Delhi District Court
Cbi vs Devinder Saini on 31 August, 2012
1
IN THE COURT OF MS. RAVINDER KAUR,
SPECIAL JUDGE ( PC ACT)-03, CBI,
SAKET COURTS, NEW DELHI
C C No. 43/12
Unique Case ID No. 02406R1039872007
CBI Versus Devinder Saini
S/o Sh. Waryam Singh
R/o JF-2C/1, Ist Floor,
Khidki Extn.,
Malviya Nagar,
New Delhi.
R C No. DAI/2006/A0037/CBI/ACB/ND
U/S. 7, 13(2) r/w Sec. 13(1)(d) of the P C Act,
1988
Date of Institution : 31.05.2007
Received by transfer on : 04.04.2012
Arguments concluded on: 27.08.2012.
Date of Decision : 31.08.2012
JUDGMENT
C C No. 43/12 CBI Vs. Devinder Saini Page no. 1 2 1 The prosecution case is that Smt Amina hereinafter addressed as complainant, lodged complaint Ex. PW 3/A with the CBI on 18.9.06 alleging therein that her son Nafis alongwith others was falsely implicated by Devinder Kumar, chowki incharge PS Sarai Kale Khan in FIR No. 605/06 PS H N Din and on 15.9.06 when she alongwith her sister Zarina met SI Davinder he demanded bribe of Rs. One Lac for grant of bail to her son in the above referred case and also assured not to send Nazim, the son of her sister Zarina, to jail. It is further alleged that on 18.9.06 the complainant called Devinder Saini on his mobile phone No. 9811113030 and she was asked to come to the police post alongwith money. The complainant could arrange only Rs. 20,000/- and in her complaint stated that she did not want to give any bribe and sought necessary action. Consequently, after verification of the complaint, FIR No.RC-DAI-2006-A-0037- Ex. PW 13/A was registered and was entrusted to Inspt Alok Kumar who decided to lay trap. Two independent witnesses namely Ashok Kumar and Rajbir were joined alongwith Inspt C K Sharma, Umesh Vashisht, SI G K Pradhan, Lady Ct. Kavita in the trap team. Pre - trap proceedings were conducted at the CBI office. The C C No. 43/12 CBI Vs. Devinder Saini Page no. 2 3 complainant produced Rs. 20,000/- in 40 G C notes of Rs. 500/- denomination which were treated with phenolphthalein powder and were handed over to the complainant which she kept in her brown colour purse. She was directed to hand over the bribe amount to the suspected officer on his specific demand. A digital voice recorder and two blank audio cassettes and other attachments were also arranged for recording the conversation, if any, between the complainant and the suspected officer and the introductory voice of both the independent witnesses was recorded in the DVR.
2 The trap team reached the spot. The complainant then contacted SI Devinder on telephone who told her that he would be reaching there in 40 to 45 minutes. At about 08:45pm the complainant was handed over the DVR in ON position and was directed to contact SI Devinder alongwith her sister Zarina. The members of the trap team took their respective positions in and around the police post. After about 10 minutes, one yellow WagonR car entered inside the police post. The person who was driving the said vehicle, was seen going towards the room of the chowki incharge and was carrying a big off white colour polythene carry bag and entered in the police post and C C No. 43/12 CBI Vs. Devinder Saini Page no. 3 4 the said person was lateron identified as SI Devinder Saini, incharge police post. Thereafter both the complainant and her sister were seen entering the room of chowki incharge. After about 15/20 minutes, Smt Zarina was seen coming out of the said room and going towards the main road. Meanwhile after one or two minutes, SI Devinder Saini was also seen going out of his room towards Buses entry gate and the complainant Smt Amina followed him. In the meantime, Inspt Umesh Vashisht alongwith lady Ct Kavita and Smt Zarina came rushing inside the chowki and informed that Zarina had informed them that SI Devinder Saini I/C had demanded and accepted the bribe. At this, the team members rushed towards the room of chowki incharge and thereafter towards Smt Amina. It was informed by Smt Amina that Devinder Saini had rushed towards the Buses entry gate side after demanding and accepting the bribe amount and had probably thrown something in the bushes nearby the latrines in the police chowki. The bushes and latrines were searched but nothing could be recovered. SI Devinder was also not traceable.
3 The complainant informed the trap team members that the chowki incharge who had come in C C No. 43/12 CBI Vs. Devinder Saini Page no. 4 5 his yellow WagonR car, had then gone to his room alongwith an off white envelope of polythene had he kept the same on his table. They then discussed the case and bail matter of the son of the complainant and the chowki incharge assured her about the bail of her son and also gave a white paper slip on which he wrote in his own handwriting the name of Sh. A K Mishra, advocate, Ch. No. 699, Patiala House Court, Mobile No. 9810902337 and Amina was directed to contact the said advocate. During investigation, the said paper slip Ex. PW 6/DA was seized.
4 The complainant also disclosed that SI Devinder Saini had negotiated for the bribe and asked for Rs. 80,000/- instead of Rs. 20,000/- as given by the complainant and that he accepted the said amount on the condition that the rest of the bribe amount will be provided soon. She informed that Devinder Saini had accepted the bribe money and placed it below the off white envelope of polythene lying on his table and thereafter he placed it over the papers lying inside the right upper drawer of the table. Meanwhile, when Smt Zarina went out of the room, Devinder Saini took out the bribe money and placed it in his right side pocket of his pant and started moving towards the Buses entry C C No. 43/12 CBI Vs. Devinder Saini Page no. 5 6 side gate.
5 During the investigation the wash of off white envelope of polythene Ex. P-9 and the papers Ex. P-10 to Ex. P-14 lying in the office drawer was taken in the solution of sodium carbonate and the colour of the solution turn into pink. Both the washes were kept in two separate bottles and were given Mark DPW and PEW respectively and bottles were sealed with the seal of CBI.
6 The digital voice recorder was also taken back from the complainant and was played which was found containing the conversation between the complainant and SI Devinder Saini which confirmed the demand and acceptance of the bribe amount. The conversation was then transferred to the normal cassette which was given Mark Q-1.
7 The off white plastic envelope was found containing a white/ yellow - 'DHL' courier envelope having two books, two CDs, one yellow address envelope, one white poly pack having light brown powdery substance inside which appeared to be 'Smack' (Drug) weighing about 100 grams approx. The same were seized vide a separate seizure memo, in presence of independent witnesses, trap team C C No. 43/12 CBI Vs. Devinder Saini Page no. 6 7 members, complainant, complainant's sister and ACP Sh Harish Joshi.
8 Rough siteplan Ex.PW 7/C of the spot was prepared. The car No. DL 9 CJ 3060 in which SI Devinder Saini had come to PP was seized.
9 During investigation the specimen voice of accused was obtained and was sent alongwith the questioned voice to the CFSL for experts opinion. As per the report of the CFSL Ex. PW 14/B, the questioned voice was of Devinder Saini.
10 The paper slip Ex. PW 6/DA alongwith the specimen writing of the accused was also sent for experts opinion and they were found to be similar.
11 The bottles containing the DPW and PEW ie Ex. P-1 and Ex. P-2 were also sent to the CFSL for examination and as per report Ex. PW 15/A, on chemical examination of the positive test for the presence of phenolphthalein and sodium carbonate.
12 Accused Devinder Saini was dismissed from the services w.e.f 20.09.06 vide order Ex. PZ and as such no sanction for his prosecution was obtained.
13 After completion of investigation, charge sheet was filed to court for proceeding against him U/s C C No. 43/12 CBI Vs. Devinder Saini Page no. 7 8 7 & 13(2) r/w Sec. 13(1)(d) of P. C Act.
14 On the basis of material on record, charge U/s. 7 & 13(2) r/w Sec. 13(1)(d) of P C Act was framed against him to which he pleaded not guilty and claimed trial.
15 In support of its case, the prosecution examined 16 witnesses in all.( PW 2 Jyotish Moharana was inadvertently again examined as PW 9.) 16 PW-1 Shri R.K. Singh, Nodal Officer from Bharti Airtel Ltd produced the record pertaining to mobile No. 9810902337 ie the customer enrollment form with ID proof of election card Ex.PW1/A and Ex.PW1/C respectively. As per the record the aforesaid mobile number was registered in the name of Anil Kumar Mishra.
17 PW-2 Jyotish Moharana, who was inadvertently again examined as PW-9 produced the relevant record pertaining to mobile number 9811113030 Ex.PW2/B, Ex.PW2/C and Ex.PW2/D respectively and as per the same the aforesaid mobile number was registered in the name of Devinder Saini R/o F-1/87-88, Sector- 11, Rohini, New Delhi. This witness further produced the call record pertaining to C C No. 43/12 CBI Vs. Devinder Saini Page no. 8 9 mobile number 9811925087 and the same is Ex.PW2/F. As per the said record the said mobile number was registered in the name of Usman R/o No. 20, Ef Road 20 Futa Road, Loni, Ghaziabad.
18 PW-3 Smt Amina, is the complainant in the present case but did not support the case of the prosecution and was declared hostile. She was cross- examined at length by the Ld. PP. However, she denied that accused present in the court had demanded any bribe from her for the removal of the name of Nazim, her son-in-law from a case or that he accepted bribe of Rs.20,000/- on 18-09-06 in his office i.e. PP-Sarai Kale Khan. Her detailed statement shall be discussed lateron.
19 PW 4 Inspt V P Dahiya is a formal witness and did not depose anything incriminating against the accused.
20 PW 5 HC Dinesh Tyagi was posted as HC at police post Sarai Kale Khan on 18.9.06. He testified that accused SI Devinder Saini was posted as incharge police post and used to come to the police post in Maruti WagonR of Yellow colour. On 18.9.06 accused came to the police post at about 9pm and stayed there for 5/10 minutes. He deposed that the CBI team had C C No. 43/12 CBI Vs. Devinder Saini Page no. 9 10 visited the police post on that day but at that time accused Devinder Saini was not present in the police post.
21 PW 6 ASI Ganga Prakash is a formal witness who testified that in pursuance to the letter dt. 21.09.06 Ex PW 6/A of ACP Harish Joshi addressed to SP CBI ACB the certified copies of case FIR No 605/06 PS H N Din collectively Ex. PW 6/B were sent. He also testified that he too was member of the raiding party which was headed by SI Devinder Saini and six persons namely Nafis, Pramod, Rashid, Shakir, Wasim @ Guddu and Ashish were arrested.
22 PW 7 Ashok Kumar is an independent witness joined in the trap proceedings. He deposed about the pre trap proceedings that the two ladies namely Amina and her sister were present in the office of CBI and since Amina was illiterate, her complaint was prepared by Inspt CBI and the same was shown to them. He questioned the complainant to find out the genuineness of the complaint and she informed him that her complaint was genuine and her son was being implicated. He deposed that she produced Rs. 20,000/- in G C notes of Rs. 500 denomination and they were treated with a powder. He was given the notes in his C C No. 43/12 CBI Vs. Devinder Saini Page no. 10 11 hand and then he washed his hands and colour of water turned pink. He deposed about all the pre trap proceedings conducted at the CBI office. He further deposed that he alongwith the other members of the team, the complainant and her sister had then gone to PP Sarai Kale Khan where PW 3 Amina was given instruction to deliver bribe money and to convey the same by giving signal. He further testified that PW 3 did not give any signal but on coming outside she started telling things. He testified that they did not see the bribe transaction but she told that she had given money. Further that there was some disturbance at the spot and it was told that Devinder Saini ran away with money. During his testimony he proved the handing over memo Ex. PW 7/A, recovery memo Ex. PW 7/B, rough site plan of the spot Ex. PW 7/C, the bottles in which the wash of the polythene recovered from the office room of the accused and the papers recovered from the drawer of the table of his office room was kept as Ex. P-1 and Ex. P-2, office search memo as Ex. PW 7/D, the cassette Q-1 as Ex. P-5, Inlay card Ex. P-7, car search memo Ex. PW 7/E, specimen voice recording memo Ex. PW 7/F, whereby the specimen voice of Amina was recorded and the transcription of the same C C No. 43/12 CBI Vs. Devinder Saini Page no. 11 12 is proved as Ex. PW 7/G. The witness further proved voice identification memo Ex. PW 7/H, whereby the voice of the accused, the complainant and her sister Zarina were identified by both the complainant and Zarina. He also proved the transcription Ex. PW7/J of the recorded conversation in cassette Q-1 Ex. P-5. He proved the specimen voice recording memo as Ex. PW 7/K whereby the specimen voice of the accused was recorded. It is observed that PW 7 Ashok Kumar did not testify that there was any demand of bribe by the accused from PW 3 in his presence nor he testified that the accused accepted the bribe in his presence or that he had seen the accused going to his office or leaving his office at any point of time during the trap proceedings. His testimony is more of hearsay.
23 PW 8 Usman is another independent witness. As per the prosecution, PW 3 Smt Amina, the complainant was sister-in-law( Bhabhi) of this witness and she was using the mobile phone belonging to PW
8. However, PW 8 did not support the case of the prosecution and was declared hostile. He was cross examined by Ld. PP at length but denied that complainant was his sister-in-law or she was using his mobile phone. On the contrary, the witness testified C C No. 43/12 CBI Vs. Devinder Saini Page no. 12 13 that he was known to the accused and had been in touch with him from his mobile phone.
24 PW 10 Sh Harish Joshi was posted as ACP Lajpat Nagar on 18.9.06 and testified that he reached Police Post Sarai Kale Khan at 10:30pm on receiving a telephone call from Inspt Mr Sharma at 10pm that they had conducted a raid there and sought his assistance. He testified that on reaching there he was informed that SI Devinder Saini, the incharge police post Sarai Kale Khan had taken Rs. 20,000/- from two ladies sitting in the police post to whom he was introduced and that SI Devinder Saini had fled away with the bribe amount. Further that thorough search of police post Sarai Kale Khan was conducted by CBI vide office cum search memo Ex. PW 7/D. He was also asked to furnish the residential address of SI Devinder Saini on which he made enquiry from MHC(M) but he did not have his residential address. He further testified that vide letter Ex. PW 6/A he had handed over the attested photocopies of the case file of case FIR No. 605/06 PS H N Din ( containing 1 to 75 pages )collectively Ex. PW 6/B, in compliance of notice U/s 91 Cr PC.
25 PW 11 Rajbir Singh is another independent witness joined in the trap proceedings. He deposed of C C No. 43/12 CBI Vs. Devinder Saini Page no. 13 14 his being introduced to PW 3 Amina and PW 12 Zarina by PW 13 Inspt Alok Kumar and was informed that the incharge police post Sarai Kale Khan had demanded bribe from PW 3 and PW 12 who were having their case in the said police post. He further deposed about the pre trap proceedings and that during pre trap proceedings he had gone through the complaint which the complainant had brought in writing but when he was shown the complaint Ex. PW 3/A during his testimony, he stated that he cannot say if it was the same complaint. He further deposed that after pre trap proceedings the entire team had reached bus stand Sarai Kale Khan near police post and the CBI officials made enquiry and came to know that chowki incharge was not available in the police post at that time. He alongwith PW 7 Ashok Kumar took position near the bus stand, whereas CBI officials had taken position at different places surrounding the bus stand near the police post. Both the females were sent to the police post with direction that they hand over the bribe money to the chowki incharge regarding whom the ladies had complained and they would give a prefixed signal by scratching their head. This witness further testified that after 1/ 1 ½ hours some CBI official C C No. 43/12 CBI Vs. Devinder Saini Page no. 14 15 informed him and PW 7 Ashok Kumar that the police official to whom Amina and Zarina had given the bribe, had run away from there. He deposed that alongwith CBI officials they had searched for the bribe taker in the direction in which he had escaped and had also searched the bushes and bathroom but he could not be found nor any money could be recovered. This witness was declared hostile by the prosecution on certain material points and was cross examined at length by the CBI and was confronted with his statement U/s 161 Cr PC Ex. PW 11/PX. He categorically denied that 10 minutes after PW 3 went to the chowki, one yellow colour car entered the chowki premises driven by the accused present in the court and that while holding one off white colour polythene bag the accused went towards the room of chowki incharge. He also denied that PW 12 Smt Zarina came rushing towards Inspt Umesh Vashisht and lady Ct. Kavita and informed that accused had demanded and accepted the bribe amount.
26 PW 12 Smt Zarina is the sister of PW 3 Amina, the complainant and as per the prosecution she allegedly witnessed the demand and acceptance of bribe by the accused. However, she did not support the C C No. 43/12 CBI Vs. Devinder Saini Page no. 15 16 case of the prosecution and was declared hostile. She was cross examined by the CBI at length and therein she testified that bribe was demanded from her sister for the bail of her son but she was not aware of as to who had demanded the bribe. She stated that the bribe was demanded by the police official of police post Jangpura. She denied that the complaint was lodged by her sister against SI Devinder Saini of police post Sarai Kale Khan. She also denied to have participated in the trap proceedings. She denied that she had accompanied her sister inside the office of chowki incharge. She also denied that all the trap proceedings conducted at the spot. Regarding her thumb impression on different documents, she stated that the same were obtained by the CBI but could not tell the date, time and place where they were obtained.
27 PW 13 Inspt Alok Kumar made a detailed statement right from the receipt of the complaint, pre trap proceedings and proceedings conducted at the spot. He testified regarding the entire investigation conducted by him and proved the FIR Ex. PW 13/A and other documents.
28 PW 14 Dr Rajender Singh is an expert witness, who proved the forwarding letter of SP CBI as C C No. 43/12 CBI Vs. Devinder Saini Page no. 16 17 Ex PW 14/A vide which two sealed parcels Mark Q-1 and S-1 respectively were received in the CFSL. He had examined the questioned voice of accused Devinder Saini as contained in Q-1(A) Ex. P-5 with his specimen voice contained in Ex.-S1 ( A) and proved his report as Ex. PW 14/B and as per his report Ex. PW 14/B, the questioned voice recording of Devinder Saini tallied with specimen voice in respect of their linguistic, phonetics and other general spectrographic parameters.
29 PW 15 V B Ramtake is another expert witness who proved the chemical analysis report of the two sealed bottles received in the CFSL vide forwarding letter of SP CBI Ex PW 13/C. He testified that both the bottles were given mark Ex.DPW and Ex. PEW and on chemical examination of the exhibits they gave positive test for the presence of phenolphthalein and sodium carbonate and he proved his report as Ex. PW 15/A. He further proved envelope Ex. PW 15/B vide which the exhibits in sealed condition were sent back to the CBI after chemical analysis. He identified the cloth wrappers of both the bottles, referred above, bearing the seal of CBI as Ex. P-3 and Ex P-4 respectively.
C C No. 43/12 CBI Vs. Devinder Saini Page no. 17 18 30 PW 16 Inspt C K. Sharma deposed on the similar lines as that of PW 13 Inspt Alok Kumar.
31 PW 17 Inspt D D Sharma was subsequent IO who after completion of investigation filed the charge- sheet in the present case.
32 During prosecution evidence, Sh J S Wadia, the then PP for CBI had tendered in evidence report Ex. PA of the handwriting expert Sh N K Aggarwal, SR. Scientific Officer regarding identification of the handwriting of accused on paper slip Ex. PW 6/DA.
33 The accused vide his statement U/s 294 Cr PC admitted his order of dismissal dated: 20.09.2006 from Delhi Police as Ex. PZ.
34 After the closure of the prosecution evidence, the statement of the accused was recorded U/s 313 Cr. PC. In his statement the accused admitted that on 30.08.2006 case FIR No. 605/06 was registered at his instance with PS H N Din U/s. 399/402 IPC and U/s 25 Arms Act and persons namely Nafis, Pramod, Rashid, Shakir, Wasim @ Guddu and Ashish were arrested as accused. He also admitted that accused Nafis was the son of PW 3 Smt Amina and that he was involved in 10/12 cases previously C C No. 43/12 CBI Vs. Devinder Saini Page no. 18 19 also. On 30.8.06 he had handed over the investigation of case FIR No. 605/06 to SI Manoj, Chowki Incharge Jangpura vide rukka itself and he had no concern with the said case thereafter. He stated that he has been falsely implicated in the present case. He denied that he made any demand of bribe or accepted any bribe from the complainant PW 3. He claimed that the complaint Ex. PW 3/A was false and that on 15.9.06 the day when he had allegedly demanded bribe at police post Sarai Kale Khan, he was on leave and out of station and claimed that the call record Ex. PW 2/B and Ex.PW 9/D of his mobile phone No.9811113030 proves the same. He denied that on 18.9.06, 10 minutes after about 8:45pm he entered the police post in yellow WagonR car and got down while holding off white colour polythene bag and entered in the room of incharge police post or that lateron from the said polythene 100 grams smack was recovered.
35 Accused denied the entire incriminating evidence appearing on record against him and claimed to be innocent. He stated that at the time of alleged incident he was not present in the police post and was on patrolling. He further stated that he C C No. 43/12 CBI Vs. Devinder Saini Page no. 19 20 never had any conversation with the complainant on the alleged day of incident.
36 Accused further stated that he was on leave wef 14.09.06 and his leave was sanctioned by ACP Lajpat Nagar and placed on record to this effect the true attested copy of the DD No. 29 PP Sarai Kale Khan as Ex. DX. He stated that he had gone to Dehradun and Mussoorie in the morning of 15.9.06 to meet his son who was studying there. On 18.09.06 he had joined his duty at about 9/10am and left his office in the evening hours after informing the SHO PS H N Din. That there was some secret information regarding a case of smack and he was directed by the SHO to confirm the information. He was present in the PS H N Din when he had got the secret information and from there itself he had left for Katwaria Sarai the place of secret information and had directed his staff present in the police post to reach Katwaria Sarai. That at the instance of secret informer, he had apprehended a Nigerian, who did not know Hindi or English language. From the Nigerian a packet was recovered and he alongwith the packet was sent to the police post alongwith his staff to interrogate him lateron after arranging an interpreter, since he did not C C No. 43/12 CBI Vs. Devinder Saini Page no. 20 21 understand their language. Thereafter he reached the police post at about 8:30/9pm but without entering his office room left for patrolling in the presence of his staff and he had told them that he was going to the area. He stated that he used to conduct patrolling at that time as a matter of routine as there used to be lot of rush at the road leading to the bus stand and the railway station. He stated that during patrolling he came to know that CBI officials had raided his office and were manhandling his staff and were falsely implicating him. That lateron he obtained anticipatory bail and joined the investigation.
37 It is further submitted by the defence counsel that the accused has already been acquitted by the court of Sh Sanjeev Jain, Special Judge, NDPS, New Delhi vide judgment dated: 24.12.2012 Ex. DX-1, in the NDPS case registered against him vide FIR No. 101/07 dt. 05.10.07 by Delhi Police at the instance of CBI. He stated that the smack which was recovered from the Nigerian was planted upon him and the case under NDPS Act was registered after one year of 18.09.06.
38 Accused did not lead any evidence in his C C No. 43/12 CBI Vs. Devinder Saini Page no. 21 22 defence.
39 I have heard arguments addressed by Sh Hameed Ahmad, Ld. PP for CBI and Sh Sandeep Sharma, counsel for the accused.
40 Ld. PP has submitted that in the present case there is no direct evidence against the accused that he demanded and accepted bribe from the complainant ie PW 3 Smt Amina in the presence of PW12 Zarina, her sister, as they both have not supported the prosecution case and were declared hostile. It is submitted that the present case is based on circumstantial evidence that the accused was seen alighting from his yellow colour WagonR car and entering his office room in police post Sarai Kale Khan while holding off white colour polythene and after sometime he was seen escaping from there by PW13 Inspt Alok Kumar and PW 16 Inspt C K Sharma. It is submitted that accused himself has admitted his presence in the police post vide his statement U/s 313 Cr.PC, wherein he has stated that he left the police post in the evening hours and thereafter he went to Katwaria Sarai on receipt of secret information and apprehended a Nigerian and then returned to the police post. It is submitted that the accused has C C No. 43/12 CBI Vs. Devinder Saini Page no. 22 23 intentionally not disclosed the time when he returned to the police post, though he has admitted that he had returned and it is the same time when he has entered his office and transaction of bribe with the complainant had taken place. It is further submitted that the accused has not led any evidence that he had left for patrolling in the area.
41 It is also submitted that the accused had motive to seek bribe from the complainant, as he admitted that he had arrested the son of the complainant in case FIR No. 605/06 P S H N Din and now the complainant was interested for his bail and accused assured her in this regard, demanding bribe of Rs. One Lac which was then settled for Rs. 80,000/- and while accepting part payment of Rs. 20,000/- he gave her a paper slip Ex. PW6/DA wherein he had mentioned the name, address and telephone number of advocate A K Mishra directing her to contact him for the bail of her son.
42 It is further submitted that though the accused was not arrested at the spot nor the bribe amount was recovered but the conduct of the accused subsequent to the bribe transaction is relevant, as he escaped alongwith the bribe money C C No. 43/12 CBI Vs. Devinder Saini Page no. 23 24 from the spot. Further that the prosecution has proved vide the transcription Ex. PW 7/J that the accused had demanded and accepted the bribe from the complainant and in the same it is also found recorded that after the accused escaped from police post, the complainant uttered "Bhag Gya, Bhag Gya.". Besides, the PEW ie wash of the off white polythene lying on the office table of the accused and of DPW ie some papers lying in the drawer of his office table was taken in the colourless solution of sodium carbonate which turned into pink and as per the report of PW 15 V B Ramtake, expert witness, both these washes on chemical analysis tested positive for the presence of phenolphthalein and sodium carbonate. That the chemical analysis report proves that the accused had come in contact with the phenolphthalein powder. That the accused has admitted his handwriting of the paper slip Ex PW 6/DA which goes in favour of the prosecution. That the accused has failed to bring any evidence on record that the CBI officers PW 12 and PW 13 were inimical towards him and as such were out to implicate him falsely. It is submitted that corruption is a social evil and needs to be cured.
43 It is submitted that the prosecution through C C No. 43/12 CBI Vs. Devinder Saini Page no. 24 25 circumstantial evidence has proved on record that accused by misusing his official position had demanded and accepted bribe from the complainant PW 3 Amina for getting bail to her son Nafis in case FIR No. 605/06 PS H N Din and in view of the provision of Sec. 20 PC Act, l988, presumption has to be raised that he accepted the bribe as a motive or reward as mentioned in Sec. 7 of the Act unless it is proved contrary.
44 Ld. PP has relied upon the case of "State of U.P Versus Zakaullah decided by the Hon'ble Apex Court vide judgment dated: 12.12.1997, in support of his arguments.
45 On the other hand, Sh Sandeep Sharma, counsel for the accused has submitted that to convict the accused U/s 7 & 13(2) r/w Sec. 13(1)(d) of P C Act, the onus was on the prosecution to prove that the accused by misusing his official position had demanded and accepted bribe. The demand and acceptance is a sine qua non for proving a case under Prevention of Corruption Act. It is submitted that the prosecution has failed to prove by any cogent evidence that accused had raised demand for bribe and had accepted it from the complainant. That as C C No. 43/12 CBI Vs. Devinder Saini Page no. 25 26 per the complaint Ex. PW 3/A, the complainant PW 3 and her sister PW 12 Zarina had gone to PP Sarai Kale Khan on 15.9.06 and met SI Devinder Kumar, the chowki incharge where the accused demanded bribe of Rs. One Lac for her son getting bail in case FIR No. 605/06 P S H N Din and also threatened to falsely implicate Nazim, the son of PW 12. It is submitted that it is proved on record that on 15.9.06 the accused was on leave and as per his call record Ex. PW 2/B/ Ex. PW 9/D, he was not even in Delhi, so the contents of the compliant Ex PW 3/A are false and fabricated. That both PW 3 and PW 12 have not supported the case of the prosecution and were declared hostile. Further that accused has no motive to demand bribe, as he was no more concerned with the investigation of case FIR No 605/06 PS H N Din, as the investigation of the said case had been transferred to SI Manoj Kumar, PP Jangpura vide rukka itself and that in the absence of the accused, as per DD No. 29 Ex. DX, SI Manoj Kumar was working as chowki incharge PP Sarai Kale Khan for three days wef 15.09.06. It is submitted that there is every possibility of this case of mistaken identity that someone else had demanded bribe from the complainant but the C C No. 43/12 CBI Vs. Devinder Saini Page no. 26 27 accused was implicated, as the complainant admitted in her cross examination that she had gone to PP Jangpura where she was told that the incharge PP Jangpura would look after the work of PP Sarai Kale Khan.
46 It is further submitted that complainant too had a motive to falsely implicate the accused as her son was arrested by him in the case, referred above.
47 The defence counsel has further submitted that the prosecution has even failed to prove from the call record Ex.PW 2/F that the complainant was using mobile phone No. 9811925087 and had conversation with the accused therefrom. It is submitted that as per the record produced by PW2/PW 9 Sh Jyotish Moharana, the telephone No. 9811925087 was in the name of PW 8 Usman but he has denied that PW 3 was his bhabhi and he had given his mobile phone to her for use. It is submitted that the prosecution is relying upon the transcript Ex. PW 7/J of the alleged conversation between the accused and the complainant. However, the cassette Q-l, Ex. P-5 was not found audible when played in the court and thus the prosecution has failed to prove that the transcription Ex. PW 7/J was the true version of C C No. 43/12 CBI Vs. Devinder Saini Page no. 27 28 any such recorded conversation and the conversation was between the complainant and the accused. It is submitted that it has come through the testimony of witnesses that cassette Q-l was never audible.
48 Regarding the wash of off white colour polythene Ex.P-9 and white papers Ex.P-10 to Ex. P-14 turning the colour of sodium carbonate to pink, it is submitted there is no evidence that the accused who had kept the alleged bribe money under the off white colour polythene or on the papers in the drawer of his office table, as PW 3 and PW 12 have not supported the case of the prosecution to this effect. It is submitted that as per cross examination of PW 11, the raiding team had carried phenolphthalein with them so even the washes, referred above, were planted upon the accused.
49 Regarding the paper slip Ex. PW 6/DA, the counsel for the accused has submitted that the said paper slip was given by the accused to PW 6 ASI Ganga Prakash for bringing a book from advocate Sh A K Mishra and the same was brought back alongwith the book and the paper slip was not given to PW 3 Amina. Further that PW 3 also never testified in this regard nor the paper slip was handed over by her to C C No. 43/12 CBI Vs. Devinder Saini Page no. 28 29 the CBI but even as per the case of the prosecution it was seized from the office table of the chowki incharge.
50 The counsel for the accused has also filed written submissions as part of arguments and shall be discussed at the appropriate stage.
51 It is further submitted that the prosecution has failed to prove its case against the accused by direct or circumstantial evidence, hence the accused deserves to be acquitted.
52 The defence counsel has relied upon following Judgments in support of his arguments ie:
''1 Rahman Vs The State of UP reported in AIR 1972 Supreme Court 110, 2 Banarsi Dass Vs State of Haryana reported in III(2010)SLT 91 3 Ganapathi Sanya Naik Vs State of Karnataka reported in AIR 2007 Supreme Court 3213 4 Ramdas Vs State of Maharashtra reported in 1996 CRI.L J 1848 C C No. 43/12 CBI Vs. Devinder Saini Page no. 29 30 5 G V Nanjundiah Vs State ( Delhi Administration) reported in 1988 CRL. LJ 152.
6 State of Andhra Pradesh Vs T. Venkateshwara Rao reported in 2004(1) JCC 385 .''
53 After hearing the arguments, I have gone through the material on record carefully.
Section 7 of the PC Act provides as under :
"Public Servant taking gratification other than legal remuneration in respect of an official act - Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central C C No. 43/12 CBI Vs. Devinder Saini Page no. 30 31 Government of any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government Company referred to in clause (c) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine."
In Dalpat Singh Vs. State of Rajasthan, AIR 1969 SC 17 it was held that the following requirement have to be satisfied to attract Sec. 7 of the Prevention of Corruption Act:
1. the accused at the time of the offence was, or expected to be a public servant;
2. that he accepted, or obtained, or agreed to accept, or attempted to obtain from some person a gratification;
3. that such gratification was not a legal remuneration due to him; and,
4. that he accepted the gratification in question as a motive or reward, for:
(a) doing or forbearing to do an official act, or
(b) showing, or forbearing to show favour or disfavour to some one in the exercise of his official functions; or C C No. 43/12 CBI Vs. Devinder Saini Page no. 31 32
(c) rendering or attempting to render, any service or disservice to some one, with the Central or any State Government or Parliament or the Legislature of any State or with any public servant.
The prosecution is required to prove the above ingredients by way of acceptable and clinching evidence.
In State of Maharasthra Vs. Dnyaneshwar Laxman Rao Wankhede VI (2009) SLT 439, the apex court while discussing the ingredients of offence u/s 7 of PC Act inter alia held as under :
"Indisputably, the demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of the Act. For arriving at the conclusion as to whether all the ingredients of an offence, viz., demand, acceptance and recovery of the amount of illegal gratification have been satisfied or not, the Court must take into consideration the facts and circumstances brought on the record in their entirety. For the said purpose, indisputably, the presumptive evidence, as is laid down in Section 20 of the Act, must also be taken into consideration but then in respect thereof, it is trite, the standard of burden of proof on the accused vis-a-vis the standard of burden of proof on the prosecution would differ. Before, however, the C C No. 43/12 CBI Vs. Devinder Saini Page no. 32 33 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. Even 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."
In Surajmal Vs. State (Delhi Administration) (1979) 4 SCC 725, it was held that :
"mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe."
54 To constitute an offence U/s 7 of P C Act, it is necessary for the prosecution to prove that there was demand of money and the same was voluntarily accepted by the accused for doing a favour to the complainant in discharge of his official duties. Demand and acceptance of bribe is sine qua non to C C No. 43/12 CBI Vs. Devinder Saini Page no. 33 34 the conviction of the accused. Presumption U/s 20 of P C Act can only be drawn against accused, when prosecution proves by clinching evidence that accused demanded and accepted bribe from the complainant, in discharge of his official duties.
55 In the light of above principles, we may examine the evidence on record with specific emphasis to the demand and acceptance of illegal gratification by accused for helping the complainant in getting bail to her son and not to implicate son- inlaw of her sister. In the present case, the material witnesses regarding demand and acceptance are PW3 Amina, PW 12 Zarina. The prosecution received death blow from the complainant PW 3 and her sister PW 12 Zarina as they both turned hostile and did not support the case of the prosecution. It is the case of the prosecution that as per complaint Ex. PW 3/A, the accused SI Devinder Saini was posted as incharge police post Sarai Kale Khan and on 15.9.06 the complainant PW 3 alongwith her sister PW 12 had met him in the police post Sarai Kale Khan where he had demanded Rs. One Lac for getting the bail of the son of the complainant in case FIR No 605/06 P S H N Din and at the same time threatened to get Nazim, the C C No. 43/12 CBI Vs. Devinder Saini Page no. 34 35 son of PW 12 falsely implicated. PW 3 did not testify at all that on 15.9.06 she alongwith her sister had visited police post Kale Khan and had met the accused SI Devinder Saini nor she testified that at that time the accused had demanded Rs. One Lac to help her. She testified that on 18.9.06 she had gone to office of CBI where she met SP CBI and told him about the excesses being committed by police post incharge Sh Devinder Saini on them and also that firstly her son was detained and thereafter her son in law was also involved in a case of another PS. She further told the SP that accused Davinder had told her that he would remove the name of her son in law Nazim from the case on being paid Rs. One Lac. She told the accused that she was not in a position to give Rs.One Lac and thereafter things were settled for Rs. 80,000/-. She further deposed that SP summoned one Inspt by the name of Mr Dahiya, who prepared the papers and obtained her thumb impression. During her chief examination she was shown complaint Ex. PW 3/A and testified that it was the same which was recorded in her presence and was bearing her thumb impression. She deposed about the pre trap proceedings. She further deposed that she alongwith C C No. 43/12 CBI Vs. Devinder Saini Page no. 35 36 her sister and the trap team reached Sarai Kale Khan where she was informed that incharge PP was not present there and then she made a telephone call to him from the STD booth and was asked by the incharge PP to wait for half an hour. She further stated that a vehicle came to the police post and incharge police post alighted from the said vehicle in civil dress, both the sisters peeped inside the room in which they used to meet the incharge and he opened the door and made them sit. She further deposed about the transaction of bribe between her and the police post incharge and that he had kept the same on the table and thereafter in the drawer of the table. Thereafter he kept the money in his pocket and asked him as to where his sister had gone. She told him that she had gone for smoking. After that incharge police post moved out and she followed him.
56 During the course of her testimony, she testified that the said incharge police post was not present in the court. She failed to identify the accused as the incharge police post who had demanded and accepted bribe from her. Consequently, she was declared hostile by the prosecution and was cross examined at length. Even during her cross C C No. 43/12 CBI Vs. Devinder Saini Page no. 36 37 examination, the complainant continued to remain hostile and did not identify the accused as the chowki incharge. To the contrary, she testified that she had seen accused Devinder Saini for the first time in the court on the last date of hearing.
57 PW 12 Zarina, the sister of complainant PW 3 also did not support the case of the prosecution that the accused Devinder Saini had demanded and accepted bribe from the complainant in her presence. Rather she neither testified that she had accompanied the complainant to the office of incharge police post Sarai Kale Khan on 15.9.06 or on 18.9.06 alongwith the trap team. She was declared hostile by the prosecution and was cross examined at length by Ld. PP but she continued to remain hostile, though she admitted that on 18.9.06 she had accompanied her sister ie PW 3 the complainant to the office of CBI, where her sister had lodged complaint. She denied that her sister had complained against SI Devinder Saini of PP Sarai Kale Khan. She admitted it to be correct that bribe was demanded from her sister for the bail of her son but testified that she did not know who had demanded the bribe except that the bribe was demanded by police official of PP Jangpura. She denied it for want of C C No. 43/12 CBI Vs. Devinder Saini Page no. 37 38 knowledge that the person who had demanded bribe had threatened to falsely implicate her son Nazim or that the amount of bribe demanded was Rs. One Lac. In cross examination by Ld. PP, she admitted that her sister had told her that she had arranged Rs. 20,000/- for bribe but denied that these currency notes were treated in her presence or any other proceedings relating to the same were conducted by the CBI or that two independent witnesses namely Rajbir and Ashok Kumar were also joined in the trap team. She categorically denied that she had accompanied her sister for giving bribe to the concerned person. She denied that her sister had informed her that she had given bribe of Rs. 20,000/- to one Devinder and he kept the same in a polythene and thereafter on the drawer of the table on some white paper. She stated that she is not aware of, if after the bribe transaction that person had gone somewhere. She denied the case of the prosecution in toto. She also denied that any post trap proceedings were conducted in her presence. As such, both PW 3 and PW 12 have denied that there was demand and acceptance of bribe by accused Devinder Saini.
58 Here it is important to observe that as per the C C No. 43/12 CBI Vs. Devinder Saini Page no. 38 39 complaint Ex PW 3/A, the case of the prosecution is that there was demand of bribe by Devinder Kumar, chowki incharge PP Sarai Kale Khan for getting bail to the son of the complainant and for not implicating falsely Nazim the son of her sister. However, the complainant PW 3 in her chief examination did not testify of any such assurance given by the incharge police post Sarai Kale Khan for the bail of her son but she only deposed that the police post incharge had first detained her son and subsequently her son in law was involved in a case of another PS. At the same time, PW 12 also did not testify that there was any assurance given by PP incharge to her sister PW 3 that he would get the bail to her son nor she deposed that there was any threat to Nazim, her son in law to be falsely implicated. It is also observed that though in the complaint Ex. PW 3/A it is mentioned that PW 3 and PW 12 had met the accused Devinder Saini in his office and there he had raised demand for illegal gratification. However, the plea of the defence counsel, that there was no possibility of the accused having demanded bribe from the complainant on that day, as he was on leave from his office for three days is more plausible and this fact is proved on record by the C C No. 43/12 CBI Vs. Devinder Saini Page no. 39 40 accused vide document Ex. DX ie the attested copy of DD No 29 PP Sarai Kale Khan. As per the same, his casual leave for three days was sanctioned by ACP Lajpat Nagar and it is mentioned in the said DD itself that in the absence of SI Devinder Saini, the work of PP Sarai Kale Khan would be looked after by I/C PP Manoj Kumar IC/PP Jangpura. Even PW 6 ASI Ganga Prakash has testified that accused Devinder Saini was on leave from 14.9.06 to 18.9.06 and in his absence SI Manoj Kumar was working as chowki incharge of the said PP. 59 As argued by the defence counsel, it is proved vide the testimony of PW 2/PW9 Sh. Jyotish Moharana that as per the call record of mobile phone No. 9811113030 in the name of Devinder Saini ie the accused , Ex. PW 9/D, this mobile phone was operating outside Delhi from 15.9.06 from 09:52:43am upto on 17.09.06 till 22:07:16hours and thus there was no occasion for the complainant and her sister to have met SI Devinder Kumar in the PP Sarai Kale Khan on 15.09.06 as alleged in complaint Ex. PW 3/A. Moreover, the complainant and her sister have nowhere testified in their examination in chief that on 15.09.06 they had met accused Devinder Saini in the PP Sarai Kale Khan and he had raised demand of illegal C C No. 43/12 CBI Vs. Devinder Saini Page no. 40 41 gratification of Rs. One Lac. It is observed that PW 3 and PW 12 were declared hostile and were cross examined at length by Ld. PP but PW 3 was neither confronted with the complaint Ex. PW 3/A where this fact is found recorded that she alongwith her sister had met the accused Devinder Saini in the PP Sarai Kale Khan on 15.09.06 and he demanded bribe. Similarly PW 12 was also not put any such question to prove that the demand of bribe was made by the accused from the complainant in the presence of her sister PW 12 in the police post itself on 15.09.06. As such, prosecution has failed to prove that accused Devinder Saini made any demand of bribe from complainant on 15.09.06.
60 It is further observed that during the cross examination by Ld. PP, PW 3 categorically denied that accused Devinder Saini present in Court had demanded bribe and claimed that she had seen him first time in the court. It is also claimed by accused in his statement U/s. 313 Cr PC that at the time of the alleged incident he was on patrolling and was not present in the police post. PW 5 HC Dinesh Tyagi has corroborated this defence as he categorically stated in his cross examination that when the CBI visited the C C No. 43/12 CBI Vs. Devinder Saini Page no. 41 42 police post, the accused was not in the police post. The prosecution did not question this witness as to whether the accused had arrived in the police post during the presence of CBI team. PW 6 ASI Ganga Prakash, who was also posted at the relevant time at PP Sarai Kale Khan, in his cross examination testified that on 18.9.06 accused Devinder Saini met him in PP at 08:45/9pm( wrongly typed as AM) and he was taking round in the area. It is further testified that SI Devinder Saini went outside PP for patrolling and after 10 minutes PW 6 also left the PP since his child was not well and he was allowed by accused Devinder Saini to leave. He testified that no CBI official or raiding team had arrived by that time in the PP. Thus the presence of the accused in the PP Sarai Kale Khan at the time of raid or thereafter during the presence of CBI officials have not been proved by the prosecution. 61 PW 3 during her cross examination by Ld. PP testified that she was illiterate and was not in a position to record her complaint. She admitted that incharge police post SI Devinder Saini had arrested her son Nafis alongwith others in case FIR No 605/06 PS H N Din. She stated that on 18.9.06 the person to whom she had to hand over money did not come but C C No. 43/12 CBI Vs. Devinder Saini Page no. 42 43 some other person came and asked as to why they were sitting there and she told him that IO of Jangpura had asked them to come there. She stated that there was no talk of bail of her son with the said person who met them at the time of transaction. In cross examination by defence, she categorically stated that she visited court 15/16 times for her evidence and was tutored by public prosecutor. She also deposed of coming in contact with police official of PP Jangpura at Patiala House, who used to attend bail matter of her son and that he was the IO from PP Jangpura. She stated that her son was not granted bail due to the opposition by the said police official and in this connection she and her sister had met him at Patiala House on 15th of the month. She stated that they were asked to meet him at PP Jangpura where she alongwith her sister and her counsel had visited but were informed that said IO would be now available at police post Sarai Kale Khan as he had started sitting there and were advised not to go there empty handed but with some money. It is thereafter, she alongwith her advocate approached CBI officer Mr Sharma. She claimed that in the CBI office she did not disclose the name of the incharge police post Sarai C C No. 43/12 CBI Vs. Devinder Saini Page no. 43 44 Kale Khan but told them that the concerned police official was sitting at PP Sarai Kale Khan as she had got this information from PP Jangpura. The said statement of PW 3 seems plausible that there was demand of bribe by some police official of PP Jangpura, as admittedly accused Devinder Saini was not the IO of case FIR No. 605/06, referred above and had no control over the investigation of this case and it is also proven fact that in the absence of accused from his office for three days wef 15.09.06 while he was on leave, SI Manoj Kumar of PP Jangpura looked after the work of PP Sarai Kale Khan. It is also admitted fact that complaint Ex. PW 3/A was not written by PW 3 being illiterate but was written by a CBI official Mr Dahiya who has not been produced in the witness box. It is only Mr Dahiya who could explain whether the complainant had disclosed to him the name of SI Devinder Saini or that after verifying from the police post Sarai Kale Khan he had himself mentioned in the complaint Ex. PW 3/A the name of accused SI Devinder Saini being incharge of PP Sarai Kale Khan. There is every possibility that this is a case of mistaken identity and there is no clear cut evidence on record that it is the accused SI Devinder Saini who had C C No. 43/12 CBI Vs. Devinder Saini Page no. 44 45 demanded and accepted bribe illegally from the complaint.
62 It is the case of the prosecution that complainant Amina had contacted the accused from mobile No. 9811925087 which belonged to his brother- in- law Usman. However, though the prosecution has proved on record vide the testimony of PW 2/PW9 Jyotish Moharana that mobile connection was in the name of Usman. However, no suggestion was given to PW 8 Usman that he was owning mobile No. 9811925087 and the said mobile phone was being in use by the complainant. It is observed that PW 8 Usman categorically denied the case of the prosecution that PW 3 was her Bhabhi and she had been using his mobile phone. As such, prosecution has failed to produce any evidence that the mobile phone No. 9811925087 was being used by the complainant. Perusal of the cross examination of PW8 reveals that it is he who had given his mobile number to the accused when he was chowki incharge of police post Sarai Kale Khan and he used to assist the accused in arresting the pick pocketers etc and acted as informer for the accused. He also testified that he used to have frequent conversation with the accused on telephone C C No. 43/12 CBI Vs. Devinder Saini Page no. 45 46 and even on the day when CBI raided the police post there was telephonic conversation between the two. He stated in his cross examination that on the day of the incident he had spoken to the accused for less than a minute and accused asked him to come to police post, where he reached at about 9/10pm but the accused was not present there. In the police post his mobile phone was snatched by some person who was in civil dress and that he was not aware of that they were from CBI. That he was made to sit at the police post for about an hour and thereafter he was let off after interrogation. He was re-examined by the public prosecutor for CBI and testified that he was called to the police post by the accused as a thief was at large. He further stated that he did not make any complaint that his telephone was snatched and he gave the explanation that except the accused he did not know anybody else and also that after about 45 minutes his mobile phone was returned.
63 It is also observed that neither PW 3 Amina in her complaint Ex. PW 3/A nor in her testimony deposed about any mobile phone being used by her for giving call to accused nor she claimed that the mobile phone No. 9811925087 was of PW 8 Umsan and was given to C C No. 43/12 CBI Vs. Devinder Saini Page no. 46 47 her for use and that Usman was her brother-in-aw. To the contrary, PW 3 Amina in her chief examination deposed that she had made call to the chowki incharge from STD Booth. So the prosecution has failed to prove that the complainant was in touch with accused Davinder Saini from mobile phone No. 9811925087.
64 Both PW 7 Ashok Kumar and PW 11 Rajbir did not depose that they had seen the accused present in PP Sarai Kale Khan during trap proceedings. PW 7 testified that after 3 /4 months of the incident he was called to CBI office where he was told that accused was Devinder Saini, who was present there alongwith PW 17 D. D Sharma, PW 11 Rajbir and both ladies ie PW 3 and PW 12. However, PW 7 was not declared hostile by the prosecution nor he was suggested that he had seen the accused arriving in the PP in yellow WagonR car on 18.09.06. On the other hand, though PW 11 was declared hostile and was cross examined by Ld. PP but he denied the suggestion that 10 minutes after PW 3 Amina went to the PP, one yellow colour car entered the chowki premises and that it was driven by the accused present in court and that he was carrying off white colour polythene bag and went towards the room of chowki incharge. PW 11 denied having made any C C No. 43/12 CBI Vs. Devinder Saini Page no. 47 48 such statement to the CBI. He also denied that he had seen the accused coming out of his room following by the complainant towards Buses entry gate. The only witnesses who deposed that it is accused Devinder Saini who arrived at the PP in yellow WagonR car and went to the room of chowki incharge are PW 13 Inspt Alok Kumar and PW16 Inspt C K Sharma. However, in the absence of any support given by the complainant PW 3 and other material witnesses, their testimony would serve no purpose as PW 13 and PW 16 are neither witnesses to the demand and acceptance of bribe by the accused from PW 3 nor the accused was apprehended at the spot nor recovery of bribe amount was effected.
65 CBI has heavily relied upon the transcription Ex PW 7/J of the recorded conversation between the accused and the complainant at the spot during the trap proceedings. However, the transcription Ex PW 7/J can only be read against the accused, if the prosecution had succeeded in playing in court the cassette Ex.Q-1 in which the said conversation was allegedly recorded. However, in the present case, cassette Q-1 Ex. P-5 which was given mark Q-1(A) by PW 14 the expert witness at the time of comparison C C No. 43/12 CBI Vs. Devinder Saini Page no. 48 49 with the specimen voice of the accused , was found not audible when it was played in the court. As such, the court had no opportunity to hear the conversation between the complainant and the accused, if any, recorded in the said cassette and to compare the same with the transcription Ex/ PW 7/J. Besides, there is ample evidence on record through the testimony of PW 3, PW 7, PW 10, PW 11 and PW 12 that the cassette Q-1 Ex. P-5 was not audible even when it was played at the spot of trap. Even IO of the case Inspt D D Sharma PW 17 stated in his cross examination that the said cassette contained disturbance and was not clearly audible during the investigation. The question arises, if the cassette was not audible, then how the transcription Ex PW 7/J was prepared and how and with what recorded conversation the specimen voice of the accused was compared and tallied. Thus, in such circumstances, even the report Ex. PW 14/B of voice identification does not inspire credence.
66 CBI has also heavily relied upon the proven fact that the colourless solution of sodium carbonate changed its colour into pink upon dipping the off white colour polythene Ex. P-9 and papers Ex. P-10 to P14 recovered from the office of accused at PP Sarai Kale C C No. 43/12 CBI Vs. Devinder Saini Page no. 49 50 Khan. However, the same is of no significance in the absence of cogent and credit worthy evidence regarding demand and acceptance of bribe by the accused. Moreover, PW 11 Rajbir in his cross examination testified that treating powder was carried by the CBI to the spot alongwith other articles. Thus, the possibility of use of said powder on the exhibits P-9 and P-10 to P-14 cannot be ruled out. Though CBI officers PW 13 and PW 16 deposed that it is the accused who was seen carrying off white polythene Ex.P-9 to his room which was lateron found containing smack, but PW 17 the IO of the case contradicted their version and deposed during cross examination by the defence that some Heroin was recovered in a polythene from the house of the accused on the night of 18.9.06, when he searched the same in the presence of independent witnesses ie PW 7 and PW
11. At the same time, PW 7 and PW 11 did not depose any such fact that they had joined investigation PW 17 on the night of 18.9.06. Hence, there are material contradictions in the testimony of the witnesses which create doubt about the truthfulness of the case of the prosecution even with regard to the taking of the wash of the exhibits P-9, P-10 to P-14.
C C No. 43/12 CBI Vs. Devinder Saini Page no. 50 51 67 The presence of both the independent witnesses at the spot is also doubtful, as IO PW 17 claimed that PW 7 and PW 11 had joined him in the investigation of this case on the night of 18.9.06 as referred above and were present alongwith him at the time of house search of the accused. Whereas, both PW 7 and PW 11 testified that they remained at the spot till next morning. It is the case of the prosecution that all post trap proceedings were conducted in the presence of PW 7 and PW 11 but both these witnesses stated that they were made to sit in another room and next morning they were asked to sign on the documents which were already prepared. PW 11 stated that he was not aware of what proceedings were carried out by the CBI in the room of chowki incharge. Thus, it is doubtful that both these witnesses were present at the spot during trap and post trap proceedings.
68 The CBI has also relied upon paper slip Ex PW 6/DA to prove its case against the accused on the ground that as per the report Ex PA of the handwriting expert, the said paper slip was found to be in the handwriting of the accused whereupon he had mentioned the name, chamber No and mobile C C No. 43/12 CBI Vs. Devinder Saini Page no. 51 52 number of advocate A K Mishra and at the time he accepted bribe, he gave paper slip to PW 3 and told her to meet the said advocate. However, it is seen that none of the independent witnesses, particularly, PW 3 and PW 12 testified during their examination in chief that accused had given any such paper slip to PW 3 to contact advocate Sh A K Mishra. PW 3 during her cross examination by Ld. PP denied that the said paper slip was handed over to her by the person to whom she had given the bribe. No suggestion was given to her that the said paper slip was given to her by the accused Devinder Saini. So far PW 12 is concerned, no question in this regard was put to her during her cross examination by Ld. PP. Even PW 7 and PW 11 both the independent witnesses did not testify that the paper slip Ex. PW 6/DA was handed over by PW 3 to the CBI at the spot. In such circumstances, though admittedly paper slip Ex. PW 6/DA is in the handwriting of the accused but there is no evidence that it was given by the accused to PW 3 during alleged transaction of bribe. The accused in his statement U/s 313 Cr PC has admitted that the paper slip Ex. PW 6/DA is in his own handwriting. However, he claimed hat he had not C C No. 43/12 CBI Vs. Devinder Saini Page no. 52 53 given the same to PW 3 but had given to PW 6 Ganga Prakash, days prior to the alleged incident for bringing a book from the concerned advocate and he had already given a telephone call to Sh A K Mishra to give a particular book to the ASI and this paper slip was lying in the book itself on his office table which was seized by the CBI. The said statement of the accused finds corroboration from the testimony of PW 6 ASI Ganga Prakash also. Thus, the prosecution has failed to prove that the paper slip Ex. PW 6/DA was given by the accused to PW 3.
69 In view of the above discussion, the CBI has miserably failed to prove its case against the accused. The quality of evidence produced by the CBI is weak in nature and not sufficient to invoke statutory presumption U/s. 20 of PC Act.
In Banarsi Dass Vs. State, 2010 CrLJ 2419 and Gopal Krishan Vs. State, 18 (1980) DLT 11, it was held that mere recovery of bribe money from the accused was not sufficient to prove offence and that no presumption of guilt should be raised under the Act in the absence of proof of demand and acceptance of money by the accused as a motive or reward. It is C C No. 43/12 CBI Vs. Devinder Saini Page no. 53 54 pertinent to mention here that in the present case even bribe money has not been recovered from the possession of the accused. Reliance can also be placed upon M. Narsinga Rao Vs. State of A.P., 2001 (1) SCC 691.
70 So far the present case is concerned, neither the accused was arrested at the spot nor recovery of bribe amount was effected. Besides, there is no evidence that PW 3 had actually given bribe money to accused or anybody else. Admittedly, the search of PW 3 after trap was not conducted to find out if she had parted with the bribe money.
71 In view of the above discussion, accused Devinder Saini is acquitted of the charges U/s. 7 & 13(2) r/w Sec. 13(1)(d) of P C Act, 1988 in RC No. DAI/2006/A0037/CBI/ACB/ND.
72 Accused is on bail. Surety is discharged. Bail bond/ surety bond cancelled. Original documents, if any, on record may be returned to him against proper acknowledgement.
73 In terms of Section 437(A) Cr. PC, accused Devinder Saini is directed to furnish bail bond in the sum of Rs.10,000/- with one surety in the like amount to appear before the Hon'ble High Court as and when C C No. 43/12 CBI Vs. Devinder Saini Page no. 54 55 court issues notice in respect of any appeal or petition filed against this judgment. Such bail bond shall be in force for 6 months.
File be consigned to the Record Room.
Announced in the open Ravinder Kaur court on 31.08.2012 Special Judge ( PC Act) CBI-03,Saket Courts, New Delhi. C C No. 43/12 CBI Vs. Devinder Saini Page no. 55