalein powder was prepared. He claimed that he was not aware whether tampering in audio cassette was possible. He denied the suggestion that he had formulated statement of witnesses as per interest of the case.
39. After closure of P.E., statement of the accused was recorded u/s. 313 Cr.P.C. wherein both of them denied case of the prosecution and claimed to be innocent. Sukhbir Singh claimed that so far as he remembers his hand wash was not taken. He claimed that his honesty in discharge of his duty created animosity amongst law breakers and they CC No. 256/07 CBI Vs. Sukhbir etc pg 38 of 70 39 falsely implicated him. Accused Anoop Singh admitted that he was performing duty of Incharge Malkhana and was detained for Republic Day parade. He claimed that his voice sample was not taken by anybody. Regarding his implication, he just claimed in two lines that he was innocent and had been falsely implicated.
40. None of the accused led any evidence in defence.
41. I have heard Mr. Praneet Sharma, Ld. Sr. PP for CBI and Mr. D.S. Pawaria and Sh. H.K. Sharma, advocates for the two accused.
42. According to Ld. Counsel for the accused Sukhbir Singh, there was no pre trap demand. No recovery was made from the accused. Complainant and shadow witness did not identify him and Trap Laying Officer was unreliable as he himself got involved in a bribery case.
43. Ld. Counsel for accused Anoop Singh submitted that his name did not figure in the FIR, neither demand nor acceptance had been proved by the prosecution. He further submitted that I.O. had admitted that there was delay in recording statements u/s 161 Cr.P.C. He also claimed that after surrender and arrest of accused Anoop Singh, he was not kept in a muffled CC No. 256/07 CBI Vs. Sukhbir etc pg 39 of 70 40 face and court identification is of no use. He further claimed that mere absconding does not point to guilt of the accused.
44. Ld.. Senior Prosecutor for CBI Sh. Praneet Sharma, on the other hand submitted that case of the prosecution had been proved to the hilt. He submitted that it was true that no recovery of tainted notes was effected but that did not damage case of the prosecution, as otherwise there was sufficient material to corroborate case of the prosecution that both the accused had conspired and had demanded bribe and also accepted the same.
45. Before proceeding further, I would like to quote the observations made very recently on 31.01.2012 by My Lord Mr. Justice Asok Kumar Ganguly of Hon'ble Supreme Court in case titled as Dr. Subramanian Swamy Vs. Dr. Manmohan Singh & Ors . My Lord had observed:
"Today, corruption in our country not only poses a grave danger to the concept of constitutional governments, it also threatens the very foundation of Indian democracy and the Rule of Law. The magnitude CC No. 256/07 CBI Vs. Sukhbir etc pg 40 of 70 41 of corruption in our public life is incompatible with the concept of the socialist, secular democratic republic. It cannot be disputed that where corruption begins, all rights end. Corruption devalues human rights, chokes development and undermines justice, liberty, equality, fraternity which are the core values in our Preambular vision. Therefore, the duty of the court is that any anti corruption law has to be interpreted and worked out in such a fashion as to strengthen the fight against corruption. That is to say any situation where two constructions are eminently reasonable, the court has to accept the one that seeks to eradicate corruption to the one which seeks to perpetuate it.
Time and again this court has expressed its dismay and shock at the ever growing tentacles of corruption in our society but even then situation have not been improved much."
46. Prosecution to succeed has to satisfy the Court that there was CC No. 256/07 CBI Vs. Sukhbir etc pg 41 of 70 42 demand of bribe and acceptance of the same. Demand can be made by spoken words or even by gestures. Corrupt public servants are now even using the facility of mobile phone by typing out the bribe amount and showing it to the victim without uttering a single word from their mouth. Complainant Sarfaraz Ahmed had made written complaint to CBI dt. 24.01.07. He very categorically mentioned in the complaint Ex. PW9/A that he met accused Sukhbir Singh at police station DBG Road on 22.01.07. Sukhbir Singh took his mobile number and thereafter rang him and summoned him to gate of the police station. Upon reaching the police station, accused Sukhbir Singh demanded Rs.20,000/. After entering the witness box, complainant developed cold feet. Hon'ble Madras High Court in case titled as Public Prosecutor Vs. A. Thomas: Manu /TN/0153/1959 had held in a similar case where complainant went to police and had narrated the events, police asked him to reduce the information to writing and give written complaint because it is notorious that such complainants are subsequently won over or they get cold feet and resile from their complaint and deny even having made such a complaint. Complainant Sarfarz Ahmed after entering the witness box did not completely support case of the prosecution and so he was cross examined by Ld. Public Prosecutor.
CC No. 256/07 CBI Vs. Sukhbir etc pg 42 of 70
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47. Hon'ble Delhi High Court in Inder Singh Vs. State: 1996 JCC 262 had an occasion to deal with hostile witness. Hon'ble Court held:
"It is true that prosecution has not cared to further crossexamine Sri Bhagwan when he had turned hostile to the prosecution case but this lapse of the prosecutor, who conducted the case before the trial court, would not inhibit us from scrutinizing the whole case of the prosecution in order to determine as to which part of the hostile testimony of Sri Bhagwan can be relied upon".
48. Hon'ble Supreme Court in State of U.P. Vs. Chet Ram : AIR 1989 SC 1543 held that entire evidence of hostile witness is not to be excluded or rendered unworthy of consideration.
49. In Gura Singh Vs. State of Rajasthan : (2001) 2SCC 205 Hon'ble Apex Court held:
"From the above conspectus, it merges clear CC No. 256/07 CBI Vs. Sukhbir etc pg 43 of 70 44 that even in a criminal prosecution when a witness is crossexamined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the judge of fact to consider in each case whether as a result of such crossexamination and contradiction, the witness stand thoroughly discredited or can still be believed in regard to a part of his testimony.
If the judge finds that in the process the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be credit worthy and act upon it. If in the given case, the whole of the testimony of the witness is impunged, and in the process, the witness stands squarely and totally discredited, the judge should as a matter of CC No. 256/07 CBI Vs. Sukhbir etc pg 44 of 70 45 prudence, discard his evidence in toto."
50. Now let us examine testimony of Sarfaraz Ahmed in the light of above judgments. It stands established :
i) That Sarfaraz went to CBI and made a complaint in his own handwriting.
ii) He had taken Rs.20,000/ with him to CBI office which was to be paid as bribe.
iii) When he reached CBI office independent witnesses and other team members were there.
iv) He handed over Rs.20,000/ to CBI officers who returned it to him and he kept them in his shirt pocket.
v) He was handed over a voice recorder and also explained the operations.
vi) PW Satyanarayan admitted that he was asked to act shadow witness and over hear and see the transaction between Sarfaraz Ahmed and Sukhbir.
vi) Sarfaraz was directed to give signal after transaction of bribe.
51. If we go through report of PW Deepak Kumar Kanwar of CFSL lab who had examined questioned voices as well as specimen voices of the two accused which is Ex. PW10/A, we find that the voices recorded at the CC No. 256/07 CBI Vs. Sukhbir etc pg 45 of 70 46 spot and on earlier occasion were those of the two accused. Transcripts make it more than clear that indeed bribe had been demanded. The witness (PW10) indeed had been cross examined, but nothing emerged which would shake testimony of the witness regarding veracity of his report. Hon'ble Apex court in R.M. Malkhani Vs. State of Maharashtra had held that tape recorded evidence is indeed admissible.
52. It is duty of the Court to separate chaff from the grains and accept and act upon the grains so separated. I referred to decisions of Hon'ble Apex Court above in this regard. Here, Sarfaraz Ahmed after entering the witness box turned hostile. He tried to save neck of the accused persons. He introduced theories of friend's father making payment of bribe money. If we go through transcript of the conversation recorded at Ajmal Khan Park on 25.01.07 at the tail end, we find recorded:
"Mein aap ko phone maar raha hoon, kaam ho gaya hai......haan haan wo nikal rahe hai, bhage jaa rahe hai.......wo to ruk nahin rahe......haan haan nikal rahe hai, na bahar ki taraf se....paidal hai, wo choron ki tarah bhage jaa rahe hai, wo to .....choron ki tarah bhag rahe hai, park ki taraf se....mere peechey aao...mere peechey....mere peechey ho na CC No. 256/07 CBI Vs. Sukhbir etc pg 46 of 70 47 tum".
53. These words were uttered to the CBI team and they would clearly reflect that after receiving payment of bribe, the two accused were running away like thieves and complainant was telling the CBI officers about these developments.
54. PW Sarfaraz upon being cross examined by Ld.PP claimed that after he and R.K. Sharma left CBI office for PS DBG Road, he received a call from Sukhbir Singh. He again corrected himself claiming that he had not received any call from Sukhbir Singh. This is totally contrary to mobile phone records. He indeed had received a call from Sukhbir Singh at 11.19 am. He had also received a call from Sukhbir Singh at 5.46 pm on 24.1.2007.
55. Sarfaraz had denied the suggestion that at about 5 p.m., he made a call to Sukhbir Singh who informed him that he would be reaching Delhi at about 6 p.m. This again is contrary to records of mobile phones. On 25.1.07 Sarfaraz indeed had made a call at 4.58 pm to Sukhbir Singh.
56. Sarfaraz had denied the suggestion that he made a call to Sukhbir CC No. 256/07 CBI Vs. Sukhbir etc pg 47 of 70 48 Singh at about 6.10 pm from the gate of PS DBG road. This again is in contradiction with the mobile record, according to which Sarfaraz had called Sukhbir Singh at 6.40 pm on 25.01.07.
57. Sarfaraz had denied that after he went to Ajmal Khan park there was any marriage pandal inside. Independent witness Virender Kumar had claimed that indeed there was a marriage pandal and accused Sukhbir had fled towards the place where marriage was taking place.
58. Sarfaraz had denied the suggestion that CBI team caught Sukhbir Singh and he was personally searched. Independent witness Virender Kumar had claimed that he had taken search of accused Sukhbir Singh.
59. PW Virender Kumar on one hand claimed that he had taken personal search of accused Sukhbir Singh, he had also run after the accused to catch him, but he refused to identify him in the court. PW Satyanarayan admitted in his cross examination by Ld. PP that he was introduced to Sarfaraz on 24.01.07. He had also made a call to Sukhbir Singh at 5.00 pm. This is corroborated by call records which indicates a call CC No. 256/07 CBI Vs. Sukhbir etc pg 48 of 70 49 at 5.25 pm. In such like matters, it is quite possible that witnesses might not be able to tell the exact time, but only approximate time and so there might be difference of 15 or 20 mins. In their deposition. This corroborates version of CBI that Sarfaraz had come to it on 24.01.07 for making complaint against Sukhbir Singh.
60. Satyanarayan had denied the suggestion that there was conversation between Sarfaraz and Sukhbir over mobile phone wherein Sukhbir had called Sarfaraz to gate of police station. This is contrary to call records which indicate that there was conversation between Sarfaraz and Sukhbir on 25.01.07 at 6.29 pm. Case of CBI finds corroboration from telephone records. Human beings may speak lie, but not telephone records which are computerized.
61. Satyanarayan had also denied the suggestion that complainant had informed that he had received telephone call from Anoop Singh over phone of Sukhbir Singh., This is again contrary to mobile phone records which shows conversation of 8 sec. at 6.41 pm on 25.01.07.
62. Satyanarayan had also denied the suggestion that Sarfaraz was CC No. 256/07 CBI Vs. Sukhbir etc pg 49 of 70 50 directed to give signal on mobile no. 9818256993 of TLO D.K. Thakur after completion of the bribe transaction. This is completely against the mobile record according to which there were 16 mobile calls between complainant and TLO on 25.01.07, out of which 10 calls were made after 7.43 pm till 10.11 pm. The first call to TLO was made by Sarfaraz at 7.27 pm.
63. PW Satyanarayan in his cross examination by Ld. Counsel had claimed that cassette had not been sealed in his presence. If that was so, how his signatures appear on the cassette and the wrapper as admitted by him and further he in cross examination by Ld. PP admitted that conversation was transferred in brand new audio cassette and cassette was wrapped in a piece of cloth and sealed at the spot.
64. TLO and independent witness Virender Kumar claimed that accused Sukhbir upon being finding opportunity ran away from the spot and was apprehended after a short while. This is relevant as conduct. Absconding immediately upon apprehension is indicator of guilty mind.
65. These all only indicate that in fact there was a demand of bribe, otherwise there was no occasion for Sarfaraz to visit CBI office on 24.1.07.
CC No. 256/07 CBI Vs. Sukhbir etc pg 50 of 70
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He had not gone there on sight seeing mission. There was no occasion for him to carry Rs.20,000/ to CBI office if there was no demand of bribe. There was no occasion for him to come back to his shop alongwith CBI team, had there been no demand of bribe. There was no occasion for detention of Satyanarayan as shadow witness if there was no demand of bribe. There would have been no need to give instructions to the complainant to give signal after completion of transaction of bribe. CBI was not acting in vacuum. It indeed was acting on complaint which had been made to them. It only points out to the fact that Sarfaraz got wiser after arrest of the accused and for the reasons best known to him he turned hostile and did not support case of prosecution totally. While he was being crossexamined he reiterated that complaint Ex.PW9/A was in his own handwriting. He had claimed that Ex.PW9/A was written on directions of CBI officers in PS DB Gupta Road. Individuals may speak lie but not the facts. Ex.PW9/A which Sarfaraz Ahmad claims to have been written on 25/26.1.07 in PS DBG Road actually contains the date 24.1.07 written by Sarfaraz in his own handwriting. It also bears endorsement and signatures of SP CBI again which is dated 24.1.07. If this complaint had been written in the police station on 25/26.1.07, then there was no occasion for putting of the date 24.1.07 by complainant himself. There is no history of bad blood CC No. 256/07 CBI Vs. Sukhbir etc pg 51 of 70 52 between CBI officers and accused Sukhbir Singh. CBI probably was not even aware of existence of Sukhbir Singh. Then why should CBI officers implicate Sukhbir Singh falsely and direct complainant to write his name in the complaint Ex. PW9/A. Even Sukhbir Singh in his statement u/s 313 Cr.P.C. did not make any claim that he was on bad terms with CBI and so they implicated him. Rather he had claimed that he was vigilant and honest in discharge of his duty and that created animosities among law breakers and they falsely implicated him to create terror among the upright officials of Delhi Police. Sarfaraz had claimed that he had written the complaint on dictation of CBI officers. The CBI officers during course of cross examination were not even give suggestion by learned advocates for the accused persons that they had dictated complaint Ex.PW9/A. According to complaint Ex.PW9/A, upon visit to police station on 22.1.07 accused Sukhbir took his phone number thereafter he called him to the police station gate and demanded Rs.20,000/. Again on 24.1.2007, he rang up at about 11 /11.30 a.m. and reiterated his demand. If we take a look at the call details, we find that indeed Sukhbir had called complainant at 11.19 a.m. on 24.1.07. A look at the call records will further indicate that on 22.107 and 23.1.07 there were 13 telephonic conversation between Sukhbir and complainant Sarfaraz. This corroborates the complaint that CC No. 256/07 CBI Vs. Sukhbir etc pg 52 of 70 53 Sukhbir was trying to extract bribe. Nobody will ever buy Sukhbir Singh's story of his honesty and creation of animosity among law breakers. Another thing which becomes more than clear is that complainant is desperately trying to save the accused persons and nothing else.
66. In case titled as Hazari Lal Vs. State : AIR 1980 SC 873, scooter rickshaw of complainant PW3 was impounded. Accused police officer demanded Rs.60/ to release it. Complaint was made. Raiding party arrested the accused. Accused took out the money from his pocket and flung it across the wall into adjoining room. Complainant turned hostile during trial. He claimed that some Hawaldar had demanded bribe and accused had not demanded. Rather he claimed that accused had refused to take money and jerked his hand. Out of two panch witnesses, one became mad and other only partly supported prosecution. After hand wash of the accused was taken, the solution turned pink. My Lord Mr. Justice R.S. Sarkaria and Mr. Justice O. Chinnappa Reddy held "We are not prepared to accept submission of Mr. Frank Anthony, he is the very police officer who laid the trap should be sufficient for us to insist upon CC No. 256/07 CBI Vs. Sukhbir etc pg 53 of 70 54 corroboration. We do wish to say that there is no rule of prudence which has crystallized into the rule of law, nor indeed any rule of prudence, which requires that the evidence of such officer should be treated on the same footing as evidence of accomplices and there should be insistence on corroboration. In fact 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 a officer. It is all a matter of appreciation of evidence and on such matters there can be no hard and fast rule, nor there can be any precidential guidance".
"The respectability and the veracity of a witness is no necessarily dependent upon his status in life and we are not prepared to say that clerks are less truthful and more amenable than their superior officers".
" It s not necessary that the passing of money should be CC No. 256/07 CBI Vs. Sukhbir etc pg 54 of 70 55 proved by direct evidence. It may also be proved by circumstantial evidence. The events which followed in quick succession in the present case lead to only inference that the money was obtained by the accused from PW3".
67. Hon'ble Supreme Court in S.S. Bobade Vs. State of Maharashtra:
(1973) 2SCC 793 held:
"The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hundi, hesitancy and degree of doubt........... The evil of acquitting a guilty person light heartedly as a learned author (Glanville William in "Proof of Guilt") has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of law, and this in turns leads to public CC No. 256/07 CBI Vs. Sukhbir etc pg 55 of 70 56 demand for harsher legal presumptions against indicated 'persons' and more severe punishment of those who are found guilty".
68. Even shadow witness PW Satyanarayan tried to shield the accused. If there was no demand of bribe, there was no occasion for him to be detailed as shadow witness. There was no need for him to sit in the shop of the complainant after they left CBI office. He had denied the suggestion that at about 6.10 pm, there was conversation between complainant and accused wherein accused had called Sarfaraz to gate of PS D.B. Gupta road. If we take a look at call records, we find that indeed there was telephonic contact between the two at 6.29 pm as per call records of phone of Sukhbir. Satyanarayan had also denied that after about 10 mins. there was again telephonic call between complainant and Anoop Singh from the phone of Sukhbir Singh. If we again take a look at telephone records, indeed there was conversation between the two at 6.41 pm on 25.01.07. Human beings may speak lie, but not the telephone records which are computerized. He had also denied the suggestion that complainant Sarfaraz was directed to give signal by making a call on mobile no. 9818256993 of TLO D.K. Thakur. This is completely contrary to CC No. 256/07 CBI Vs. Sukhbir etc pg 56 of 70 57 mobile record according to which, there were 16 mobile calls between the complainant and TLO on 25.01.07, out of which 10 calls were after 7.02 pm till 10.11 pm. The first call to the TLO was at 7.27 p.m.
69. Upon being cross examined by Ld. PP, witness admitted that at the time transcriptions were prepared, he heard the conversation. I would like to reproduce some portion from the conversation recorded on 24.01.07 as follows:
Sukhbir Mera hua jugad, hua ki nahin hua......
Sarfaraz
Sukhbir Thik hai
Sarfaraz Thik hai
Sukhbir Paise waise laya ki nahin
Sarfaraz Hein
Sukhbir paise
Sarfarz ab kuch nahin
Sukhbir Tu tho keh raha tha
Sarfarz Aapne kahi nahin mere se ki paise
CC No. 256/07 CBI Vs. Sukhbir etc pg 57 of 70
58
70. The words "mera jugaad hua ki nahi hua" would clearly reflect that accused Sukhbir had made a demand for money previously and now he is making enquiry about it as to whether the money has been arranged or not.
71. Conversation recorded on 25.01.07:
Sukhbir Nahin abhi nahin bataunga. Mujhe pata hi nahin hai kuch. Kya hai kya mamla hai Sukhbir Mein batata hoon ki mein malkhane wale ke pass gaya tha. Maine baat kari thi to wo bola ki aur to iska koi role hi nahin. Baki jo main role hai wo Bhureka hai. Iske pass Bhure ka phone aaya tha isne Bhure se yeh keh diya ki motorcycle leke thane aaja. Wo samaj hi gaya ki thane ka naam le diya. To wo saari baat samaj gaya aur bhaag gaya. Bus mein hai ki iski wajah se Bhura bhaag gaya.
Sukhbir Bahenchod keh deta...yahan aa.. wahan aa ja.
Bhaga hi diya. Thane ka naam lene ki kya jajoorat CC No. 256/07 CBI Vs. Sukhbir etc pg 58 of 70 59 thi. Thane ka naam lena jajoori tha....
Sarfaraz Kitni der mein aaoon...
Sukhbir Mera phone na aaya to phone pe phone karliya
72. Incidently accused Anoop Singh was Incharge, Malkhana.
73. Conversation recorded at the spot between the two accused and the complainant:
Anoop Yahan aaja re
Sukhbir Aage
Sarfarz Kahan andhere mein le ja rahe ho
Anoop Kya laya tu. Motorcycle ya paidal hi aaya
Sarfarz hain, paidal hi bhaga rahe ho tum
Sukhbir kya murder kar raha hai koi tera andhere
mein....hain bhai
Sarfaraz Hain
Sukhbir Koi tera murder karega
CC No. 256/07 CBI Vs. Sukhbir etc pg 59 of 70
60
Sukhbir Bees hai yeh
Sarfarz lo lo yeh rahe dus
Sukhbir dus hai yeh
Sarfarz haan, yeh dus hai
Sukhbir thik hai
74. So it becomes more than clear that indeed there was demand of bribe by the two accused. PW Virender Kumar had signed the transcripts which had been prepared in the case. They are Ex.PW4/E, PW4/F and PW4/G. PW4 in his crossexamination was not even given suggestion that transcripts were not prepared in his presence and he had not heard them.
Rather in his crossexamination he had claimed that cassette had run for about half an hour when they were called to CBI office and he had heard the voices. Further he claimed that some of the words were clear and audible and at few portions there was noise of horns. That means that the cassettes were played in his presence, he had heard them though there were noises in some places and then signed the transcripts. Even PW Satyanarayan, who totally turned hostile, admitted that transcripts were prepared on identification of voice of both the accused by the complainant. So at the time cassettes were played the demand of bribe was very clear CC No. 256/07 CBI Vs. Sukhbir etc pg 60 of 70 61 therein. If there was no demand of bribe then there was no occasion for accused Sukhbir to ask complainant "Paise vaise laya ke nahi". These words uttered by Sukhbir Singh clearly point out to previous demand of bribe. Hon'ble Supreme Court in R.M. Malkani Vs. State of Maharashtra:
1973 AIR 157, had held that tape recorded conversation is admissible if it was relevant to the matter and there was identification of the voice and accuracy of recording was ensured. In Yusufalli Ismail Nagree Vs. State of Maharashtra: 1968 SC 147, Hon'ble Court had held:
If a statement is relevant, an accurate tape record of the statement is also relevant and admissible. The time and place and accuracy of the recording must be proved by a competent witness and the voices must be properly identified. One of the features of magnetic tape recording is the ability to erase and reuse the recording medium. Because of this facility of erasure and reuse, the evidence must be received with caution. The court must be satisfied beyond reasonable doubt that the record has not been tampered with.
CC No. 256/07 CBI Vs. Sukhbir etc pg 61 of 70
62
75. Here the conversation was not only relevant but the voices were also identified by the expert examiner. The voice samples had been taken in presence of independent witness Mr. Harbhajan Singh Bamra and Mr. Deepak Singh. They had no axe to grind. They were Senior Officers of Public Sector Banks. On basis of voice samples taken in their presence, the expert had given his report. Even PW Satyanarayan who went out of his way to support the accused, admitted in his crossexamination by Ld. PP that recorded conversation was heard in CBI office where transcripts were prepared. He further admitted that conversation was transferred to brand new audio cassette and cassette was wrapped in a piece of cloth and sealed at the spot. Sealing at spot would indicate that no interpolation had been carried out and so there is no reason to believe that recording had been tampered with. The expert was not even given suggestion that any interpolation had been done in the cassettes and any sentences have been inserted therein, though bald suggestion was given that he knew that exhibits were tampered with. Thus, it stands established beyond doubt that there was demand of bribe by the two accused.
76. Now let us see if acceptance has been proved or not. Though being found with GC notes helps prosecution a great deal in establishing CC No. 256/07 CBI Vs. Sukhbir etc pg 62 of 70 63 acceptance of bribe, non recovery of GC notes should not be taken as failure of the prosecution to prove acceptance of bribe.
77. My Lord Mr. Justice G.S. Sistani decided case titled as Vinod Vs. State : ILR 2007 pg. 125, where knife with which murder was committed was not recovered. It was held that non recovery of weapon of offence cannot in the facts and circumstances of the case be fatal and cannot weaken the case of the prosecution.
78. There are large number of judgments according which even non recovery of dead body does not hamper conviction in case of murder. It all depends upon facts and circumstances of each individual case.
79. Herein accused Sukhbir had been apprehended by CBI team after he accepted money. Even PW4 who was independent witness Virender Kumar admitted in his cross examination by Ld. PP that he alongwith CBI team had given a chase to the accused. His hand washes were taken. The solution of sodium carbonate turned pink. Even PW Virender Kumar corroborated this version of CBI. The solution would have never turned CC No. 256/07 CBI Vs. Sukhbir etc pg 63 of 70 64 pink if Sukhbir had not handled the GC notes. Rather in statement u/s. 313 Cr.P.C, he simply claimed that his hand washes were not taken. He claimed that his hands were clasped by number of persons. Even PW4 Virender Kumar who did not support prosecution completely and was crossexamined by Ld. PP, claimed that hand washes of Sukhbir Singh were taken and the solution turned red. Even PW Satyanarayan who totally appeared to have been won over by the accused persons, admitted that hand wash bottles and wrappers contained his signatures. If hand washes of accused Sukhbir Singh had not been taken, then to whom the liquid in the bottles pertained to? Hon'ble Apex Court in AIR 1992 SC 1201 held "in view of the fact that on washing the hands of the accused by a solution of sodium carbonate, the water turned pink, it leaves no manner of doubt that the amount of Rs. 50,000/ was touched and handled by the accused". The hand washes were of accused Sukhbir Singh as both the independent witnesses admitted their signatures on the bottles and wrappers despite having taken a hostile stand. Solution turning red indicates that he had handled and then handed over the tainted money to his coaccused, as I have already observed above.
80. PW Virender claimed that Sukhbir was arrested by the CBI and his CC No. 256/07 CBI Vs. Sukhbir etc pg 64 of 70 65 personal search was taken by him and he signed the personal search memo. But he refused to identify Sukhbir Singh in the court. If it was not present accused Sukhbir Singh who is facing trial in this case then which other Head Constable Sukhbir Singh S/o. Kapur Singh whose employee code was 28911605 who was resident of H80, Rajendra Park, Nangloi, had been caught by CBI whose personal search was taken in his presence and he also signed personal search memo. If this version of witness is believed, it would mean that there were two Head Constables Sukhbir Singh in Delhi Police. Both whose fathers were Kapur Singh. Both of them had employee code 28911605 and both were resident of H80, Rajendra Park, Nangloi. Unfortunately for the witness CBI official had provided copy of the personal search memo to the person who had been arrested by them under his signatures. I have tallied signatures of the recipient of copy of arrest cum personal search memo with the signatures of Sukhbir Singh on his statement u/. 313 Cr.P.C. on the court record and they matched perfectly. So much for the truthfulness of the witness whose signatures appear on the same recovery memo.
81. So far as case of Anoop Singh is concerned, he was not arrested at the spot. Rather he surrendered few days later on and nothing was CC No. 256/07 CBI Vs. Sukhbir etc pg 65 of 70 66 recovered from him. He had been absconding from his duty. Ld. Counsel for the accused submitted that mere absconding by itself, would not mean anything. He relied upon case titled as Datar Singh Vs. State of Punjab, Kalloo Passi Vs. State in his support. My Lord Mr. Justice Pradeep Nandrajog in Kalloo Passi's case had held that "act of absconding was a relevant piece of evidence, but its value would depend upon circumstances of each case. A circumstance of absconding can be extremely fatal if prosecution is able to prove that victim was last seen in the company of accused."
82. Here, if we again consider the spot conversation recorded on 25.01.07, transcript of which is Ex. PW4/G, we find that it has voices not only of complainant and Sukhbir Singh, but also of Anoop Singh. It would indicate that Anoop Singh was also present alongwith Sukhbir Singh in Ajmal Khan Park when the bribe was accepted. I would quote again from the transcript which I had quote earlier also as follows:
Anoop Yahan aaja re Sukhbir aage Sarfaraz Kahan andhere mein le ja rahe ho CC No. 256/07 CBI Vs. Sukhbir etc pg 66 of 70 67 Anoop kya laya tu, motorcycle ya paidal hi aaya ....................
Sarfaraz Keh raha muje tho farig kardo Sukhbir haan kar rahe hai.
Anoop - kar diya jo karna hai, thik hai na
83. Now this is a last conversation which took place between Sukhbir Singh, Anoop Singh and Sarfaraz. Both the accused then fled. While Sukhbir was caught, Anoop Singh managed to escape. Subsequent conduct is a relevant fact according to Section 8 of the Indian Evidence Act.
According to illustration (i) absconding of accused, after commission of alleged crime is relevant. According to PW8 SI Krishan Kumar who was posted in PS DBG road, on 24/25.01.07, Anoop Singh was Incharge of Malkhana. He was detained for duty for Republic day parade on 26.01.07, but he absented himself. DD No. 10B which was Ex. PW8/K was registered regarding his absence. This again is a relevant conduct post crime. In his statement u/s. 313 Cr.P.C he offered absolutely no explanation for absenting himself. He chose not to give any answer to this query by the court. According to PW16 Ct. Girwar Singh, accused Anoop CC No. 256/07 CBI Vs. Sukhbir etc pg 67 of 70 68 Singh was working as Head Constable in PS: DBG Road. According to him (PW16) on 25.01.07 at about 1.30 am, accused Anoop Singh rang up the police station and enquired whether CBI officers were still there. It again is a relevant fact as accused Anoop Singh, after fleeing away from the spot, rang up the police station to find out if CBI officers had left or not. This again is a very relevant conduct post crime because accused was trying to find out if CBI was still looking for him or not. According to mobile phone records Anoop Singh had made a telephone call at 2.26 am. The above evidence taken alongwith spot conversation is sufficient to conclude that accused Anoop Singh was also part of the conspiracy. He had fled away with the GC notes from the spot. At the tail end of the spot conversation, complainant Sarfaraz uttered few sentences which I have already quoted about their running away like thieves after collecting the bribe.
84. Ld. Counsel for the accused had argued that in the RC no physical description of the accused had been given. He relied upon case titled as D. Gopala Krishnan Vs. Sadanand Naik. I would submit that when name of the accused had been mentioned in the RC as Sukhbir Singh, there was no need to give his physical description also.
CC No. 256/07 CBI Vs. Sukhbir etc pg 68 of 70
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85. Ld. Counsel for accused Anoop Singh had assailed delay in recording of statement of the witnesses. IO admitted this fact but offered a reasonable explanation thereto. He claimed that as he was busy with other cases, he could not record statements immediately. Ld. Counsel for Anoop Singh had also claimed that identification in the court was of no use. I am afraid, it is not so. Hon'ble Apex Court in Sidharth Vashisth @ Manu Sharma Vs. State : 2010 (IV) AD (SC) 441 had held:
"A close scrutiny of these judgments will reveal that they in fact support the case of prosecution. These judgments make is abundantly clear that even where there is no previous TIP, the court may appreciate the dock identification as being above board and more than conclusive."
86. Despite Sarfaraz having turned hostile, it is sufficient to conclude that indeed the two accused after accepting GC notes escaped from the spot. I, therefore, hold that accused Anoop Singh had escaped with the bribe money extracted from Sarfaraz Ahmed. Charge u/s 120B stands CC No. 256/07 CBI Vs. Sukhbir etc pg 69 of 70 70 established as both the accused were not only present at the time of acceptance of bribe, they also spoke with the complainant and rather accused Anoop Singh told the complainant to come over and asked him as to what he had brought and thereafter told the complainant that he had been freed and now there was no problem. Thus prosecution has been successful in making out its case against both the accused for having conspired, demanded and then accepted bribe of Rs. 20,000/ from Sarfaraz Ahmed. Both the accused stand convicted U/s 120B IPC r/w. Sec. 7 and 13(2) r/w 13(1) (d) of PC Act, Section 7 of P.C. Act r/w. Sec. 120B of IPC and Sec. 13(1)(d) r/w 13(2) of P.C. Act r/w Sec. 120B IPC.
Announced in open Court
on April 20, 2012 ( PRADEEP CHADDAH )
Special Judge:CBI01
Central District. Delhi
CC No. 256/07 CBI Vs. Sukhbir etc pg 70 of 70
71
IN THE COURT OF SH. PRADEEP CHADDAH:
SPECIAL JUDGE: CBI01, CENTRAL DISTRICT. DELHI CC No. 256/06 RC : DAI2007A0006 PS :CBI/ACB/ND U/s : 7 & 13 (2) r/w 13(1) (d) of P.C. Act, 1988 CBI Vs. 1) Sukhbir Singh S/o. Sh. Kapoor Singh R/o. H.No.80, Rajender Park Extn.
Nangloi, New Delhi41.
(Then posted as Head Constable in Delhi Police)
2) Anoop Singh S/o. Sh. Hoshiar Singh R/o. H. No. 166, ABlock, Gali No. 15, Gopal Nagar, Maharishi Dayanand Marg, Najafgarh, New Delhi.
(Then posted as Head Constable in Delhi Police) ORDER ON SENTENCE
1. This Court had vide its judgment dated 20.04.12 found both the accused guilty U/s 120B IPC r/w. Sec. 7 and 13(2) r/w 13(1) CC No. 256/07 CBI Vs. Sukhbir etc pg 71 of 70 72
(d) of PC Act, Section 7 of P.C. Act r/w. Sec. 120B of IPC and Sec. 13(1)
(d) r/w 13(2) of P.C. Act r/w Sec. 120B IPC.
2. I have heard Sh. Mohd. Azad Ld. Special PP for CBI and Ld. Counsel for convicts at length.
1. Sh. Mohd. Azad, Ld. Special PP prayed for taking of strict view of the matter and granting of exemplary punishment to the accused persons. He further prayed that sentences which should be awarded to the convicts should run consecutively. On the other hand, Ld. Counsel for the convicts prayed for taking of lenient view.
2. I have given my considered thought to the submissions made.
3. Convicts Pradeep Sharma and Ved Prakash were employees of CC No. 256/07 CBI Vs. Sukhbir etc pg 72 of 70 73 Slum Department which was earlier under DDA, subsequently they got transferred to MCD. The entire department was retransferred to DDA. While Pradeep Sharma was Asstt. Director and Ved Prakash was UDC. They demanded bribe from complainant Chattar Singh for issuance of No Objection Certificate. Complainant Chattar Singh instead of complying with the demand, made a complaint to CBI and got all the accused trapped.
4. My Lord Mr. Justice Krishna Iyer in Som Prakash Vs. State of Delhi : AIR 1974 SC 989 held:
"Bribes are paid not only to get unlawful things done but to get lawful things done promptly since time means money."
CC No. 256/07 CBI Vs. Sukhbir etc pg 73 of 70
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5. In the instant case also convict persons had demanded bribe for doing a job which was part of their duty and were paid by the state exchequer. They could not resist greed of making easy money and demanded bribe.
6. Hon'ble Supreme Court in Raman Lal Vs. State of Bombay :AIR 1960 SC 961 had held:
" For a public servant to be guilty of corruption is a very serious matter and the Courts would not look upon it with undue leniency."
7. Ld. Counsel for the accused prayed for taking of lenient view.
CC No. 256/07 CBI Vs. Sukhbir etc pg 74 of 70
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Both convicts Pradeep Sharma and Ved Prakash have two children each and their spouses are not earning. Merely because their spouses are not earning, should not lead the Court to treat them with kid gloves. The menace of corruption has entered into each and every segment of society. Because lenient views have been taken in past, we have reached the present hopeless situation. Having given my considered thought, I sentence convict Pradeep Sharma Asstt. Director, DDA and Ved Prakash UDC, DDA to two years R.I. each U/s 120B IPC r/w Sec. 7 and Sec. 12 and 13(1)(d) punishable U/s 13(2) of the P.C. Act. In addition, each one shall be paying fine of Rs. 20,000/ and in default of payment of fine undergo S.I. for one month. I further sentence each one of them for substantive offence U/s 7 of P.C. Act and sentence them to undergo R.I. for three years. In addition, each one shall be paying fine of Rs. 40,000/ and in default of payment of fine, they shall be CC No. 256/07 CBI Vs. Sukhbir etc pg 75 of 70 76 undergoing S.I. for three months. I also sentence them for substantive offence U/s 13(1)(d) r/w 13(2) of P.C. Act and sentence them to undergo R.I. for three years. In addition, each one shall be paying fine of Rs. 40,000/ and in default of payment of fine, they shall be undergoing S.I. for three months.
8. So far as convict Inderjeet is concerned, he was a tea vendor who participated in the crime by picking up the GC notes. Accused persons were wise enough not to touch the GC notes by their own hands. Instead they made gestures to convict Inderjeet to pick up the bribe money. Inderjeet obliged them and got trapped. One thing is for sure that this would not have been his first instance. Inderjeet would have been cooperating with them in this manner in the past also. To my CC No. 256/07 CBI Vs. Sukhbir etc pg 76 of 70 77 mind, sentence of one year R.I. U/s 7 punishable U/s 12 of P.C. Act shall meet ends of justice. In addition, he shall be paying fine of Rs. 20,000/. and in default of payment of fine, he shall be undergoing S.I. for two months.
9. The request made by Learned Special PP to the effect that sentences be ordered to run consecutively is declined. All the sentences of all the convicts shall run concurrently. They shall also be given benefits of period undergone as under trial (if any).
Announced in open Court
on April 23, 2012 ( PRADEEP CHADDAH )
Special Judge:CBI01
Central District. Delhi
CC No. 256/07 CBI Vs. Sukhbir etc pg 77 of 70