Delhi District Court
State vs . Hc Surenderkumar Page 1/39 on 30 September, 2019
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IN THE COURT OF SH. SANJAY KHANAGWAL
SPECIAL JUDGE (PC ACT)-02 (ACB),
ROUSE AVENUE COURTS, DELHI
CNR No. : DLCT01-014263-2018
FIR No. : 7/15
Police Station : Vigilance
CC No. : 154/19
Under Section : 7/13(1)(d) of Prevention of
Corruption Act, 1988
State
Versus
HC Surender Kumar
S/o. Sh. Nawal Kishore.
R/o.1732, Sector-23, Gurgaon.
Date of institution : 27.10.2018
Offences charged with : u/s 7/13 (1)(d) PCAct
Plea of the accused : Pleaded not guilty
Date of reserving the judgment : 24.09.2019
Date of pronouncement of judgment : 30.09.2019
Final Order : Acquitted
JUDGMENT:-
In this case accused Surender Kumar who was posted as HC has been charge sheeted for the commission of offence under section 7/13(1)(d) FIR NO. 7/15, CC No.154/19 State Vs. HC SurenderKumar Page 1/39 -:2:- Prevention of Corruption Act, 1988 on the basis of complaint of one Krishan Kumar. The charge has been framed u/s 7/13(1)(d) of PC Act against the accused.
2). As per brief facts of the case, the complainant was residing in the house No. 160, Sector 6, RK Puram, New Delhi on rent, whose landlady was Ms. Manju Nathani. In the month of August, 2013, the land lady and her husband Ramesh Nathani asked for some money as advance rent for the purpose of marriage of their daughter. Therefore, complainant made a payment of Rs.2.40 Lac in cash to them. Thereafter, on the demand of complainant, Ramesh Nathani gave a cheque of Rs.2.40 Lac for the purpose of repayment. On presentation to his banker, same was received as dishonored. Accordingly, he filed a complaint against him and the court had issued B/w against Ramesh Nathani. On 08.03.2015 when complainant was out of station, accused HC Surender Singh made a call through his mobile phone to him and told him that his landlady had made a complaint against him, therefore, either he has to vacate the flat or has to go to jail. On 13.03.2015 complainant met accused in Sector-6 Market, RK Puram police booth and he made a demand of FIR NO. 7/15, CC No.154/19 State Vs. HC SurenderKumar Page 2/39 -:3:- Rs.10,000/- for the purpose of saving himself from the consequences of complaint of his landlady. Accordingly, the deal was finalized in Rs.7000/- and a liquor bottle of 100 piper in order to save the complainant. The payment of bribe was agreed to be made in the installment of Rs.2000/- and Rs.5000/- respectively. Accused directed him to bring Rs.2000/- as first installment on 18.02.2015. Aggrieved thereby, complainant went to PS Vigilance and made a complaint regarding the demand of bribe.
He brought Rs.2000/- in the denomination of Rs.500/- each which was supposed to be used for the purpose of trap of accused. The pre raid proceedings and characteristic of phenolphthalein powder and sodium carbonate liquid was demonstrated to the complainant. Accordingly, raiding team was constituted comprising of some police official, panch witness and complainant. The panch witness was asked to give the signal as soon as the amount of bribe is demanded and accepted by the accused. The complainant had made a call to the accused on his mobile phone, he was called to come in his room at first floor of PS RK Puram. At 03.15 p.m. on demanding and accepting the bribe by accused, panch FIR NO. 7/15, CC No.154/19 State Vs. HC SurenderKumar Page 3/39 -:4:- witness made a signal and accused was apprehended by the raiding team at the spot. The treated GC notes wrapped in handkerchief recovered beneath the pillow in his room. After the completion of investigation, charge sheet was filed against him.
3). Formal charge of commission of offence punishable u/s 7 and u/s 13(1)(d) of PC Act and offence punishable u/s 13(2) of Prevention of Corruption Act, 1988 (hereinafter referred to as 'the PC Act') was framed against the accused to which he pleaded not guilty and claimed trial. Thereafter, amended charge was also framed again the accused on 26.02.2019.
4). In order to prove the charges against the accused prosecution has examined as many as 25 witnesses. The testimony of material witnesses out of the same is being reproduced here under in brief:-
4 (i). PW-1 ASI Kailash was the Duty officer in PS Vigilance Bara Khamba Road. He registered the FIR Ex.PW-1/A and also given the certificate u/s 65 B of Indian Evidence Act Ex.Pw-1/B and the FIR was marked FIR NO. 7/15, CC No.154/19 State Vs. HC SurenderKumar Page 4/39 -:5:- to Insp. Dharambir Gautam (PW-24). He also proved the DD entry no.13 dated 18.03.2015 Ex.PW-14/DA, DD No.20 and DD No.24 Dated 18.03.2015 PS Vigilance Ex.PW-24/I and Ex.PW-24/J. 4(ii). PW-2 Rajesh Kumar. He was the panch witness. A raiding team was constituted and apprehended the accused for the charges of bribe on the complaint of Krishan Kumar. He admitted his signature on documents i.e complaint Ex.Pw-2/B, pre and post raid proceeding Ex.PW-2/c and Ex.Pw2/D, seizure memo of GC notes is Ex.PW-2/E, seizure memo of LHW-I, HKW-I and personal search memo Ex.Pw-2/I. Bottle containing LHW-I and HKW-I i.e Ex.P1 and Ex.P2, the pullanda containing the handkerchief i.e Ex.P7.
4(iii). PW-4 Sh.Rajiv Vashisht, Nodal Officer, Airtel. He stated that mobile no. 9810256844 was issued in favour of accused Surender Yadav vide CAF Ex.PW-4/A. He further proved the CDR of the above said mobile number vide Ex.Pw-4/B and also gave the certificate u/s 65B Indian Evidence Act i.e Ex.Pw-4/C. FIR NO. 7/15, CC No.154/19 State Vs. HC SurenderKumar Page 5/39 -:6:- 4(iv). PW-6 Ct. Sikander Maan. He was posted as constable. He deposited the exhibits in FSL and collected the result of FSL alongwith exhibits. He also collected the CDR of mobile no. 8802044156 and 9810256844 alongwith certificate u/s 65B of Indian Evidence Act seized vide Ex.PW-6/B. CAF and CDR of mobile no. 9810256844 and 8802044156 is Ex.Pw-4/A, Ex.Pw-4/C, Ex.Pw-6/E, Ex.Pw-6/F. Forwarding letter is Ex.Pw-6/D and certificate u/s 65 B of 8802044156 is Ex.xPw-6/C. 4(v). PW-7 Prakash Saxena, Ex-Nodal officer AIRCEL. He stated that he provided the CAF and CDR of mobile no. 8802044156 registered in the name of Manju Nethani vide Ex.Pw-6/E and Ex.PW-6/F. He also proved certificate u/s 65 B of Indian Evidence Act is Ex.PW-6/C. 4(vi). Pw-8 Kamia Arora. She was working as HR in organization Lingvopedia Language solution Pvt. Ltd. In April 2015, a reference was received to provide a transcript of the conversation between Krishan and accused vide Ex.Pw-8/A. She provided the certificate of FIR NO. 7/15, CC No.154/19 State Vs. HC SurenderKumar Page 6/39 -:7:- authenticity Ex.Pw-8/B. 4(vii). PW-9 Santosh Tripathi. He was Sr. Scientific officer. This witness had examined the exhibits containing the hand wash and handkerchief wash. Report regarding the same is Ex.Pw-9/A. 4(viii). PW-12 Sh.V. Lakshmi Narasimhan. He was posted as Assistant Director Physic, FSL, Rohini. He received four sealed parcel at FSL containing one mobile phone, three audio cassette containing the voice of Krishan Kumar, Mukesh Kumar and Devender Kumar for examination. He gave his report in respect of analysis Ex.Pw-12/1.
4(ix). PW-13 Surender Singh. He used to work as cook in the south campus PS, South Delhi. He had identified his voice as well as voice of Krishan Kumar vide Ex.PW-8/8.
4(x). PW-14 ACP Anand Singh. He was the RO of the case, he constituted the raiding party and apprehended the accused while receiving the bribe from FIR NO. 7/15, CC No.154/19 State Vs. HC SurenderKumar Page 7/39 -:8:- complainant. He conducted the pre raid and post raid proceedings and made report thereof accordingly. He also witnessed the recovery of GC notes from the possession of accused. He deposed about the wash proceedings of the hand and handkerchief and its seizure carried out at the spot. He also proved the seizure memo of wash proceedings and GC notes.
4(xi). PW-17 Sh.S.K.Tiwari. He granted the prosecution sanction Ex.PW-17/A through forwarding letter Ex.Pw-17/B. 4(xii). PW19 Insp. Surender Kumar. He provided the Bio data Ex.Pw-19/A of accused to the IO.
4(xiii). PW-20 ASI Satish Kumar. He was posted as Reader of SHO, PS R.K.Puram. On 29.02.2016 he produced the record of the complaint of Manju Nethani before the IO which was marked to accused and the same was later on filed by accused on 09.11.2014 which was further endorsed by SHO, PS RK Puram and IO had seized the documents Ex.PW20/B vide seizure memo Ex.PW-20/A. FIR NO. 7/15, CC No.154/19 State Vs. HC SurenderKumar Page 8/39 -:9:- 4(xiv). PW-21 SI Shiv Kumar. He was posted as Malkhana Sub Inspector {MSI(M)} in VIU PS Vigilance. He proved the relevant entry of register no. 19 regarding the sealed pullandas. He also sent the exhibits to FSL Rohini through PW-15 HC KJ Joseph vide Ex.Pw-21/F and after depositing the same, HC K.J.Joseph handed over him the receipt vide Ex.PW-21/G. 4(xv). PW-22 Smt. Manju Nethani. She had given her government accommodation on the reference of her brother to complainant Krishan Kumar for 10-15 days. complainant did not vacate the same upon request on which she made a complaint to PS R.K.Puram against him on 30.10.2014 Ex.Pw-20/A. She further stated that the said complaint was marked to accused and who inquired the matter and also recorded her statement Ex.Pw-20/B. 4(xvi). PW-23 Insp. Neeraj Choudhary. He was posted as SHO, PS R.K.Puram. He proved the complaint of Manju Nethani Ex.PW-20/B vide DD Entry no.39B dated 30.10.2014 received in PS and the same was marked to accused HC Surender vide his FIR NO. 7/15, CC No.154/19 State Vs. HC SurenderKumar Page 9/39
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endorsement Ex.PW-20/B and he prepared the final report vide Ex.Pw-20/B. 4(xvii). PW-24 Inspector Dharambir Gautam. He is the IO in the present case. He was informed about the demand and acceptance of the bribe and handed over the custody of accused and the entire documents, case property to him for investigation by RO/Insp. Anand Singh.
He carried out the investigation and arrested the accused. He prepared the site plans at the instance of complainant and proved the arrest memo, personal search. He also recorded the statement of witnesses and obtained the prosecution sanction vide Ex.PW-17/A. He further stated that during investigation accused had refused to give his voice sample, statement of accused in this respect was recorded vide Ex.Pw-24/E and 24/F. He also proved the certificate of transcription in respect of conversation between accused and him as well as between complainant and Surender (cook) in ACP office seized by him vide Ex.Pw-24/G. He also identified the mobile phone of accused and cassettes containing the voice sample of Krishan Kumar, Devender, Mukesh is FIR NO. 7/15, CC No.154/19 State Vs. HC SurenderKumar Page 10/39
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Ex.Pw-6/A1, Ex.Pw-6/A2 and Ex.Pw-6/A3. He obtained the certificate in respect of land line number 26107510 installed in ACP Safdarjung Enclave office vide Ex.Pw- 24/H. He also collected the FSL result Ex.Pw-12/1. He also identified the case property 4(xviii). PW-25 Sh.Ajay Kumar. He is Sr. Scientific Officer, FSL Rohini. He analyzed the data contained in the SAMSUNG mobile phone and sim card of AIRCEL company and prepared his report vide Ex.Pw- 25/A.
5). In his statement u/s 313 Cr.PC accused has denied the incriminating material came up in evidence against him. He submitted that he has been falsely implicated in this case by the complainant. He was not seized with any matter against Krishan Kumar as on 18.03.2015. He submitted that one complaint was received against Krishan Kumar from his landlady Ms. Manju Nethani, which was disposed off and filed by him on 09.11.2014. He never demanded or accepted any money from any Krishan Kumar. He has been falsely arrested by Insp. Anand Singh and he saw Insp.FIR NO. 7/15, CC No.154/19 State Vs. HC SurenderKumar Page 11/39
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Dharambir Gautam for the first time at Vigilance office where he was taken by Insp. Anand Singh around 05.00 p.m. and thereafter was detained there. He further submitted that he has been falsely arrested by vigilance office for achieving its target of trapping maximum number of officials.
6). In his defence, accused has examined as many as 7 following witnesses:-
6(i). DW-1 ASI Vats Raj, DW-2 HC Subhash, DW-3 HC Ram Mehar, DW-4 ASI Surender Singh, DW-5 HC Nitesh, DW-6 Sh.Pawan Singh brought the record pertaining to involvement of complainant in several criminal cases.
6(ii). DW-7 Surender Kumar. He is Nodal officer, Bharti Airtel Ltd. He proved the Cell ID Chart. Tower location relating to incoming and outgoing call of mobile no. 9810256844 for the period 5.3.15 to 19.03.2015 vide Ex.DW7/A.
7). Arguments advanced by Sh.Girsh FIR NO. 7/15, CC No.154/19 State Vs. HC SurenderKumar Page 12/39
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Kumar Manhas, Ld.Addl.PP for the State and Sh. Sanjay Gupta, Ld. Counsel for the accused.
7(i). It is argued by Ld. Defence counsel that sanction accorded by PW-17 is in mechanical manner without due application of mind. The sanctioning authority has not perused the transcription and audio recording as same was not sent to him for perusal. The prosecution did not produce the complainant in the witness box to prove the initial demand and demand at the spot, hence complaint Ex.PW-2/B can not be read in evidence as complainant was not produce in the court. It is further submitted that on the one side, complainant has not been examined and on the other side PW-2 Rajesh Kumar, panch witness has not supported their case, demand and acceptance is not proved and mere recovery is of no help to the case of the prosecution to prove the guilt of the accused.
7(ii). It is further averred by Ld.Defence counsel that DD entry Ex.Pw-14/A is showing the departure time as 12.45 p.m. and as per RO the complainant made a call to the accused before the departure, whereas CDR FIR NO. 7/15, CC No.154/19 State Vs. HC SurenderKumar Page 13/39
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Ex.Pw-6/F does not show any call being made by the complainant to the accused before the departure. The transcription Ex.Pw-8/A is not proved as PW-24 has admitted that the same is not a transcription and he did not verify from Pw-8 about the source of recording.
7(iii). It is submitted that complainant of this case is a man of doubtful integrity as several criminal cases were registered against him.
7(iv). Ld.Defence counsel further argued that the FSL report is not admissible in evidence as FSL Rohini was not notified u/s 79-A of I.T.Act on the date of report as required u/s 79-A IT Act r/w Sec.5 & 45A of Evidence Act.
7(v). It is further submitted that recording in the present case is doubtful as PW-14 RO was not aware about such recording and the same was seized on the next day of trap i.e 19.3.2015. The recording remain unproved in the absence of complainant. The RO has used the seal of 'RRK' whereas IO has used the seal of 'RK ' whereas the name of RO is Insp. Anand Singh and FIR NO. 7/15, CC No.154/19 State Vs. HC SurenderKumar Page 14/39
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and IO is Insp. Dharambir Gautam. There is no explanation of use of such seal of other official. It is further argued that specimen voice of complainant cannot be read in evidence because he has not been brought before the court for identification of his sample voice. The sample voice was sent to FSL alongwith the transcription in order to disclose the identity of the speaker which make the same as inadmissible.
8). It is argued by Ld.Addl. PP that complainant and all the prosecution witnesses have supported the case of prosecution on all material aspect. The witnesses have corroborated each other as regards the demand and acceptance of bribe. Complainant has fully supported the case of prosecution. Complainant as well as prosecution witnesses have proved the relevant documents pertains to the investigation of this case.
9). In order to prove the charges against the accused, prosecution is required to prove that :-
(i) Whether Accused Surender Kumar was working as Head Constable in Delhi Police being a public servant.FIR NO. 7/15, CC No.154/19 State Vs. HC SurenderKumar Page 15/39
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ii) Whether there was any initial demand of Rs.10,000/- as bribe by accused from the complainant which was scaled down to Rs.7000/- and a liquor bottle of 100 piper?.
(iii) Whether the accused demanded sum of Rs.2,000/- as first installment of bribe at the time of raid?
(iv) Whether the accused consciously
accepted the bribe at the time of trap?
(v) Whether there was recovery of bribe
amount of Rs.2,000/- from the accused?
10). (i) Whether Accused Surender Kumar was working as Head Constable in Delhi Police being a public servant.
There is no dispute with respect to the fact that accused HC Surender Kumar being the public servant was serving as a HC in Delhi Police. Pw-19 Inspector Surender Kumar has proved the bio data of the accused in this regard as Ex.Pw-19/A.
11). ii) Whether there was any initial demand of Rs.10,000/- as bribe by accused from the complainant which was scaled down to FIR NO. 7/15, CC No.154/19 State Vs. HC SurenderKumar Page 16/39
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Rs.7000/- and a liquor bottle of 100 piper?.
According to the case of prosecution, the case was registered on the complaint of one Krishan Kumar who alleged that accused HC Surender Kumar who was posted in PS RK Puram made a telephonic call to him and informed him that his landlady Smt. Manju Nathani had made a complaint against him. In their meeting on 13.03.2015, accused demanded a sum of Rs.10,000/- from him in order to save him from any adverse action. The deal was negotiated and settled for the payment of Rs.7000/- and a liquor bottle of 100 piper, complainant requested him to make the payment of bribe in two installment of Rs.2000/- and Rs.5000/-. The first installments of Rs.2000/- was to be paid on 18.03.2015. A complaint accordingly was made by the complainant to the ACB. In order to prove the factum of initial demand of bribe by the accused the most material evidence was the statement of complainant himself. Since this negotiation was taken place between him and the accused. However in his complaint, complainant had named Const.Mukesh also who helped them in negotiating the amount and scaling it down from Rs.10,000/- to Rs.7000/-. Complaint FIR NO. 7/15, CC No.154/19 State Vs. HC SurenderKumar Page 17/39
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Ex.Pw-2/B in this case was registered on 18.03.2015 which is a statement of complainant Krishan Kumar recorded by the IO. The registration of this complaint is established by PW-14 Inspector Anand Singh. During the investigation it was revealed that complainant Krishan Kumar was using mobile phone bearing no.9802044156 and he made calls to the mobile no. 9810256844 of the accused, and the telephonic conversation taken place on 17.03.2015 and 18.03.2015 between them was recorded by complainant in his mobile phone.
Therefore, in order to prove the factum of initial demand, prosecution is having two evidence, one is the complainant himself and other is the telephonic and recorded conversation between him and accused HC Surender Kumar. The transcriptions of recorded conversation on mobile phones on 15.03.2015, 16.03.2015, 17.03.2015 and 18.03.2015 are collectively exhibited as Ex.Pw-8/A. The complainant in this case, remained untraceable despite issuance of repeated summons and directions. A detailed report to his not traceability was filed by the IO Insp. Dharambir Gautam and his statement was recorded in this regard and he FIR NO. 7/15, CC No.154/19 State Vs. HC SurenderKumar Page 18/39
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stated that complainant is not residing at his Delhi address as well as his native place and his whereabouts are not known for last 8-9 years. The report of IO in this regard as been exhibited as Ex.CW-1/1 and the statements of persons of locality are Ex.CW1/2 to Ex.CW1/4. In this manner the most important witness of prosecution I.e complainant could not be traced out in order to give his testimony to prove his complaint and to prove that there was an initial demand of Rs.10,000/- which was scaled down to Rs.7000/- and a liquor bottle of 100 piper as bribe by the accused from him.
Now it is to be seen whether the recorded mobile conversation is an admissible piece of evidence for the purpose of proving the factum of initial demand of bribe by the accused.
12). (iii) Whether the accused demanded sum of Rs.2,000/- as first installment of bribe at the time of raid?
As per the case of prosecution the complainant came to the office of the ACB with a complaint against the accused of demand of bribe of FIR NO. 7/15, CC No.154/19 State Vs. HC SurenderKumar Page 19/39
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Rs.7000/- vide his complaint / statement Ex.PW-2/B on 18.03.2015. PW-14 ACP Anand Singh was posted as Inspector recorded the same in the presence of panch witness PW-2 Rajesh Kumar. On verification of the fact of the complaint and the production of Rs. 2000/- in the denomination of Rs.500x 4 the pre raid proceedings were carried out by him vide Ex.PW-2/C. In pre raid proceeding the phenolphthalein powder was applied on the notes and the right hand of the panch witness was touched on the said notes. His hand wash was taken in sodium carbonate solution. During the said demonstration the complainant as well as panch witness was informed that any body who touches these notes or keep the same at any place, the hand wash of that person or that thing would turn into pink upon washing with sodium carbonate solution.
Accordingly, the treated G.C notes were handed over to the complainant. The complainant and panch witness were directed to remain together so that panch witness could hear and see the conversation regarding the demand and delivery of bribe money. The complainant was further directed to hand over the money only upon demand by the accused and panch witness FIR NO. 7/15, CC No.154/19 State Vs. HC SurenderKumar Page 20/39
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was directed to give a signal upon demand and acceptance of the bribe money.
At 01.45 pm. when the raiding team reached near Hyatt Hotel, the complainant was asked to call complainant on his mobile. The complainant in the presence of panch witness made a call to the accused who asked them to come at his office i.e 1st floor of PS RK Puram. The proceeding in this regard is proved by the witness as Ex.Pw-2/C. As per the testimony of PW-14 ACP Anand Singh (RO) the raiding team reached at PS RK Puram at 03.00 p.m. The vehicle were parked at PS RK Puram at safe distance, complainant and panch witness were accordingly briefed. At about 5-10 minutes the panch witness signaled towards him by roaming his hand over his head from the window of accused. PW-14 RO alongwith the raiding team entered the room of the accused found panch witness and complainant there, panch witness told him that accused had obtained Rs.
2000/- form complainant and had put the same beneath the pillow. Accordingly, at the instance of panch witness, FIR NO. 7/15, CC No.154/19 State Vs. HC SurenderKumar Page 21/39
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the GC notes of Rs.2000/- wrapped in white handkerchief was recovered under the pillow.
Left hand wash of the accused was taken in sodium carbonate solution which turned into pink and the bottles of this hand wash was labeled as LHW-I and similarly the wash of handkerchief was also taken the same was also turned into sodium carbonate solution and labeled as HKW-I. The seizure memo in this regard is Ew.PW-2/F, Ew.PW-2/G and Ew.PW-2/H. Post raid proceedings in this regard was prepared and the same has been exhibited as Ex.Pw-2/D.
13). In order to prove the factum of pre raid and post raid, the complainant and panch witness PW-2 are the vital witness from the side of the prosecution as it has already been observed that the complainant could not be examined as remained untraceable despite best efforts.
Therefore the testimony of PW-2 is vital for the case of prosecution to prove the pre raid proceeding and the post raid proceeding as this witness remained with the complainant from the filing of the complaint till the completion of the post raid proceedings.
FIR NO. 7/15, CC No.154/19 State Vs. HC SurenderKumar Page 22/39- : 23 : -
In his testimony Pw-2 has stated that Insp. At ACB office had told him to join the proceeding as a complaint has been received. Thereafter, a team consisting of 10-12 persons were formed, they all proceeded to PS RK Puram in 3-4 vehicles. He further deposed that the vehicles were parked at PS RK Puram and inspector had went inside the PS alongwith 2-3 persons and he remained present in the vehicles parked outside the PS. After 10-15 minutes, one person came out from PS and called him to upstairs. When he reached upstairs inside the PS, he found that one police official was caught hold by two persons and they informed him that he is the person who had demanded the bribe. He further stated that "I cannot recognize the person who was caught hold for the charges of bribe". In his chief examination the witness has not supported the case of prosecution and even he has not identified the accused being the person who allegedly apprehended on the charges of demand of bribe.
In his cross examination, by Ld. Addl. PP he stated that his statement was recorded by police official of Vigilance branch, however he had signed the documents.FIR NO. 7/15, CC No.154/19 State Vs. HC SurenderKumar Page 23/39
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He further stated that it was signed in PS but he had not gone through the said documents which was signed. He also denied the recording of his statement. He has denied the recording of statement of complainant Krishan Kumar in his presence by Insp. Anand Singh. He further denied that complainant Krishan Kumar told anything about demand of bribe by the accused in his presence. He also denied any pre raid demonstration given to him and further denied that any instructions were given by the RO to give a signal on demand and receipt of the bribe. He further denied that he went inside the PS and in the room of the accused and he made a demand of bribe of Rs.2000/- from the complainant and on the demand of the accused the complainant handed over the bribe money to the accused. He further denied the recovery of GC notes wrapped in handkerchief beneath the pillow in the room of accused.
In this manner the panch witness (PW-2) has not supported the case of prosecution on any material aspect in order to prove that there was a demand and acceptance of bribe by the accused in his presence. The other important witness who was complainant himself FIR NO. 7/15, CC No.154/19 State Vs. HC SurenderKumar Page 24/39
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could not be examined as remained untraceable. In these circumstances, the testimony of police official and RO is left in order to prove the case of prosecution. But in order to prove the commission of offence the prosecution was required to prove the demand and acceptance of bribe by the accused beyond reasonable doubt. The testimony of police officials are required corroboration when PW-2 turned totally hostile.
Now, the other vital piece of evidence which has been produced by the prosecution is the recorded telephonic conversation and recorded conversation prior to raid and during the raid.
14). Now it is to be seen whether these recorded conversation are sufficient to prove the initial demand and the demand and acceptance during the trap.
In this case, the mobile conversation between complainant' and accused has been recorded by the complainant in his mobile phone. These recordings are pertains to the initial demand and negotiation between him and the accused on mobile phone. There is one more FIR NO. 7/15, CC No.154/19 State Vs. HC SurenderKumar Page 25/39
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recording in the mobile phone of the complainant which was recorded by him at the time of the trap, in order to show the demand and acceptance of bribe by the accused during the trap. These recorded conversation are exhibited as Ex.Pw-8/A (colly.) In order to prove the recorded conversation on the mobile phone prosecution has examined PW-4 Rajiv Vashisht Nodal Officer, AIRTEL Ltd. who has brought the original CAF No. 9810256844 which was being used by the accused. The CAF is Ex.Pw-4/A. He has proved the CDR of the mobile phone of accused at 5.3.2015 to 19.3.2015 and the CDR is Ex.PW-4/B. PW-6 constable Sikander Mann has been examined, to prove the voice sample at FSL of complainant Krishan Kumar, Ct.Mukesh and Const. Devender was taken in three audio cassettes and he deposited the original cassette in malkhana. This witness has also deposed that this witness has refused to provide his voice sample. The sample voice as per his testimony was recorded in a sound proof room and he alongwith panch witness were present there. PW-12 V.Laxmi Narsimhan Assistant Director FSL has been examined FIR NO. 7/15, CC No.154/19 State Vs. HC SurenderKumar Page 26/39
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and he has proved the FSL report as Ex.Pw-12/1. This expert witness has examined the voice recording contained in audio cassette Ex.1, Ex.2, Ex.3, Ex.4. On examination it has been opined that the voice of speaker, Mark "Ex.-Q1 and Ex.-S1" are the voice of same person (i.e Mr.Krishan Kumar)" and it is further opined that there is no indication of any form of alteration in the relevant audio files in mobile of Ex.1.
15). It has been held by Hon'ble Supreme Court in N.Shrirama Reddy Vs. V.V., Giri AIR 1971 SCC 1162 held that "like any document the tape record itself was primary and direct evidence admissible of what has been said and picked up by the receiver". In R.K.Malkhani Vs. State of Maharashtra, AIR 1973 SC157 Hon'ble Supreme Court has held that "when a court permits to tape recording to be played over it is acting on real evidence if it treats the information of the words to be relevant and genuine.
16). In the case of Ziyauddin Burhaniddin Bukhari Vs. Brijmohan Ram Das Mehta AIR 1975 SC 1788 Hon'ble Supreme Court has held that "the use of FIR NO. 7/15, CC No.154/19 State Vs. HC SurenderKumar Page 27/39
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tape recorded conversation was not confined to purpose of corroboration and contradiction only, but when duly proved by satisfactory evidence of what was found recorded and of absence of tampering, it could, it could subject to the provision of Evidence Act be used as substance evidence. In Ram Singh & Ors. Vs. Col.Ram Singh 1986 AIR, 3 1985 SCR Supl. (2) 399 Hon'ble Supreme Court has held that "
(Emphasis supplied) In Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra & Ors., [19751 Supp. S.C.R. 281, Beg,J. (as he then was, made the following observations:
"We think that the High Court was quite right in holding that the tape records of speeches were "documents", as defined by Section 3 of the Evidence Act, which stood on no different footing than photographs, and that they were admissible in evidence on satisfying the following conditions:
(a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who knew it.
(b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, DIRECT or circumstances, had to be there 80 as to rule out possibilities of tampering with the record.
(c) The subject matter recorded had to be shown to be relevant according to rules of relevancy found in the FIR NO. 7/15, CC No.154/19 State Vs. HC SurenderKumar Page 28/39
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evidence Act." (Ephes ours) Thus, so far as this Court is concerned the conditions for admissibility of a tape recorded statement may be stated as follows:
(1) The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice.
In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strick proof to determine whether or not it was really the voice of the speaker.
(2) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence - direct or circumstantial. (3) Every possibility of tampering with or erasure of a part of a tape recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.
(4) The statement must be relevant according to the rules of Evidence Act.
(5) The recorded cassette must be carefully sealed and kept in safe or official custody. (6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances.
The view taken by this Court on the question of admissibility of tape recorded evidence finds full support from both English and American authorities. In R. v. Maqsud Ali, [1965] All. E.R. 464., Marshall, J., observed thus:- C "We can see no difference in principle between a tape recording and a photograph. In saying this we must not be taken as saying that such recordings are FIR NO. 7/15, CC No.154/19 State Vs. HC SurenderKumar Page 29/39
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admissible whatever the circumstances, but it does appear to this court wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved and the voices recorded properly identified; provided also that the evidence is relevant and otherwise admissible, we are satisfied that a tape recording is admissible in evidence. Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case. There can be no question of laying down any exhaustive set of rules by which the admissibility of such evidence should be judged."
17). In the present case, so far as the compliance of first condition that the voice of speaker must be duly identified by the maker of the record or by others who recognize his voice the witnesses examined by the prosecution i.e PW-6 has stated that in his presence the specimen voice of complainant Krishan Kumar was recorded and he has further stated that the complainant Krishan Kumar accompanied the IO from PS Vigilance and IO made entry at the reception about his arrival. His testimony is further corroborated by PW-15 ASI KJ Joseph who stated that the voice sample of Krishan Kumar was recorded by the expert and cassettes were FIR NO. 7/15, CC No.154/19 State Vs. HC SurenderKumar Page 30/39
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accordingly prepared and he also signed the cassettes. He further deposed that three respective cassettes were put in different envelope and sealed with seal of RK with marking of S1, S2 and S3 are Ex.Pw-15/A, Ex.PW-15/B, Ex.PW-15/C. S1 is the voice sample of Krishan Kumar. The seizure memo with respect to the same is Ex.PW- 6/A. The complainant was the same person who has been identified by the witnesses being the person whose voice sample was taken at the FSL Rohini.
The expert witness PW-12 vide his report Ex.Pw-12/1 has stated that the parcel 1 which was containing a mobile phone and according to the files contained in the same, the speaker mark as Q1 is the same person who has given sample voice i.e S1. Ex.S1 is the voice of Krishan Kumar and voice Ex.Q1 is also the voice of complainant Krishan Kumar.
No doubt that PW-12 in his report has opined that the voice contained in the mobile recordings, audio recordings and the sample voice is of the same person i.e Krishan Kumar the complainant of this case. This expert is not the person who personally knows the complainant or have seen him speaking. He has merely given his FIR NO. 7/15, CC No.154/19 State Vs. HC SurenderKumar Page 31/39
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opinion with respect to the voice contained in different formats. In order to establish the identity of complainant, either the complainant should have been brought in the witness box or some independent witness should have been examined in order to prove that the voice contained in the audio recording are of the complainant. Pw-15 has stated that voice sample of Krishan Kumar was taken. He has only stated the taking of voice sample of Krishan Kumar but he has not seen the Krishan Kumar as the person who recorded the conversation in his mobile phone. He is also not the competent witness to know that this is the voice of the Krishan Kumar who came in the FSL. As per the judgment of Ram Singh & Ors. Vs. Col. Ram Singh, the person who recognize the voice or the maker of record of the conversation can identify the voice of a particular person. Here in this case, the recordings were not prepared by any of the police official. Infact it were recorded by the complainant himself in his mobile phone. In his testimony IO has stated that he was not aware that complainant was recording the trap proceeding in his mobile phone. After the day of raid the complainant came to him and produced the recording to him. Then only he came to know that the conversation has been FIR NO. 7/15, CC No.154/19 State Vs. HC SurenderKumar Page 32/39
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recorded. For the purpose of recognizing the voice of complainant, PW-13 Surender Kumar has been examined. He stated in his testimony that he known Krishan Kumar as once he met him in the PS and he had talked with him on the mobile phone. From his testimony it is transpired that complainant has not been a regular visitor to him and he at the most can identify the voice of complainant with respect to the conversation taken place between him and complainant. So far as the other recordings which allegedly containing the voice of complainant and the accused this witness is not a party therefore, to identify the voice of the complainant this witness is of no use. Prosecution was required to bring such witness who was in regular touch with the complainant and has seen him speaking in the same way as recorded in the recorded conversation. But there is not such witness available.
Apart from this, no witness has been cited from the FSL who had recorded the sample voice of the complainant. The panch witness is not there being the independent witness to see the recording of voice sample by the complainant himself. This fact also create doubt FIR NO. 7/15, CC No.154/19 State Vs. HC SurenderKumar Page 33/39
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about the veracity of the claim of prosecution as to the identity of the voice of complainant.
18). Strict proof of identity of voice of complainant is become more important as, it has been argued by ld.
Defence counsel that the complainant has been a person of doubtful integrity and several complaint cases has been registered against him. As per charge sheet he has been declared Proclaimed offender (PO) and he forged documents of his landlady for obtaining telephone connection. A number of cases has been registered against complainant vide FIR Ex.DW1/A, Ex.DW1/B, Ex.DW1/2A, Ex.DW2/B, Ex.DW4/A, Ex.DW 5/A. Prosecution has examined Pw-22 Manju Nathani. She has given her flat to complainant Krishan Kumar for reside for some period of time and she made a complaint in this regard against him. Moreover, PW-7 Sh. Prakash Saxena, Ex. Nodal Officer, AIRCEL has been examined by the prosecution in order to prove the ownership of mobile no. 8802044156. This mobile phone purported to be of complainant same was also used for the purpose of recording the conversation between the complainant and the accused. This witness has produced FIR NO. 7/15, CC No.154/19 State Vs. HC SurenderKumar Page 34/39
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the CAF form and deposed that the mobile phone was registered in the name of Manju Nathani. The complainant instead of using the mobile phone registered in his own name, he was using the number which was registered in the name of Manju Nathani against whom PW-22 Manju Nathani had lodged a complaint in the PS. Intention of complainant in such circumstances is become doubtful. In his testimony, PW-24 Dharambir Gautam, IO of this case, in his cross examination admitted that it was revealed to him during investigating that complainant and his wife forged document of Manju Nathani for obtaining mobile connection. Moreover, the defence witnesses DW-1 DW2, DW3 DW4, DW5 has proved the registration of several cases against the complainant. In these circumstances, the complainant does not appears to be a person of good moral character and bears a doubtful integrity. Therefore, in the absence of clear and impeccable evidence with respect to his identity reliance cannot be placed upon his voice contained in the recorded conversation. The personal appearance of the complainant in such circumstances is also become inevitable. In order to prove the facts of this case, and also to dislodge the material cropped up against his integrity. Therefore, first condition FIR NO. 7/15, CC No.154/19 State Vs. HC SurenderKumar Page 35/39
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propounded in the judgment of Ram Singh & Ors. Vs. Col. Ram Singh of Hon'ble Supreme Court is not fulfilled. Therefore, despite the fact that PW-12 has opined that there is no tampering in the voice sample and the mobile recording, same cannot be considered as sufficient and reliable evidence for the purpose of proving the commission of offence against the accused.
19). Despite the fact that there is refusal by the accused in giving his voice sample an adverse inference against him cannot be drawn as the main witnesses in this case has not supported the case of the prosecution and the evidence produced in support is insufficient to prove the guilt of the accused.
20). (iv) Whether the accused consciously accepted the bribe at the time of trap?
(v) Whether there was recovery of bribe amount of Rs.2,000/- from the accused?
It is submitted by Ld. Addl. PP that the RO and the member of the raiding team has deposed that Rs.2,000/- GC notes wrapped in a handkerchief was recovered beneath the pillow of the accused. His hand FIR NO. 7/15, CC No.154/19 State Vs. HC SurenderKumar Page 36/39
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wash was taken alongwith the wash of the handkerchief. The washes has been proved by the FSL expert, therefore a presumption u/s 20 of PC Act should be drawn to convict the accused. On this, I am of the view that the raid has not been proved as complainant has not been examined. Panch witness turned hostile and the voice recording not able to establish the identity of complainant. Therefore, proceedings of recovery conducted by police official remain uncorroborated. Mere recovery of the amount is not sufficient. Demand and acceptance of bribe at the time of raid is also required to be proved in order to draw presumption u/s 20 of PC Act.
21). In view of above discussion, therefore it is not proved that accused has consciously accepted any bribe at the time of trap. The recovery of bribe amount of Rs.2000/- is also not established in the want of sufficient evidence.
22). Therefore prosecution has failed to prove beyond reasonable doubt the factum of initial demand of bribe by accused. It is also not proved that accused demanded and accepted bribe during the raid. It is also not proved that there is an conscious acceptance of bribe FIR NO. 7/15, CC No.154/19 State Vs. HC SurenderKumar Page 37/39
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at the time of trap. Prosecution has failed to prove the demand and acceptance of the bribe.
23). In view of the aforesaid discussion, the prosecution has miserably failed to establish charges u/s 7/13(1)(d) of PC Act against the accused. Hence the accused is acquitted. Accused is directed to furnish bail bond u/s 437-A Cr.PC.
File be consigned to record room.
Announced in open court (SANJAY KHANAGWAL) on 30th day of Sept. 2019 Spl.Judge(PC ACT)-02 ACB/Rouse Avenue Courts Delhi FIR NO. 7/15, CC No.154/19 State Vs. HC SurenderKumar Page 38/39
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FIR No.7/15PS: Vigilance State vs. HC Surender Singh CC No.154/19 30.09.2019 Present: Sh.Maqsood Ahmed, Ld. Addl. PP for the State.
Sh.Raj Kamal Arya, Counsel for accused with accused.
Vide separate judgment announced in open court, prosecution has failed to establish the charges u/s 7/13(1)(d) of PC Act against the accused. Hence the accused is acquitted. Accused is directed to furnish bail bond u/s 437-A Cr.PC. Bail bond furnished and accepted.
File be consigned to record room.
(SANJAY KHANAGWAL) Spl. Judge (PC ACT)-02/(ACB) Rouse Avenue Court/Delhi 30.09.2019 FIR NO. 7/15, CC No.154/19 State Vs. HC SurenderKumar Page 39/39