Bombay High Court
Shyam Bahadur Singh vs The Union Of India on 2 December, 2022
Author: R.G. Avachat
Bench: R.G. Avachat
Cri. Appeal Nos.481 and 544 of 2018.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.481 OF 2018
Shyam Bahadur Singh,
Age : 54 years, Occ. RPF Sub-Inspector,
r/o. Railway Protection Force,
Chalisgaon ..Appellant
Vs.
The Union of India,
Through Police Inspector,
Central Bureau of Investigation (A.C.B.),
Mumbai ..Respondent
AND
CRIMINAL APPEAL NO.544 OF 2018
Sanjeev s/o. Baburao Handore,
died, Through L.Rs.-
1. Suman Sanjay Handore,
Age : 42 years, Occ. Household,
2. Pratik Sanjay Handore,
Age : 20 years, Occ. Education,
3. Sneha Sanjay Handore,
Age :24 years, Occ. Education
All r/o. Mitra Type, Railway Colony,
Chalisgaon, Tq. Chalisgaon,
Dist. Jalgaon ..Appellants
Vs.
The Union of India,
Through Police Inspector,
Central Bureau of Investigation (A.C.B.),
Mumbai ..Respondent
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2 Cri. Appeal Nos.481 and 544 of 2018
Mr.K.C.Sant, Advocate for appellant in Cri. Appeal No.481 of 2018
Mr.V.R.Dhorde, Advocate for appellant in Cri. Appeal No.544 of 2018
Mr.A.G.Talhar, A.S.G. for respondent
----
CORAM : R.G. AVACHAT, J.
RESERVED ON : MAY 04, 2022
PRONOUNCED ON : DECEMBER 02, 2022
JUDGMENT :-
Both these appeals from conviction are being decided by this common judgment, since the challenge therein is to the order of conviction and sentence dated 05.07.2018 passed by learned Addl.
Sessions Judge, Jalgaon, in Special C.B.I. (A.C.B.) Case No.9 of 2014. Vide the impugned judgment and order, the appellants have been convicted and consequentially sentenced, as stated below:-
Criminal Name of appellant Section Sentence of Appeal No. imprisonment R.I. for 3 years and Section 7 of P.C. fine of Rs.1,000/-, in Act default, S.I. for 1 month Shyam Bahadur Singh (orig. accused no.1) R.I. for 4 years and 481 of 2018 fine of Rs.1,000/-, in Section 13(1)(d) default, S.I. for 1 r/w. Sec.13(2) of month P.C. Act (Both the sentences to run concurrently) Sanjeev s/o. Baburao Handore, orig. accused R.I. for 3 years and no.2, Section 12 of P.C. fine of Rs.500/-, in 544 of 2018 (died, Through L.Rs.- Act default, S.I. for 1
1. Suman Sanjay month Handore and ors.) ::: Uploaded on - 26/12/2022 ::: Downloaded on - 06/01/2023 16:25:36 ::: 3 Cri. Appeal Nos.481 and 544 of 2018
2. Pending the appeal, the appellant/original accused no.2 -
Sanjeev s/o. Baburao Handore passed away. The appeal has been pursued by his legal representatives.
3. For the sake of convenience, the appellants are herein-
after referred to as appellant no.1 and appellant no.2 (i.e. appellants in Criminal Appeal Nos.481 of 2018 and 544 of 2018, respectively).
4. The facts of the prosecution case, in a nutshell, are as under:-
PW 2 - Ashpak Khan (complainant) was a Tea vendor. He would sell Tea in train, Mahanagari Express, between Jalgaon and Manmad stations. He was to attend marriage of one of his relations on 09.03.2014. He had, therefore, given his Tea thermos to his friend, Amjad Khan, for sale of Tea in Mahanagari Express. Appellant no.1 was Sub-Inspector in Railway Protection Force (R.P.F.), Chalisgaon. He arrested Amjad Khan and four others for unauthorised sale of Tea and eatables in the train. The complainant stood surety for Amjad Khan. Appellant no.1, that time, had taken the complainant's Identity card. The thermos was also seized. Appellant no.1 had passed on a message to the complainant through one Rahul, asking to pay him (appellant no.1) Rs.1,000/- as Hafta ::: Uploaded on - 26/12/2022 ::: Downloaded on - 06/01/2023 16:25:36 ::: 4 Cri. Appeal Nos.481 and 544 of 2018 for doing his business (Tea vending) smoothly. The complainant met appellant no.1 at R.P.F. police station, Chalisgaon, on 01.04.2014. He showed him receipt of payment of fine by Amjad Khan. Appellant no.1 was requested to return his thermos. He, in turn, asked the complainant to pay him a sum of Rs.1,000/- per month and for return of thermos as well.
5. Since the complainant did not want to pay illegal gratification to appellant no.1, he contacted Anti Corruption Bureau (A.C.B.) of Central Bureau of Investigation (C.B.I.), Mumbai, on 07.04.2014. The officer of the A.C.B. asked the complainant to remain present at Government Guest House, Chalisgaon, on the following day. Accordingly, he went there. Police Inspector, Shri. Mhadgut (PW 18 - Investigating Officer) and other staff of C.B.I. had already been present there. Presence of two officials of Bharat Sanchar Nigam Limited (B.S.N.L.) was secured to act as panch witnesses. The complainant submitted complaint in writing (Exh.49).
6. PW 18 - Shri.Mhadgut decided first to verify the demand of illegal gratification. A new memory card was inserted in digital voice recorder. The complainant made a phone call to appellant no.1 ::: Uploaded on - 26/12/2022 ::: Downloaded on - 06/01/2023 16:25:36 ::: 5 Cri. Appeal Nos.481 and 544 of 2018 and talked with him in relation to return of his thermos. Appellant no.1 asked him to come to his office in the evening. The conversation between the complainant and appellant no.1 came to be recorded in the voice recorder. Transcript thereof was prepared.
On the following day, the complainant accompanied by shadow witness (PW 3 - Shri.P.M.Patil) went to appellant no.1's office. As planned, the memory card with Digital Voice Recorder (D.V.R.) was with the complainant. The complainant had again talked with appellant no.1. The complainant asked to come with money. Both complainant and the shadow witness returned. A panchnama of the happenings was drawn (Exh.57).
7. Again, the complainant and the shadow witness (PW 3) together went to appellant no.1. As planned, the D.V.R. was put on switched on mode on the person of the complainant. The talk between the complainant and appellant no.1 took place. Appellant no.1 inquired with the complainant, as to whether he has brought money. He asked the complainant to pay Rs.100/- to Fakir (original accused no.3), R.P.F. Head Constable. Appellant no.1 then asked the complainant to pay the balance amount to a person sporting yellow T-shirt, who was present on platform no.3. The complainant paid ::: Uploaded on - 26/12/2022 ::: Downloaded on - 06/01/2023 16:25:36 ::: 6 Cri. Appeal Nos.481 and 544 of 2018 Fakir the a sum of Rs.100/- and received his thermos. The complainant then went to platform no.3. He gave the sum of Rs.1,400/- (smeared with anthracene powder) to the person sporting yellow T-shirt. He was Nasir Mirza, original accused no.4.
He counted the currency notes. Another Head Constable, Sanjeev Handore (appellant no.2) was present with Nasir Mirza. Appellant no.2 took that amount from Nasir. He made a phone call to someone and informed to have received the amount from a person from Jalgaon. Some conversation took placed between the three.
The same has been recorded in the memory card. Appellant no.2 asked the complainant to pay a sum of Rs.300/- per month in addition to the amount to be paid to appellant no.1. The complainant gave a pre-determined signal. The C.B.I. officers arrived in no time. The bribe money came to be recovered. A panchnama in that regard was drawn. All the four, including the appellants, involved in the crime, came to be arrested.
8. The voice samples of the appellants were obtained.
Transcript of the tape recorded conversation came to be prepared separately in the presence of panchas. The voice samples along with the memory card containing recorded conversation, came to be ::: Uploaded on - 26/12/2022 ::: Downloaded on - 06/01/2023 16:25:36 ::: 7 Cri. Appeal Nos.481 and 544 of 2018 submitted to the Forensic Science Laboratory (F.S.L.) for analysis and report. Statements of the persons acquainted with the facts and circumstances of the case, were recorded. All the papers of investigation were submitted to the concerned authorities of R.P.F. for obtaining sanction for prosecution of the appellants and original accused no.3 - Fakir. The authorities concerned, in turn, granted sanction. The appellants and original accused nos.3 and 4 came to be proceeded against by filing charge-sheet.
9. The trial Court framed the charge (Exh.28). The prosecution examined twenty witnesses to bring home the guilt.
The trial Court, on appreciation of the evidence in the case, convicted the appellants, as stated above. Original Accused no.3 -
Fakir and Nasir Mirza were acquitted. The C.B.I. has not preferred appeal against their acquittal.
10. Learned counsel for the appellants would submit that the sanctions accorded by the competent authorities for the appellants' prosecution have not been duly proved. There was non-application of mind in granting the sanctions. Learned counsel took me through the evidence of the complainant to submit that he was an unreliable witness. The conversation recorded during demand verification ::: Uploaded on - 26/12/2022 ::: Downloaded on - 06/01/2023 16:25:36 ::: 8 Cri. Appeal Nos.481 and 544 of 2018 would, undoubtedly, indicate appellant no.1 to have not made a demand of bribe. The investigating officer, therefore, ought not to have gone ahead. The complainant was bent upon to see appellant no.1 is trapped in the dragnet. The shadow witness (P.W. 3) was not in the company of the complainant when the exercise took place. He kept himself away, whereby he could not hear the talk between the complainant and appellant no.1. According to learned counsel, the evidence of the complainant is in the nature of the evidence of an accomplice. There was no evidence to indicate appellant no.1 to have voluntarily made demand for illegal gratification. He did not receive the bribe money. Presumption under Section 20 of the P.C. Act, therefore, does not get attracted. Learned counsel, ultimately, urged for allowing the appeals. He relied on certain judgments of the Apex Court and this Court as well.
11. Learned Assistant Solicitor General (A.S.G.) for respondent - C.B.I. would, on the other hand, submit that trial Court has passed a well reasoned judgment. Entire conversation between appellant No.1 and the complainant has been recorded. The same has been duly proved. On going through the conversation, the only inference that could be drawn, was that appellant no.1 had made a ::: Uploaded on - 26/12/2022 ::: Downloaded on - 06/01/2023 16:25:36 ::: 9 Cri. Appeal Nos.481 and 544 of 2018 demand of illegal gratification and received the same through his subordinate. Learned A.S.G. submitted summary of his submissions, which is nothing but the relevant evidence of the prosecution witnesses. He, ultimately, urged for dismissal of the appeals.
12. Although the prosecution examined number of witnesses and produced in evidence certain documents, for deciding the present appeals, relevant evidence would be that of the complainant, shadow witness and the Investigating Officer. A brief reference to the evidence of other witnesses, however, needs to be made here itself, before adverting the evidence of these three witnesses.
13. PW 1 - Chandramohan Mishra was the competent authority to accord sanction for prosecution of appellant no.2. His evidence would suggest that he accorded sanction (Exh.39) on perusal of all the papers of investigation submitted to him for that purpose. The authority competent to accord sanction for prosecution of appellant no.1, was not alive when the trial commenced. The said sanction (Exh.235) came to be admitted in evidence on the basis of evidence of PW 20 - Rajesh, who identified the signature of the said sanctioning authority. Perusal of both the sanction orders would, ::: Uploaded on - 26/12/2022 ::: Downloaded on - 06/01/2023 16:25:36 ::: 10 Cri. Appeal Nos.481 and 544 of 2018 undoubtedly, suggest the authorities concerned to have had gone through the police papers and then accorded the sanctions.
14. PW 4 - Amjad, who was asked to vend Tea in the train on the given day, did not stand by the prosecution. The case is a fall out of he having been charged for having sold Tea unauthorisdely.
PW 5 - Rahul, who, according to the prosecution, had passed a message of appellant no.1 to the complainant, to pay a sum of Rs.1,000/- to appellant no.1, also did not stand by the prosecution.
PW 6 - Govind was a Sub-Inspector of R.P.F., Jalgaon, at the relevant time. He gave copies of the charge-sheets filed against PW 4 - Amjad and others two for unauthorised sale of Tea and eatables in the train. During cross-examination, this witness testified that the complainant was a habitual criminal. Appellant No.1 had filed number of cases against the complainant for unauthorised sale of tea in the train.
15. PW 7 - Amit, PW 8 - Vijay and PW 9 - Yogesh were Nodal Officers of the cellular companies. These witnesses produced in evidence Call Data Record ('C.D.R.') and other details. The C.D.Rs. have been supported with certificate under Section 65-B of the Evidence Act. Evidence of PW 9 - Yogesh, undoubtedly, suggests ::: Uploaded on - 26/12/2022 ::: Downloaded on - 06/01/2023 16:25:36 ::: 11 Cri. Appeal Nos.481 and 544 of 2018 that cell phone no.9860276892, was issued in the name of Appellant No.1. PW 10 - Mahadeo and PW 11 - Manoj would sell eatables in the train. These two witnesses did not stand by the prosecution.
There is also evidence of the R.P.F. authorities, P.W.12 - Deepak and P.W. 13 - Santosh, to show that on the given day, both the appellants were on duty.
16. PW 14 - Gangaram was the R.P.F. Constable during the relevant time. His evidence is to the effect that he identified the voice of both the appellants and Fakir (original accused no.3). PW 15
- Amitosh was an expert in voice identification. His evidence suggests that he had examined the questioned voice and voice samples submitted to him. His report (Exh.185) supports the prosecution, meaning thereby the questioned conversation was found to have been made between the appellant no.1 and the complainant. PW 17 - Mukeshkumar was the R.P.F. Sub-Inspector on duty on 09.03.2014 that is the day on which the appellants came to be trapped. PW18 - Mhadgut is the Investigating Officer. PW 19 -
Prakash was a Police Inspector, R.P.F. He carried the seized articles to Forensic Science Laboratory, New Delhi.
::: Uploaded on - 26/12/2022 ::: Downloaded on - 06/01/2023 16:25:36 ::: 12 Cri. Appeal Nos.481 and 544 of 201817. Let us advert to the evidence of the complainant first. It is in his evidence that in the months March-April 2014, he would vend Tea in Mahanagari Express between Jalgaon and Manmad railway stations. On 09.03.2014, he attended the marriage of one of his relations. He had, therefore, given his Tea thermos to Amjad (PW 4) to sell tea in the train. Appellant no.1 arrested Amjad and four others for selling eatable unauthorisedly in the train. Action under Section 144 of Railways Act, 1989 was, therefore, taken against all of them. The complainant stood surety for Amjad.
Appellant No.1 had seized the complainant's identity card that time, besides thermos from PW4 - Amjad. It is further in his evidence that appellant no.1 had given him a message through Rahul (P.W.5) to pay him (appellant No.1) hafta (monthly amount) for unauthorised sale of Tea in the trains.
18. It is further in the evidence of the complainant that he met appellant No.1 on 01.04.2014 and showed him the receipt of payment of fine by Amjad. Appellant No.1 still refused to return the identity card and thermos as well. He made a demand of Rs.1,000/-
per month. Since the complainant did not wish to pay bribe, he contacted A.C.B., C.B.I., Mumbai on 07.04.2014. The C.B.I. officials ::: Uploaded on - 26/12/2022 ::: Downloaded on - 06/01/2023 16:25:36 ::: 13 Cri. Appeal Nos.481 and 544 of 2018 came to Chalisgaon on the next day. He met them there. He submitted a written complaint (Exh.49). PW 18 - Mhadgut, C.B.I. official (Investigating Officer) had secured presence of two B.S.N.L. officials to act as panch witnesses. He decided first to have the demand of illegal gratification verified. A memory card was, therefore, placed in a digital void recorder. The complainant made a phone call to Appellant No.1. The conversation came to be recorded (reference thereto would be made lateron). It is further in his evidence that Appellant No.1 asked the complainant to meet him in the evening. The tape recorded conversation was played. Demand verification panchanama (Exh.57) was drawn. It is further in his evidence that a pre-trap panchanama (Exh.60) was also drawn. By 03:45 p.m., he alongwith shadow witness (P.W.3), went to the R.P.F. office. As planned, digital voice recorder was on his person. He talked with Appellant No.1. The complainant told Appellant No.1 that he was ready to pay him money. He questioned the complainant whether he had brought money with him. Appellant No.1 asked him to pay a sum of Rs.2,000/-. The demand was with gestures, showing two fingers. The complainant requested to reduce the amount to Rs.800/-. Appellant No.1, in turn, asked him to pay Rs.1,000/- per month. It is further in his evidence that Appellant ::: Uploaded on - 26/12/2022 ::: Downloaded on - 06/01/2023 16:25:36 ::: 14 Cri. Appeal Nos.481 and 544 of 2018 No.1 asked him to bring Rs.1,500/- if he wanted to have his thermos back. Appellant No.1 refused to release the identity card and thermos at once unless the said amount was paid. As planned, both, the complainant and shadow witness came back to the C.B.I. officials. The conversation between the two was played. C.Ds. of the original conversation were made. A panchanama to that effect was drawn vide Exhibit 71.
19. It is further in the evidence of the complainant that he produced currency notes of sum of Rs.1,500/-. The C.B.I. officials applied anthracene powder to those currency notes. The investigating officer gave all the concerned the requisite instructions.
It was specifically asked the complainant that amount shall be paid only on demand. A pre-trap panchanama (Exh.60) was drawn.
Again, the complainant made a phone call to Appellant No.1 from his cell phone no.9623810717. Then, both complainant and shadow witness went to the R.P.F. office. Appellant No.1 enquired with the complainant, "oks yk;s gks?" (whether bribe money was brought). The complainant told him to have brought Rs.1,500/-. Appellant No.1 asked the complainant to pay Rs.100/- to Fakirbabu. He also asked Fakirbabu to return the thermos to the complainant. The ::: Uploaded on - 26/12/2022 ::: Downloaded on - 06/01/2023 16:25:36 ::: 15 Cri. Appeal Nos.481 and 544 of 2018 complainant accordingly paid a sum of Rs.100/- to Fakirbaba (original accused no.3). He received the thermos after having acknowledged the receipt thereof in a concerned register. It is further in his evidence that Appellant No.1 asked him to cover the currency notes in a newspaper and pay the same to a person sporting yellow colour T-shirt, who was present on Platform No.3.
The complainant accompanied by the shadow witness, therefore, went there. They met the concerned person Nasir Mirza (Accused No.4). The complainant paid him the amount and told that the same is being paid on the instruction of Appellant No.1. He received the amount and counted the same. Appellant No.2 was present there.
He took that amount from him. He then made a phone call to someone and informed that the amount has been received from a man from Jalgaon. He also asked the complainant to pay him a fixed amount each month. As planned, the complainant gave a pre-
determined signal. The C.B.I. officials arrived in no time. The bribe money came to be seized. Then trap and post-trap panchanamas were drawn.
20. The evidence of PW 3 - shadow witness, although consistent with the evidence of the complainant, is of not much ::: Uploaded on - 26/12/2022 ::: Downloaded on - 06/01/2023 16:25:36 ::: 16 Cri. Appeal Nos.481 and 544 of 2018 assistance to the prosecution. According to this witness, he did not hear any conversation between the complainant and Appellant No.1.
He came to know everything about the said conversation, only when the tape recorded conversation was played. It is not known as to why, this witness, inspite of having been instructed to see and observe everything, did not obey the instructions given by the Investigating Officer. The said witness was not declared hostile. The evidence of this witness is not referred to in extenso.
21. Evidence of PW18 (Investigating Officer) is consistent with the prosecution case. It is in his evidence that pursuant to the directions of his higher-ups, he came to Chalisgaon. He received a written complaint lodged by the complainant. He had the demand verified. He prepared demand verification panchanama and post-
trap panchanamas as well. The evidence of this witness is also not referred to in extenso, since he was not present to hear the talk between the complainant and Appellant No.1 and to witness payment of bribe money.
22. In the case of Mukut Bihari and anr. Vs. State of Rajasthan, AIR 2012 SC 2270, it has been observed thus:-
::: Uploaded on - 26/12/2022 ::: Downloaded on - 06/01/2023 16:25:36 ::: 17 Cri. Appeal Nos.481 and 544 of 2018"8. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the Act 1988. Mere recovery of tainted money is not sufficient to convict the accused, when the substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as bribe. Mere receipt of amount by the accused is not sufficient to fasten the guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification, but the burden rests on the accused to displace the statutory presumption raised under Section 20 of the Act 1988, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the Act, 1988. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness and in a proper case the court may look for independent corroboration before convicting the accused person.
23. Admittedly, the complainant would earn his living by vending Tea in trains. He would do his business specifically in ::: Uploaded on - 26/12/2022 ::: Downloaded on - 06/01/2023 16:25:36 ::: 18 Cri. Appeal Nos.481 and 544 of 2018 Mahanagari Express, between Jalgaon and Manmad stations. He knew that for doing said business, a license was required to be obtained. Admittedly, he did not obtain such license. On 09.03.2014, he had to attend marriage of one of his relations. He had, therefore, asked Amjad to vend Tea in the train on that day. He, therefore, gave Amjad his thermos. On that day, appellant no.1 arrested Amjad and three-four others for unauthorised sale of eatables in trains. It was action under Section 144 of Indian Railways Act, 1989. Amjad had to pay fine therefor. The complainant stood him surety. It is the complainant's case that appellant no.1 had taken his identity card and even seized the thermos. It is further his case that appellant no.1 had given him a message through Rahul (PW 5) to pay him bribe for release of thermos and Id-card. Rahul did not stand by the prosecution. It is in the evidence of the complainant that he met appellant no.1 on 01.04.2014 . On that day, appellant no.1 asked him to pay Rs.1,000/- for release of those articles.
During cross-examination, however, the complainant admitted that he did not remember to have met any of the accused (including the appellants) on 01.04.2014. The complainant lodged written complaint (Exh.49) on 08.04.2014. It has been specifically mentioned in the complaint that the same was being presented at ::: Uploaded on - 26/12/2022 ::: Downloaded on - 06/01/2023 16:25:36 ::: 19 Cri. Appeal Nos.481 and 544 of 2018 C.B.I. office in Mumbai. The complainant, however, testified to have presented the same at the Guest House at Chalisgaon.
24. In response to the complaint (Exh.49), the Investigating Officer decided to have the demand verified. The complainant, therefore, made a phone call to appellant no.1. The conversation between the two has admittedly been recorded. The transcript thereof (Exh.73) is on record. The same is reproduced below for better appreciation:-
Annexure "A"
(Transcription cum voice identification panchnama dated 19.06.2014 in RC-11/A/2014) Transcription of " copy of Exhibit- "A"
File-110128-001 Voice A gWyks Bell ringing Voice B gWyks Voice A gWyks Voice B dkSu Voice A gWyks ,l ch flax lkgc cksy jgs gS \ th lj eS v'kQkd cksy jgk gWaw tyxkao
ls here complainant Shri. Asfaque Khan identified voice "A" as his own voice.
Voice B Vka Ashfaqe v'kQkd cksy jgk gwWa tyxkao ls egku eS pk; csprk gwWa lkc eS S.B. Singh gka cksyks here Shri. K. B. Singh, SI, RPF, Thana Chalisgao and Shri.
Gangaram, ASI RPF, Thana Chalisgao identified probable voice B as a voice of accused Shri. S. B. Sing. The complainant Shri Asfaque Khan also identified voice of B as a voice of Shri. S. B. Singh Ashfaqe lj vkils feyuk oks vkidk D;k gIrk gS mlds ckjs es ::: Uploaded on - 26/12/2022 ::: Downloaded on - 06/01/2023 16:25:36 ::: 20 Cri. Appeal Nos.481 and 544 of 2018 S.B. Singh dk; ds gIrk Ashfaqe lj oks tks vetn dks vkius idMk Fkk oks oksgh eS v'kQkd cksy jgk gWaw S.B. Singh vPNk Ashfaqe lj oks esjk FkekZl vkids ikl tek gS dk \ S.B. Singh vkds 'kkedks ys tkuk Ashfaqe rks lj oks vkidk D;k jgsaxk efgus dk S.B. Singh rqe vkds FkekZl ys tkuk igys Ashfaqe lj es dc feyw vkils S.B. Singh 'kke dks vk tkvks Ashfaqe 'kke dks fdrus cts lj-
S.B. Singh Pkkj cts ds ckn Ashfaqe Lkj es oks lksp jgk Fkk eS isls ysds vkrk vWMOgkWUl es vkidks ns nsrk S.B. Singh Okks ugh Ashfaqe Bhd gS lj
25. Perusal of the aforesaid conversation would, in no way, lead to infer the appellant no.1 to have made demand of illegal gratification for release of the thermos and id-card of the complainant. The complainant has admitted the same. It is not known, as to why the Investigating Officer still went ahead. Be that as it may. The aforesaid telephonic conversation is referred to, since appellant no.1 has relied on the same. Moreover, the same has been duly proved.
26. The complainant has admitted that he wanted to have his seized thermos back without any order from the Court. While he ::: Uploaded on - 26/12/2022 ::: Downloaded on - 06/01/2023 16:25:36 ::: 21 Cri. Appeal Nos.481 and 544 of 2018 was with appellant no.1, it was he (complainant), who told appellant no.1 that he was ready to pay him money. That time only, appellant no.1 told - `ok' and he should come with money next day. The complainant further admitted that this case started on 09.03.2014, on the day on which appellant no.1 had caught Amjad and prosecuted him. He admitted to have had felt bad about non return of his thermos. It is further in his evidence that the R.P.F. had also prosecuted his father. There is also evidence on record to indicate appellant no.1 to have had prosecuted the complainant and others many a time. The complainant admitted, in no uncertain terms, that appellant no.1 had not demanded money during the telephonic conversation, but he was afraid of further case being filed against him by appellant no.1. When the complainant used the word "hafta", appellant no.1 responded - "not that", "kay ka hafta".
According to the complainant, the demand of bribe of Rs.2,000/-
was made by gestures, i.e. show of two fingers.
27. Since all the happenings have been tape recorded and the transcript thereof has been part of the evidence in the case, it is better to advert thereto instead of referring to the oral evidence of the complainant. Before adverting thereto, it must be stated here ::: Uploaded on - 26/12/2022 ::: Downloaded on - 06/01/2023 16:25:36 ::: 22 Cri. Appeal Nos.481 and 544 of 2018 that the cell phone (9623810717) used by the complainant stood in the name of PW 16 - Shoaib. This witness has given evidence to have had given his Sim Card to the complainant to make use thereof permanently. The cell phone number of appellant no.1 has been proved by the evidence of the Nodal Officer of the concerned cellular company (PW 8 - Vijay). The transcript of the recorded conversation was prepared in the presence of panchas. Voice samples of all the concerned were obtained. The C.F.S.L. report favours the prosecution. Moreover, the part of the recorded conversation was relied on by the appellants.
28. Transcript of next conversation is at Exhs.74, 75 and 76.
Exh.74 Annexure "B"
(Transcription cum voice identification panchnama dated 19.06.2014 in RC-1/A/2014) Transcription of " copy of Exhibit- "B"
File-110128-001
Background noise
A ,l ch flax lkc ls feyuk gS A
B D;k uke gS euekMls vk;k gS D;k
A ugh tyaxkols
Here complainant Shri. Ashfaqe Khan identified voice "A" as his own voice.
B Tkyxkoals Ashfaqe v'kQkd B v'kQkd ::: Uploaded on - 26/12/2022 ::: Downloaded on - 06/01/2023 16:25:36 ::: 23 Cri. Appeal Nos.481 and 544 of 2018 Ashfaqe UkeLrs lj B Ykk Ashfaqe v'kQkd lj B gk v'kQkd eryc Ashfaqe tyxkao ls lj B gka gka rqEgh ;agk Qksu fd;s Fks
Here Shri. K. B. Singh, SI, RPF, Thana Chalisgao and Shri Gangaram, ASI RPF, Thana Chalisgao identified probable voice B as a voice of accused Shri. S. B. Sing. The complainant Shri. Ashfaqe Khan also identified voice of B as a voice of Shri. S. B. Singh.
Ashfaqe Tkh S.B. cksyks cksyks D;k gsYi da# Singh Ashfaqe Lkj tks esjk FkekZl gS uk S.B. Singh rqEgkjs rqEgkjs uke gS Ashfaqe Lkj S.B. esjs dks isgspkurs Singh Ashfaqe th lj S.B. Singh dc ls igspkurs Ashfaqe EkS rks vkidks pkj ikp lky ls igpkurk gWaw S.B. Singh Ykak Ashfaqe Pkkj ikap lky ls igpkurk gWaw S.B. Singh pkj ikap lky ls
fdrus lky ls rw ;sa /kank djokus yxk ;s crk tyxkao es eS Fkk rc rks rw pyrk ugh Fkk Ashfaqe lj eS ml fnu NqVVh is Fkk bl otg ls vks vetn vk x;k ml xkMh es cl pk;
ysds S.B. Singh ;s crk vetn voice not clear ge NksM fn;k vPNk yMdk eS ;s ugh cksy jgk eS phM D;ksa x;k tc tekur is rsjs lIyhesaV is NksM fn;k rks vk;k ugh A eS tkurs gks eS mlds mij Mcy dsl cukus ds pDdj es Fkk dc dk eS tyxko ls ykrk eS pkj ckj x;k gwWa ysdhu idMus ugh x;k gwWa mldks-
Ashfaqe ugh lj oks vk;k gh ugh ml fnu ls vkius FkekZl tek fd;s uk S.B. Singh ugh ml fnu mldh ckr ugh igys Hkh tc eS Ashfaqe vNk vPNk ::: Uploaded on - 26/12/2022 ::: Downloaded on - 06/01/2023 16:25:36 ::: 24 Cri. Appeal Nos.481 and 544 of 2018 S.B. Singh dksVZ es rcdh ckr gS x;k ysdhu eS mldks ugh vxj fdlh dks cksyk mldks idM dj ykvks- eS oagk ls mBk ysrk ysdhu ge tkuds mlds dh ge mldks idM ds mlds vkSj dsl cukuk Fkk Ashfaqe vPNk vPNk S.B. EkS blds fy, eS mldks ------NqV ns ds j[kk Fkk Singh Ashfaqe ugh lj tks Hkh gS S.B. Singh Voice not clear f'kokth uxj ls gS dk \ Ashfaqe th lj Accused S.B. Singh talking with other persons.
S.B. dkgk ls vk;k \ Singh Ashfaqe EkS ekysxkao ls vk;k gS lkc S.B. Singh Ekkysxko Ashfaqe th lj esjs ukuh ukuk jsgsrs m/kj is eS vHkh Vªd ls vk;k gwWa gk;os ls S.B. FkekZl 5 cts feysaxs Singh Ashfaqe th lj S.B. Singh vk/kk ?kaVk vkSj #d tk Ashfaqe Bhd gs lj S.B. Singh fey tk;sxk Ashfaqe vkSj esjk OgksVj vk;Mh Hkh gS mles OgksVj vk;Mh Hkh gS lj OgksVj vk;Mh Hkh gS lj S.B. ;agk ns[kk ugh gS Singh Ashfaqe gS uk lj S.B. Singh Rkwe tekur fn;k gS \ Ashfaqe gka gka
S.B. Singh rks rqe vkt rks Lo;e vkjksih gks tkvks xs Ashfaqe lj dsl rks fuy gks x;k uk S.B. Singh fuy gks x;k rks D;k gqvk oks le; is ugh vk;k uk ml le; Ashfaqe ,d rkjh[k dks dsl fuy fd;k uk lj S.B. Singh vHkh ges ekywe gS ftl fnu fuy fd;k gS mlls eryc ugh gS Ashfaqe vPNk ::: Uploaded on - 26/12/2022 ::: Downloaded on - 06/01/2023 16:25:36 ::: 25 Cri. Appeal Nos.481 and 544 of 2018 S.B. Singh tekurnkj ftl fnu rqe is'k ugh gq, gks is'k ugh fd, gks ml fnu rqEgkjk ;s tIr gks pqdk Ashfaqe vPNk vPNk S.B. Singh Oks rks rqe Hkh vkjksih cu tkvksxs Ashfaqe lj fIyt dqN djs S.B. Singh rqe Hkh vkjksih cu tkvksxs rqe rks ml fnu rks mldk tekur nkj dk gksrk gS ge rks rhu rkjh[k fn, Fks rhu rkjh[k dks rqe dks ysus vkuk gS ;k rqes mifLFkr gksuk gS Ashfaqe th lj oks ml fnu D;k gqvk vWDP;qvyh mldh xkMh fel gks x;h Fkh lj bldh otg ls oks igwap ugh ik;k gS S.B. Singh dagk Ashfaqe euekM is S.B. vgk esjs dks ,d ,d ckr ekywe gS Singh Ashfaqe dSls lj S.B. Singh esjs dks ,d ,d pht gS ogka dh ekywe gS tyxkao dh not clear Ashfaqe Tkh lj S.B. Singh vc oDr oDr dk crk nwaxk dkSu vkneh dagk jsgrk dagk ugh [kMk jgsrk gS dagk gS dagk x;k dagk ugh x;k le> es vk;k \ Ashfaqe Tkh lj S.B. Singh eS ogh ukSdjh dj pwdk gwWa vPNk uksdjh fd;k gWaw iqN Hkh ysuk oagk Hkh crk nsaxs dSlk gs A Ashfaqe Lkj eSus ns[kk Fkk vkidks oagk S.B. Singh dSlk gwWa ;s Hkh iwN ysuk Ashfaqe vPNk vPNk S.B. Singh gk vkSj >xfj;k ls Hkh crk nsuk flax lkc feys Fks rks oks Hkh rqEgs crk nsaxk tks rqEgkjk xq# lcdks cuk ds j[kks >xjh;k dks uk rks oks Hkh crk nsaxk dh dSlk gwWa Ashfaqe th th Accused S. B. Sing talking to other persons S.B. Singh gka D;k cksy jgk gS Ashfaqe Lkj S.B. Singh gka crk uk gk Ashfaqe lj tjk egsus dk fdruk #i;k ysaxs lj fdruk iSlk eryc esjs dks S.B. Singh Lkc nsrs gS uk ,d nsrs gS lc Ashfaqe ,d gtkj #i;k \ ::: Uploaded on - 26/12/2022 ::: Downloaded on - 06/01/2023 16:25:36 ::: 26 Cri. Appeal Nos.481 and 544 of 2018 S.B. Singh Ykak Ashfaqe lj tknk gks tk,xk uk ,d gtkj S.B. Singh ugh gksrk ugh gksrk lHkh nsrs gS- jkgwy vkSj ;s lHkh nsrs gS Ashfaqe Lkj lj 20 fnu ls esjk /kank can gS lj S.B. Singh Lkqu eS lwu rks crk jgk gwWa vkxs ugh cksy jgk gwWa eS jkgwy vkSj oks D;k uke gS th ve -----vetn ;kj vkSj ,d uk oks Ashfaqe gwa iVsy iVsy S.B. Singh gka iVsy dk Hkh rks idMuk gS tks p.kk csprk gS A Ashfaqe ugh oks pk; csprk gS p.kk oks m/kjdk Hkqlkoyokyk csprk gS S.B. Singh ugh ugh iVsy tyxko okyk gS ;s Ashfaqe mldk p.kk ugh csprk lkc dksbZ S.B. Singh iVsy ,d gS yack lk xksjk lk ,d gS] vkSj oks iVsy tks pk; okyk gS oks tkurk gwWa Hkqlkoy pyrk Fkk igys-
Ashfaqe vPNk lj 1000 #i;k tknk gks tk,xk lj fIyt S.B. Singh mlls fdlhls de gh ugh gS 1500 rsjs dks irk eS lcls ysrk gWaw uk eS iqN ysuk fdlhls Hkh iqN ysuk igys ysrk Fkk mlls 1500 #i;k vc bles 3 gks x;s rks cksyk dh pyks Bhd gS ,d ,d gtkj #i;s nks-
Ashfaqe gekjk ,d gh vkneh py eryc flQZ S.B. Singh not clear voice jkgwy Hkh ,dsys jsgrk-
Ashfaqe Lkkc de ls de vkB lks djks S.B. Singh ugh ugh oks lkc [kwn dg jgs uk oks dke ugh djrk th Ashfaqe D;ksa dh chl fnu gq, lj tcls vki.ks idMk Fkk FkekZl rks vkids ikl ugh gS lj S.B. Singh gk gS uk gS uk Ashfaqe FkksMk fnDdr Hkh vk;h esjs dks oks not clear voice ds otgls S.B. Singh gka \ Ashfaqe oks not clear voice ds ot ls oks dk<uk Fkk vk/kkj dkMZ vkSj OgksVj vk;Mh Hkh ;agk is tek gS lj S.B. Singh tek gS uk gS uk eSus dagk cksyk dh ugh gS mles gksxh OgksVj vk;Mh gksxh Ashfaqe vki fdrus rkjh[k ysrs gks eryc fdrus rkjhd tek djuk iMrk gS iSlk vkidk S.B. Singh rsjk fiNys ckj dk Hkh vHkh dHkh Hkh 5 rkjh[k dks Ashfaqe lj S.B. Singh gka Ashfaqe Lkj fIyt S.B. Singh fiNyk Hkh pkgh, ::: Uploaded on - 26/12/2022 ::: Downloaded on - 06/01/2023 16:25:36 ::: 27 Cri. Appeal Nos.481 and 544 of 2018 Ashfaqe Lkj ,d dsl cuk fn;k uk vkius S.B. Singh rks D;k gqvk oks dsl rks cusxk gh oSls Hkh curk gS dsl cuuk gS dsl ugh cusxk rks dSls dke pysxk js \ ukSdjh dkSu djsxk \ dsl ,slk gS dh m/kj ugh cukds b/kj cukds fn;k d#axk rks oks 250 #i;s es gksxk] ;s t#j gksxk Ashfaqe lj fIyt dqN de dj yks lj S.B. Singh esjs ikl bruk VkbZe ugh jsgrk ;s fiNh fiNh okyk esjs ikl ugh jgrk oks flLVe Ashfaqe 1500 #i;k dj nks 1500 ns nwaxk vkids fQj 500 S.B. iSlk ysds vk;k \ Singh Ashfaqe vHkh rks eS fQyky eS xkao ls vk jgk gwWa lj S.B. singh ga tc ysds vkuk rc ckr djuk esjsls --------
Ashfaqe vPNk S.B. Tkc ugh ysds vk;k rks esjs ls Singh Ashfaqe rks eaFkyh eaFkyh dqN S.B. Singh gkWa \ Ashfaqe EakFkyh es ,d S.B. Singh eaFkyh es ,d Ashfaqe 1000 lj
dSlk gS lj vHkh xjeh dk fltu gS xjeh es xkMh py ugh ikrh vkB yksx gS lj blds otg ls xkMh S.B. Singh DS ;k djs crkvks eS D;k d# mlls de rks ge fdlhls ysrk Hkh ugh gwW vdsys es vkrk Fkk dHkh fdlh ls ugh gS Ashfaqe vPNk S.B. bruh rks ckr dj fy;k eS bruh ckr rd ugh djrk fdlh ls Hkh ugh djrk brj Singh rks cgwr gks x;k Ashfaqe Lkj oks dSlk gS uk oks vetn yMdk dks bruk oks ugh gS pk; ds /kans es oks u;k u;k gS S.B. Singh gka cjkcj gS oks vPNk yMdk gS eS ;s ugh cksy jgk gwa A oks rks vk;k ugh Fkk blfy, eS ukjkt gks jgk Fkk esjs dks mlds mij Mcy dsl cukuk Fkk Ashfaqe vPNk vPNk pk; dk /kank Hkh bruk vPNk ugh pyrk lj xjeh ds fltu es vk cksyh fltu es vkidks es 1000 #i;ks ns nwaxk lj S.B. Singh okss dke ugh gksrk xjeh es ;k FkaMh es eS ns[krk jgwaxk dkSu dagk py jgk gS dagk ugh vkSj dsl Hkh cusxk ,d ,d Ashfaqe fdrus rkjhd cksys lj vkius ::: Uploaded on - 26/12/2022 ::: Downloaded on - 06/01/2023 16:25:36 ::: 28 Cri. Appeal Nos.481 and 544 of 2018 Ashfaqe vPNk S.B. Singh ikap rkjh[k Ashfaqe vPNk Bhd gS lj fQj FkekZl lj S.B. Singh ysds vktk igys fQj ys tkukuk FkekZl Ashfaqe Bhd gs dy ijlks \ S.B. Singh sdy vktk Ashfaqe D;ksa dh dy dy Bhd gS dy iSlk Hkh tekuk iMsxk D;ksa dh lj 20 fnu ls dksbZ ugh vk jgk xkMh is vkidks jkgwy Hkh crk,xk lj S.B. Singh tks Hkh gS ekywe gks tkr gS esjs dks S.B. Singh rsjs dks rks ysds vkuk pkgh, tc vk;k gS rks Ashfaqe Ykka S.B. Singh rks ysds vk;k ugh vkSj ckr djus ds fy, pyk vk;k crkvks bruk bruk ckr FkksMh eS d#axk Ashfaqe Lkj eS ekysxko Fkk uk A S.B. Singh Rkks fQj ckr gh ugh djuk Fkk A Ashfaqe Bhd gS lj dy ds fnu ysds vkrk gwW A pysxk S.B. Singh sdy tkÅaxk euekM Ashfaqe gWyks Bhd gS lj vksds Back ground noise Exh.75 Annexure "C"
(Transcription cum voice identification Panchnama dated 19.06.2014 in RC-1/ A/2014) Transcription of " copy of Exhibit' L" File -110129-001 A gWyks B gWyks ueLrs lj v'kQkd cksy jgka gwa Here complainant Shri Ashfaqe Khan identified voice "B"
as his own voice
A gka
B v'kQkd cksy jgk gwa lj
A gka cksyks Here Shri. K. B. Singh, SI RPF, Thana Chalisgao and Shri Gangaram
ASI RPF, Thana Chalsgao identified voice A as a voice of accused Shri. S. B. Singh, The complainant Shri. Ashfaqe Khan also identified voice of A as a voice of Shri. S. B. Singh.
::: Uploaded on - 26/12/2022 ::: Downloaded on - 06/01/2023 16:25:36 ::: 29 Cri. Appeal Nos.481 and 544 of 2018 Ashfaqe lj vkius cqyk;k Fkk vkWQhl es lj S. B. Singh gka rks cSBk rks gwWa Ashfaqe gka rks dc vkÅ lj S.B. Singh eS cSBk gwWa Ashfaqe vPNk vPNk vkrk gw A gWyks dV dj fn;k Exh.76 Annexure "D"
(Transcription cum voice identification Panchanama dated 19.06.2014 in RC-11/A/2014) Transcription of " copy of Exhibit-L'' File-110129-003 Background noise A flax lkc Here complainant Shri Ashfaqe Khan identified voice A as his own voice B vkSj cgWawr fnu ds ckn vk;k js Here Shri. K. B. Singh, SI, RPF,Thana Chalisgao and Shri Gangaram, ASI RPF, Thana Chalisgao identified probable voice B as a voice of accused Shri. S. B. Singh. The complainant Shri Ashfaqe Khan also identified voice of B as a voice of Shri. S. B. Singh.
Ashfaqe th lj S. B. Singh gka cksyks dgka ls vk, \ Ashfaqe EkS ekysxko es gh pyk x;k Fkk okil lj S.B. Singh gwWa Ashfaqe 'kknh gS uk oagk is S. B. Singh ga D;k ------ gS rqEgkjk \ Ashfaqe v'kQkd
S. B. Singh v'kQkd uke gS rqEgkjk vPNk D;k pkgh, Ashfaqe esjk FkekZl vkSj oks oks ¼bysD'ku dkMZ½ dkMZ gS lj S. B. Singh bysD'ku dkMZ Ashfaqe vkSj oks vetn dk eksckbZy gS uk lj uksdh;k dk S.B. Singh ,s Ashfaqe EksckbZy vkius lhe dkMZ fudkyds S.B. Singh ns fn;k Fkk ::: Uploaded on - 26/12/2022 ::: Downloaded on - 06/01/2023 16:25:36 ::: 30 Cri. Appeal Nos.481 and 544 of 2018 Ashfaqe ns fn;k Fkk S. B. Singh gka Ashfaqe rks oks Hkh tek gS vkids ikl lj S. B. Singh oks tc vetn vk,xk rc uk tk,xk Ashfaqe Lkj oks S.B. Singh ,s vent vk,xk rc uk tk,xk Ashfaqe vPNk eksckbZy mldks gh nsaxs lj vki S. B. Singh eksckbZy vkSj FkekZl mlhdk gS uk rqe rks tek------ Ashfaqe ugh FkekZl rks esjk gS lj esjk gS uk FkekZl ml fnu vk;k Fkk xkMh es pk; ysds S. B. Singh ,s Ashfaqe xkMh es pk; ysds vk;k Fkk uk ml fnu S. B. Singh rqe vk;k FkekZl ysds ugh x;s Ashfaqe ugh dy vkius fn;k ugh uk FkekZl S. B. Singh vjs ,d FkekZl tek gS mldk D;k uke gS v'kQkd ------- Ashfaqe esjk uke v'kQkd gS uk lj eS dy vk;k Fkk uk vkidks feyus S. B. Singh gkWa oks tks tks oks ,d vkSj gS uk tks ?kj vk, Ashfaqe rhu yksx pyrs uk egkuxjh es S. B. Singh gkWa Ashfaqe ,d jkgwy gS ,d 'kgk#[k gS S. B. Singh 'kgk#[k Ashfaqe Ekryc iVsy mldks ysds pyrk Fkk S. B. Singh gk Ashfaqe oks eukst dks idMs Fks vkius S. B. Singh gk eukst dks idMk Fkk Ashfaqe mldk lj cky ls S. B. Singh gka gka eS eukst dks idMk Fkk cjkcj Ashfaqe rks mldk rks FkekZl vkius ns fn, Fks nqljs fnugh S.B. Singh dsl Hkj fn;k Fkk uk lc vc rqe yksx Ashfaqe esjk ,d ckdh Fkk uk lj FkekZl S. B. Singh gkaa dc rqe iSls Hkjs Ashfaqe ,d rkjh[k dks ,d pkj ,d pkj dks ,d pkj dks ga ::: Uploaded on - 26/12/2022 ::: Downloaded on - 06/01/2023 16:25:36 ::: 31 Cri. Appeal Nos.481 and 544 of 2018 S. B. Singh jlhV Ashfaqe jlhV oks fQjkst ds ikl fn;k Fkk uk lj S. B. Singh dkSu fQjkst Ashfaqe bnzhl dk HkkbZ S.B. fQjkst us tekur rqekjh fn;k Fkk Singh Ashfaqe ugh ugh irk ugh fdldh tekur fn;k blus S. B. Singh fQjkst mldh fn;k Fkk oks yMds dh Ashfaqe Yka S. B. Singh rqEgkjh ugh fn;k Fkk- rqe rks FkekZl ysds x, gksaxs uk ,d Ashfaqe Ukgh uk lkc ugh ysxs x;k uk fn, ugh uk vius S. B. Singh oks tks gS uk FkekZl dsoy oks ,d rkjh[k dk gh dsoy mldk iSlk Hkjk x;k fdldk Ashfaqe eukst dk S.B. Singh eukst rks igys Hkj fnvk Fkk nqljs gh fnu Hkj fn;k Fkk Ashfaqe gka S. B. Singh ,d yMdk jg x;k Fkk oks dkSulk Ashfaqe Qjgku iqjh vetn vetn S. B. Singh vetn vetn ,d rkjh[k dks Hkjk iSlk Ashfaqe gka gka cjkcj S. B. Singh rks ogh FkekZl fn;k uk rks oks gh FkekZl gS Ashfaqe gka S. B. Singh rks rw dSls cksy jgk gS dh esjk gS A Ashfaqe lj mlus esjk gh FkekZl ysds x;k Fkkuk ml fnu xkMh es S. B. Singh rks rsjs mij dkSulk dsl cuk Ashfaqe esjs mij ugh cuk gS S. B. Singh Rkks fQj Ashfaqe Tkekur nsus vk;k Fkk uk lkc eS S. B. Singh rks tekur fdlds fy, Fkh Ashfaqe esjs fy, Fkh uk lkc OgksVj vk;Mh esjk tek gS uk S.B. Singh OgksVj vk;Mh Bhd gS rqekjk tek gS ysdhu rqekjk tks gS uk Ashfaqe gka gka S. B. Singh rqEgkjs mij rks dsl ugh cuk Fkk ::: Uploaded on - 26/12/2022 ::: Downloaded on - 06/01/2023 16:25:36 ::: 32 Cri. Appeal Nos.481 and 544 of 2018 Ashfaqe ugh ugh ugh ml fnu ns[kks eS #eky cka/kds vk;k Fkk xksxy yxkbZyk Fkk rwe iwN jgs Fks yack yMdk dkSu gS cksyrs-
S. B. Singh Ykak Ashfaqe eS Fkk uk oks
S.B. Singh rks Bhd gS uk rks rqe mldks ml mldk D;k uke gS Ashfaqe Vetn S. B. Singh gk FkekZl rks OgksVj vk;Mh rks rsjs dks ns nsrk gwWa eS Ashfaqe vPNk S. B. Singh ysdhu FkekZl oks vk,xk uk ysus Ashfaqe Lkc esjk gS uk FkekZl oks S. B. Singh rks D;k gqvk dsl rks mlds mij cuk uk rqe rks cksy jgs Fks uk esjs mij Hkh cuk;k dsl Ashfaqe ugh ugh eS flQZ tkehu nsus ds fy, vk;k Fkk S. B. Singh Tkkehu yk;k rks ,sls gh rks D;ks ugh cksy jgk dh tkehu nsus vk;k Fkk rks tkehu dgh rks tekurnkj rks rsjk [kkjht gks x;k ml fnu iqV vi gh ugh fd;k oks vksjkihvksa dks Ashfaqe Lkj ml fnu xkMh fel gks xbZ Fkh ml otgls oks ugh vk ik;k Fkk uk S. B. Singh ugh ugh fel ugh gqbZ Fkh esjs dks ,d ,d ckr ekywe gS Ashfaqe EkS vkids ckcw ls iqNk yks fdrus ckj dkWy fd;k oagk lj eSus S. B. Singh dkWy djus D;k gksxk dkWy ls D;k gksxk rqekjs dkWy ls ges dksbZ eryc ugh gS ges rks ----- eryc gS vki iSlk Hkjk x;k oks ckr ugh gS- OgksVj vk;Mh rks rsjs dks fey tk,xk OgksVj vk;Mh b/kj gh fey tk,xk FkekZl Ashfaqe Lkkc ,d ckj vki jkgwy ls dkWy djds iqN yks dh ;s vetj fdldk FkekZl ysds x;k Fkk S. B. Singh rqEgkjh pk; csprk vks Ashfaqe gka S. B. Singh csprk rks gS ekywe gS esjs dks oks yk;k Ashfaqe th lj th S. B. Singh Ekkysxko ;s okyk ekysxko Ashfaqe b/kj ls gk;os ls pkyhl xkols tkrs gS uk dqN 1 ?kaVk yxrk gS esjs ukuh ukuk jgsrs gS m/kj 'kknh gS oagk is ?kj es blfy, S. B. Singh vHkh dagk Fkk rw Qksu fd;k Fkk esjs dks ::: Uploaded on - 26/12/2022 ::: Downloaded on - 06/01/2023 16:25:36 ::: 33 Cri. Appeal Nos.481 and 544 of 2018 Ashfaqe EkS gk;os is Fkk lj fj{kk idMds vk;k vHkh S. B. Singh gk;os es Ashfaqe gka gka vWDP;qvyh nks rhu fnu dk izksxzke gS bl fy, eS S. B. Singh Ckkcw dks lkS #i;k ns nsuk Ashfaqe th th S.B. Singh Bhd gS vkSj ;s dkxt es iSd dj ns iSd dj nsuk iSd dj iSlk yk;k Ashfaqe Tkh lj S. B. Singh rks bles iSd dj Ashfaqe Lkj exj ckcw dks nsus ds fy, ugh gS lj dqN fpYyj gh cps gS lj S. B. Singh D;k Ashfaqe Ckkcw dks nsus ds fy, dqN ugh flQZ fpYyj gh cps gS S. B. Singh fdruk fpYyj gS 50 #i;s ns Ashfaqe Ukgh flQZ ia/kjklks #i;k rks gS lj esjs ikl es vkSj ;s cl brus gh iSls lj vkius cksyk Fkk mrus gh yk;k Fkk lj S. B. Singh bles pkSnk] 100 #i;s fudkyns Ashfaqe pkSnklks #i;s fudky nw D;k S. B. Singh pkSnk lks fudky 100 #i;k ckcw dks ns nsuk Ashfaqe Bhd gS A S. B. Singh bles iSd dj Ashfaqe bles iSd dj nw lj cl Bhd gS uk S.B. Singh 100 #i;k fudky ys vyx ls Ashfaqe fudky fy;k uk lj S. B. Singh tsc es j[k Ashfaqe ;s 100 #i;k S. B. Singh oks Hkh tsc es j[k ;s Qdhj ckcw bldk FkekZl ns tek gS iSlk Hkj fn;k Fkk dksVZ es ,d rkjh[k dk oks jkst Qksu djrk Fkk uk C gka S. B. Singh gk mldk ns nsk tk ns ns 100 #i;k C ---------- cksyk Fkk rw vk;k gh ugh Here Shri. K.B. Singh, SI, RPF, Thana Chalisgao and Shri. Gangaram, ASI RPF, Thana Chalisgao identified voice "C" as a voice of accused Shri. Amir Phakir. The complainant Shri Ashfaqe Khan identified voice of "C" as a voice ::: Uploaded on - 26/12/2022 ::: Downloaded on - 06/01/2023 16:25:36 ::: 34 Cri. Appeal Nos.481 and 544 of 2018 of Shri. Amir Phakir.
Ashfaqe Tkh lj Phakir gka brus fnu ls D;ksa ugh vk jgk gS rw Ashfaqe Tkh lj Phakir D;k Ashfaqe Lkj esjk oks vk;MsUVh dkMZ ----- Phakir Not clear voice uke crk Ashfaqe v'kQkd v'kQkd [kku OgksVj vk;Mh gS lj Phakir OgksVj vk;Mh gS D;k Ashfaqe gka lj Phakir Not clear voice ;s rks ugh Ashfaqe ugh ugh lj OgksVj vk;Mh gS ;s rks ;s rks vk/kkj dkMZ gS ugh lj oks Hkh ugh Phakir Not clear voice Ashfaqe ;s Hkh ugh Phakir ;s Hkh ugh rks rw dy ijlks vktk fQj v'kQkd uk Ashfaqe th Phakir not clear voice oks x;k dksVZ es vHkh dksVZokyk Ashfaqe lj ns[kks uk vHkh Phakir vjs rsjs lkeus rks vHkh fudkyk es cksy nwaxk mldks j[ksxk ----- bles tk jgk gS D;k Ashfaqe eS ugh es rks tyxko tkÅaxk uk dk'kh ls Phakir Tkyxkao tk;sxk D;k Ashfaqe ga ga Phakir Not clear voice Ashfaqe ;s jgk Fkk uk dWu esjk Phakir vjs m/kj not clear voice Ashfaqe ;agk j[kw vanj Phakir ------ v'kQkd D;k uke rsjk v'kQkd ds uke ls gh cuk gS uk dsl rsjs ukels Ashfaqe ugh ugh vent ds uke ls cuh gS Phakir vetn ds uke ls cuh gS uk Ashfaqe gka Phakir vetn v;qc [kku Ashfaqe th fius dk ikuh gS lj ::: Uploaded on - 26/12/2022 ::: Downloaded on - 06/01/2023 16:25:36 ::: 35 Cri. Appeal Nos.481 and 544 of 2018 S. B. Singh Ckkgj tkjs ckgj tk Ashfaqe Ckkgj tkÅ D;k lj S. B. Singh gka Ashfaqe dWu ysds tkÅ Fakir tk tk
blis lkbZu ekjuk ----- b/kj lkbZu ekj ns gka gka dj ,ssls gh dks.kh dsyh gksrh-
Ashfaqe Tkh lj S. B. Singh Bhd gS oks oagk tk os tks ihyh cfu;u igsus gS ihyh cfu;u igSus cSBk gS uk-
Ashfaqe Tkh th S.B.Singh Tkk --------
cksy nsuk flax lkgc dks not clear voice Ashfaqe vPNk D D;k cksy jgk gS rw Ashfaqe iSls flax lkc dks ns nsuk D ,l ch flax lkc ds fy, complainant identified voice D as a voice of accused Shri Mirza.
Ashfaqe gka ,l ch flax
Mirza D;k uke gS rsjk D;k uke gS
Ashfaqe v'kQkd
Mirza fdl dk vkneh gS rw \
Ashfaqe esjk ------ not clear voice
E dagk ls pyk jgk
Ashfaqe Tkyxkao ls euekM
E DkSulh xkMh es
Here Shri. K. B. Singh, SI, RPF, Thana Chalisgao and Shri. Gangaram, ASI RPF, Thana Chalisgao identified probable voice E as a voice of accused Shri. Sanjeev Handore. The complainant Shri. Ashfaqe Khan also identified voice of E as a voice of Shri. Sanjeev Handore.
Ashfaqe Ekgkuxjh Mirza gaMksjs HkkÅ Lis'ky es gS A Ashfaqe D;k uke gS lj vkidk Handore gaMksjs HkkÅ Ashfaqe vkSj gka ml fnu ikVhy nknk us Qksu dj jgs Fks vkidks cjkcj gS uk vkjs ;kj esjk ::: Uploaded on - 26/12/2022 ::: Downloaded on - 06/01/2023 16:25:36 ::: 36 Cri. Appeal Nos.481 and 544 of 2018 dWu tek ;k chl rhl fnu Handore ge
gka rks esjs dks cy jgk Fkk rw vktk djds dWu ns fn;k vHkh Ashfaqe gka gka Mirza fdRrs #i;s Ashfaqe ;s pkSnklks #i;s gS vkSj lkS #i;s ckcw dks fn;k Qdhjk ckcw dks Handore SD;k uke gS rsjk ------
Ashfaqe v'kQkd [kku
Handore vHkh feyk ugh gS lkc ls
Ashfaqe ugh ugh lkc gS uk vanj muls fey ds vk;k uk
Mirza esjs dks nsus dks cksys D;k
Ashfaqe gk gk
Mirza fdRrs
Ashfaqe ;s pkSnklks gS Qdhjk ckcw nknk dks lkS #i;s fn;s ugh rks oks esjs ikl fn;k mlus
vksds
Handore gk ;s tyxkao okys ds vk x;s egkuxjh ds gka ugh oks esjs ikl fn;k mlus vksds
Voice not clear
Mirza ;s Qsd nks uk dkxn fudky nks
Handore ;s dkxn es laHkky ds j[krk gS ;s ------ laHkky j[krk gS
Ashfaqe ------- ia/kjklks --------
Mirza oks Hkh cspkjk nk# ch# ugh firk- mldks rdyhQ gksuk eaxrk ugh
Handore oks HkkM [kkÅ gS HkkM;k gS ,d uacj dk b/kj vk rw Hkh
Voice not clear
Handore gekjk D;k gS HkkbZ
Ashfaqe vki dk D;k lkc
Handore D;k cksys rks Lis'ky okys dk D;k jsgrk gS -------- cksyw D;k mldks dh D;k ;kj rw
dSlh ckr djrk gS A
Ashfaqe lkc lkc vHkh bruk iSlk rks
Handore ge cjkcj cksyk uk eS
Ashfaqe D;k d# lkc vc es igys dh gtkj #i;s flax lkc ys jgs
Handore gekjs Hkh Hkst fn;k dj mlds lkFk es ge
Voice not clear
::: Uploaded on - 26/12/2022 ::: Downloaded on - 06/01/2023 16:25:36 :::
37 Cri. Appeal Nos.481 and 544 of 2018
Ashfaqe Bhd lj
Handore vHkh ------- dWu
Ashfaqe vHkh fn;k uk lkc us dWu
F gka fdldks fn;k
Here complainant identified voice "F" voice of CBI officer Ashfaqe gka budks fn;k iSlk Handore D;k D;k lkc ,d feuhV ,d feuhV lquks rks lgh es dgh ugh tkÅaxk esjh ckr lquks lc es vkidks psySat ns jgk gwWa eS dgh ugh tkÅaxk CBI Officer pyks fudyks ;agk ls fudyks lc Handore lwuk D;k es dgh ugh tkÅaxk ,l ch flax Handore Lkkc eS D;k cksyk vjs ckr rks lquks ckr rks lquks ysdhu CBI Officer IkSlk fudky iSlk fudky iSlk fudky ------- Ashfaqe ,d rks Qdhjk djds gS mldks Hkh fn;k gS lkS #i;k
29. It is true, the aforesaid conversation would indicate that appellant no.1 was not `Mr. Clean'. The conversation would, however, indicate that it was the complainant who, all the time, first offered the appellant bribe. He intentionally delayed the conversation. That leads this Court to observe that it was nothing short of a trap to ensure appellant no.1 to be brought in the dragnet.
Admittedly, the complainant was asked to pay Rs.100/- to Fakir (original accused no.3). There is evidence to indicate that said amount was directed to be paid since return of thermos was to be on bond paper of certain sum of money.
::: Uploaded on - 26/12/2022 ::: Downloaded on - 06/01/2023 16:25:36 ::: 38 Cri. Appeal Nos.481 and 544 of 201830. Although the complainant in his oral evidence testified that appellant no.1 had asked him to go and pay the amount to a person sporting yellow T-shirt who was present on the platform no.3, the same could not be inferred from the transcript of the conversation. Even the complainant was allowed to get back his thermos before the entire amount was paid. Again said conversation is reproduced below:-
"S.B. Singh :- Bhd gS oks oagk tk os tks ihyh cfu;u igsus gS ihyh cfu;u igSus cSBk gS uk-
Ashfaqe :- Tkh th
S.B.Singh :- Tkk -------- cksy nsuk flax lkgc dks
31. It is reiterated that the aforesaid talk, in no way, lead to infer appellant no.1 to have had asked the complainant to pay the money to the person sporting yellow T Shirt. It is reiterated that the shadow witness expressed ignorance about the talk between the two. The aforesaid conversation suggests the complainant to have paid a sum of Rs.1,400/- to original accused no.4 - Nasir Mirza (the person sporting yellow T shirt). Post payment of the amount to him, there is no conversation between the complainant and appellant no.1. There is nothing in the evidence to indicate appellant no.1 to have had instructed original accused no.4 - Nasir Mirza to receive ::: Uploaded on - 26/12/2022 ::: Downloaded on - 06/01/2023 16:25:36 ::: 39 Cri. Appeal Nos.481 and 544 of 2018 the money for and on his behalf. After having received the amount, appellant no.2 (deceased) took that amount to him. According to the prosecution, he made a phone call to someone and informed to have received the money from a person from Jalgaon. There is no evidence to indicate that appellant no.2 had made phone call to appellant no.1 giving confirmation of receipt of the illegal gratification.
32. Appellant no.2 was convicted for the offence under Section 12 of the P.C. Act. Said section speaks of punishment for abetment of the offence. Appellant no.2 had also asked the complainant to pay him as well. The conversation does not in so many words state appellant no.2 to have made demand of money for him, although inference in that regard may be possible. Appellant no.2 was, however, not prosecuted for demand of illegal gratification. It is reiterated that he has been convicted for abetment, i.e. to have received the amount of bribe for and on behalf of appellant no.1. It is reiterated that the aforesaid conversation would in no way suggest him to have had made a phone call to appellant no.1 and told to have received the amount. Since the entire telephonic conversation is part of the evidence, ::: Uploaded on - 26/12/2022 ::: Downloaded on - 06/01/2023 16:25:36 ::: 40 Cri. Appeal Nos.481 and 544 of 2018 whatever extra stated by the complainant in the oral evidence, is nothing but improvement and/or afterthought.
33. In short, this Court is of the view that the complainant's man - Amjad was arrested and prosecuted by appellant no.1 for unauthorisedly doing business in the train. The complainant, inspite of having been aware that he was required to obtain license for doing business in the train, did not obtain such license, even until his evidence was recorded. He knew that for obtaining license, certain fee was required to be paid. He felt bad as Amjad was subjected to prosecution and even by seizure of thermos. The conversation recorded during exercise of verification of demand, undoubtedly, suggests appellant no.1 to have not made demand of illegal gratification. The further conversation between the complainant and appellant no.1 indicates that it was the complainant who had offered him bribe. There is no conversation specifically indicating appellant no.1 to have made demand of bribe to do the complainant favour. It is reiterated that the figure of bribe was quoted by appellant no.1 with gestures. Same is not part of the evidence. There is also no evidence to indicate appellant no.1 to have had directed the complainant in so many words to go and pay the bribe money to original accused no.4 - Nasir Mirza.
::: Uploaded on - 26/12/2022 ::: Downloaded on - 06/01/2023 16:25:36 ::: 41 Cri. Appeal Nos.481 and 544 of 2018
34. The deceased appellant no.2 had happened to be present at platform no.3. He was not privy to any of the happenings between appellant no.1 and the complainant. It was by chance, he was present thereat. He simply took the bribe money from original accused no.4 - Nasir Mirza. Although he made a telephonic call to someone, informing to have received the money from a person from Jalgaon, there is no investigation made to prove that such call was made to appellant no.1 in confirmation of having received the bribe money and appellant no.1 had given a nod thereto.
35. In the aforesaid factual backdrop, benefit of doubt deserves to be extended to both the appellants. This Court is, therefore, not at one with the impugned order of conviction and consequential sentence.
36. In the result, the appeals succeed. Hence the following order:-
(i) The appeals are allowed. (ii) The impugned order of conviction and consequential
sentence passed against the appellants by learned Addl. Sessions Judge, Jalgaon, in Special C.B.I. (A.C.B.) Case No.9 of 2014, is set aside.
::: Uploaded on - 26/12/2022 ::: Downloaded on - 06/01/2023 16:25:36 ::: 42 Cri. Appeal Nos.481 and 544 of 2018
(iii) The appellant - Shyam Bahadur Singh is acquitted of the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act.
(iv) The appellant - Sanjeev s/o. Baburao Handore is acquitted of the offence punishable under Section 12 of the Prevention of Corruption Act.
(v) Bail bonds of the appellants shall stand cancelled.
(vi) Fine amount, if any, paid by the appellants be refunded to them.
[R.G. AVACHAT, J.] KBP ::: Uploaded on - 26/12/2022 ::: Downloaded on - 06/01/2023 16:25:36 :::