Delhi District Court
Cbi vs J.S Sehrawat Etc. on 30 November, 2013
CBI vs J.S Sehrawat etc.
IN THE COURT OF SH. GURVINDER PAL SINGH,
SPECIAL JUDGE (PC ACT) (CBI)6,
PATIALA HOUSE COURT, NEW DELHI
CC No. 20/12 (Old CC No. 07/12)
RC No. AC2/2009/A0001/SPE/CBI/NEW DELHI
U/Section 7, 13 (2) read with Section 13 (1)(d) of PC Act &
13 (2) read with Section 13 (1)(a) of PC Act; 218/466 IPC
CBI vs. J.S Sehrawat etc.
Unique ID No.: 02403R0494212009
Central Bureau of Investigation
vs.
Jaibeer Singh Sehrawat S/o Sh Sahab Singh,
R/o Flat No. 61, Pocket 94, Sector24, Rohini, New Delhi110085
Date of FIR : 20/05/2009
Date of filing of Chargesheet : 23/12/2009
Case received by transfer on : 04/07/2012
Arguments concluded on : 13/11/2013
Date of Judgment : 30/11/2013
Appearances
For prosecution : Sh V.K Ojha, Ld. Public Prosecutor.
For accused : Sh Anil Kumar, Ld. Counsel.
JUDGMENT
BRIEF RESUME OF PROSECUTION CASE Accused J.S Sehrawat (A1) had been sent up to face trial having allegedly prepared incorrect official records; committed forgery in the booking file of unauthorized construction in property number RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 1/84 CBI vs J.S Sehrawat etc. 2237, Shadi Khampur, Ranjit Nagar, Karol Bagh, New Delhi of Smt Bimla Devi (PW5)/Ms. Alka Verma (PW3) and shifting of its booking to the adjacent property of Sh. Maha Singh Chauhan (PW10), as a result of which demolition action was taken on the adjacent property of Sh Maha Singh Chauhan (PW10). Besides that A1 is alleged to have also demanded and accepted illegal gratification of (1) Rs 50,000/ from Smt Bimla Devi (PW5)/ Ms. Alka Verma (PW3) and (2) Rs 1.25 lacs from Sh Jitender Akarnia @ Gullish (PW2) as a motive or reward for protecting the illegal constructions in properties of PW5/PW3 and PW10 respectively by abusing his official position of Junior Engineer in MCD, Karol Bagh Zone, Delhi by corrupt and illegal means during the period from November 2008 to January 2009. Sh Jitender Akarnia @ Gullish (initially accused and on turning approver, then PW2) and Ms. Alka Verma (initially accused and on turning approver, then PW3) were also sent up to face trial for allegedly abetting A1, a public servant, to accept illegal gratification. Investigation was concluded, submitting that A1 prima facie committed offences punishable under Section 218 and 466 of IPC; Section 7, 13 (2) read with Section 13(1)(a), 13(2) read with Section 13(1)(d) of Prevention of Corruption Act 1988 while accused Jitender Akarnia @ Gullish and Ms. Alka Verma prima facie committed offence under Section 12 of Prevention of Corruption Act, 1988 by abetting A1, a public servant, to accept illegal gratification. Charge sheet also finds mention that investigation did not bring out any Mens rea against AE S.K Lakra, JE T.C Meena and Beldars Birender Pal and Ashok Kumar.
RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 2/84 CBI vs J.S Sehrawat etc. Sanction for prosecution of A1 JE accorded by competent authority under Section 19 of Prevention of Corruption Act 1988 was filed with chargesheet.
2. Applications dated 18/12/2009 were filed by CBI seeking grant of pardon to accused Ms. Alka Verma and accused Jitender Akarnia @ Gullish. Charge sheet was filed on 23/12/2009. Cognizance was taken on 30/01/2010 by my Ld. Predecessor. A1, accused Jitender Akarnia and accused Alka Verma were summoned. Vide order dated 23/01/2010, the aforesaid applications dated 18/12/2009 of CBI seeking grant of pardon to accused Ms. Alka Verma and accused Jitender Akarnia @ Gullish were dismissed by my Ld. Predecessor. Summoned accused were enlarged on bail on their appearance on 24/02/2010. Requirements under Section 207 Cr.P.C were complied with. In terms of order dated 21/05/2010 of Hon'ble Mr. Justice S.N Aggarwal in Criminal Revision No. 246/2010, above referred order dated 23/01/2010 of my Ld. Predecessor was set aside and pardon was accorded to accused Ms. Alka Verma and accused Jitender Akarnia @ Gullish. Accordingly, vide order dated 17/07/2010 of my Ld. Predecessor, pardon was granted to accused Ms. Alka Verma and accused Jitender Akarnia @ Gullish and their bail bonds were cancelled and respective sureties were discharged.
CHARGE
3. Charge for offences under Sections [1] 7 of Prevention of RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 3/84 CBI vs J.S Sehrawat etc. Corruption Act 1988; [2] 13 (2) read with Section 13 (1)(d) of Prevention of Corruption Act,1988; [3] 13 (2) read with Section 13 (1)(a) of Prevention of Corruption Act,1988; [4] 218 of IPC and [5] 466 of IPC was framed on 04/01/2012 by my Ld. Predecessor against A1 to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
4. To connect A1 with the offences charged, prosecution has examined in all 44 witnesses namely Sh K.S Mehra (PW1); Sh Jitender Akarnia (PW2); Ms. Alka Verma (PW3); Constable Gyanender Singh (PW4); Smt Bimla Devi (PW5); Sh T. Nagesh (PW6); Sh S.K. Chauhan (PW7); Sh. Shahbaz Anwar (PW8); Sh Mahesh Chandra (PW9); Sh Maha Singh Chauhan (PW10); Sh H.S Kashyap (PW11); Sh Pawan Kumar (PW12); Sh Manoj Kumar Verma (PW13); Sh Pramod Chauhan (PW14); Sh Sunil Khatri (PW15); Sh Hansraj Meena (PW16); Sh Arvind Singh (PW17); Sh M.C Kashyap (PW18); Sh R.K Singh (PW19); Sh Gulshan Kumar (PW20); Sh Rajesh Kumar (PW21); Sh Hansraj (PW22); Sh R.K Bharti (PW23); Sh R.S Rana (PW24); Sh Devender Kumar Jangala, ACMM (PW25); Sh Bindha Deen (PW26); Sh Magan Singh Shekhawat (PW27); Sh Ajay Kumar Verma (PW28); Sh L.N Arora (PW29); Sh Rakesh Soni (PW30); Sh Ganesh Barman (PW31); Sh Krishna Sastry Pendyala (PW32); Sh A.D Tiwari (PW33); Sh Upendra Rawat (PW34); Sh S.S Yadav (PW35); Sh Sandeep Tanwar (PW36); Sh Ashok Kumar (PW37); Inspector S.K Sharma (PW38); Sh Amitosh RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 4/84 CBI vs J.S Sehrawat etc. Kumar (PW39); Inspector Arun Rawat (PW40); Sh B.L Jindal (PW41); Sh Sher Singh Mittal (PW42); Deputy SP V.M Mittal (PW43) and Sh Sunil Kumar (PW44).
STATEMENT OF ACCUSED
5. Thereafter accused (A1) was examined under Section 313 Cr.P.C. All incriminating material in evidence was put to A1. A1 pleaded innocence and false implication. A1 further stated that the sanction was granted mechanically without application of mind; it was an invalid sanction granted by the incompetent authority. A1 stated that PW2 and PW3 gave statements u/s 164 Cr.P.C before Magistrate under pressure and promise of CBI and these were false statements. A1 further stated that he had no talk with PW36 and had not gone for any demolition at house of PW 3. A1 stated that he did not know about any voice sample of PW 3 and other persons; however, he had not given any specimen voice as alleged voluntarily vide alleged memorandum Ex. PW 17/D and this document was fabricated and his signatures were obtained on blank papers. A1 stated that he did not have any conversation with PW 3, PW36 Sandeep Tanwar and JE Meena. A1 admitted that he was working as JE in Karol Bagh Zone in 2008 and 2009; in June 2009 A1 left the Karol Bagh Zone, MCD on transfer to MCD Headquarters at Town Hall, Delhi. A1 stated that the name of the property owner can be required to be mentioned on the sketch of the property to be booked, depending upon the facts and circumstances of particular case. A1 stated RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 5/84 CBI vs J.S Sehrawat etc. that the duration of visit of the JE in his area depends upon the workload and also the Wards under his charge and on other facts and circumstances. A1 stated that the demolition action is taken as per DMC Act and the circulars issued from time to time. A1 stated that he was not aware how mobile phone connections were got issued by Sh. Sunil Khatri but he never used mobile no. 9818802431. A1 stated that the statements u/s 164 Cr.P.C of PW6, PW2 and PW3 were recorded without following the due process of law and contained incorrect facts. A1 stated that the report Ex PW32/A is incorrect and is not based on any reasoning and is based on the manipulated instruments and data. A1 stated that search was conducted at his residence and CBI seized articles therefrom; mobile number 9818802431 seized therefrom was not his but was of PW15 Sh. Sunil Khatri and he told this to the CBI officials but nobody listened to him. A1 stated the investigation was unfair; the CDs and many other documents were fabricated, manipulated to obtain desired results from the experts, which experts were even influenced; incorrect and false statements were recorded in the course of investigation by IO; the witnesses were put under pressure and coercion due to which they gave statements u/s 164 Cr. PC; the chargesheet was filed on the basis of unfair and incorrect investigation and without any evidence. A1 stated that he had never dealt with matter of unauthorized construction of property no. 2237/3, Shadi Khampur and had booked property no. 2237, Shadi Khampur of Sanjay.
RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 6/84 CBI vs J.S Sehrawat etc.
6. A1 stated that the name of the owner or occupant can be added later on also if it is ascertained later on in the show cause notice when it is not so mentioned at the time of its issuance. As per A1, the mention of the name of the owner or occupant did not change the status of the property in question which is booked. A1 denied the fact that name of owner was not mentioned in the FIR Ex PW6/A (dated 27/10/2008) when the file was received by PW6 at his seat after issuance of the said FIR. A1 denied that when after passing of demolition order, when the file (M141/09) came back to the seat of OI, then he (A1) had told that name of owner was now known, so OI PW12 Sh Pawan asked PW6 to make entry of name of owner in the Misal Band Register and when at that time A1 gave back said file in OI Section on 11/12/2008 containing FIR Ex PW6/A and all related documents, then the name of owner was written in FIR Ex PW6/A (at portion Q4) and in show cause notice (Ex PW6/DA) also. A1 stated that vide the note dated 04/11/2008 at page 6 of Ex PW12/A (colly), the show cause notice dated 04/11/2008 placed at page 5 of the said file was, as it is, placed before the AE (Building) who had signed the said show cause notice; the note dated 04/11/2008 referred to the putting up of the show cause notice dated 04/11/2008 before the AE which was part of the note sheet and all the facts were brought in the knowledge of AE (Building) through the said show cause notice dated 04/11/2008 put up to the AE (Building). A1 also stated that the weekly certificates brought on record did not pertain to him. A1 admitted the signatures at portion C with date 10/11/2008 at RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 7/84 CBI vs J.S Sehrawat etc. page 1/N of note sheet of Ex PW9/K (colly) (D40) to be belonging to him and that in the said note there was no mention of 'further unauthorized construction at third floor with projection in Mpl Land'. A1 stated that it may have been left out inadvertently; however, the said fact of unauthorized construction at third floor was in the knowledge of the senior officers including AE (Building)/Executive Engineer (Building).
7. A1 initially denied to lead defence evidence. Later when A1 was further examined under Section 313 Cr.P.C on 11/11/2013, A1 submitted that he wanted to lead defence evidence.
DEFENCE EVIDENCE
8. Sh S.K Lakra (DW1) and Sh Virender Pal (DW2) were examined by A1 in defence evidence.
ARGUMENTS
9. I have heard the arguments of Sh V.K Ojha, Ld. Public Prosecutor for CBI; Sh Anil Kumar, Ld. Defence Counsel for A1; A1 and have perused the record including the evidence led and given my thoughts to the rival contentions put forth.
10. Ld. PP for CBI had argued that by the documentary evidence, recordings of the 43 call conversations, transcripts of such call RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 8/84 CBI vs J.S Sehrawat etc. conversations and the deposition of prosecution witnesses, the prosecution has been able to prove that public servant accused Jaibeer Singh Sehrawat (A1) demanded and accepted illegal gratification of (1) Rs 1.25 lacs from PW2 Sh Jitender Akarnia @ Gullish for not taking demolition action on property of PW10 Sh Maha Singh Chauhan in December 2008 and (2) Rs 50,000/ on 18/11/2008 from PW5 Smt Bimla Devi for not taking any further action on her property, part of property no. 2237, Shadi Khampur, Ranjeet Nagar, Karol Bagh, New Delhi. Also has been argued that the prosecution has been able to prove its case beyond reasonable doubt that A1 habitually accepted aforesaid illegal gratification other than legal remuneration for the purposes stated above and by abuse of his position as Junior Engineer of MCD, A1 had obtained such illegal gratification, also by corrupt and illegal means, which of course was without any public interest and per contra to his duty to check and proceed against unauthorized construction in the properties of PW10 Sh Maha Singh Chauhan and of PW3 Ms. Alka Verma/PW5 Ms. Bimla Devi. It was also argued that in order to protect further demolition of property of PW3/PW5, A1 had committed forgery in the booking file of such property and shifted booking of the property of PW3/PW5 to the adjacent property of PW10 Sh Maha Singh Chauhan; which all acts were done by A1 in prosecution of his common object pursuant to his criminal conspiracy hatched between him and PW2, PW3 and others for which common object even entries in property file of property no. 2237, Shadi Khampur, Ranjeet Nagar, Karol Bagh, New RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 9/84 CBI vs J.S Sehrawat etc. Delhi were falsified with intent to save such property from further demolition. It was also argued that the existence of said conspiracy and its objects are deduced from the circumstances of the case and the conduct of the accused involved in the conspiracy. It was also argued that the evidence of approvers PW2 and PW3 is lent corroboration by documentary evidence in form of proved record of MCD and as well by the recorded conversations of 43 calls and its transcripts while mere resiling of few prosecution witnesses will not be fatal to the prosecution case. Ld. PP for CBI has relied upon the following precedents praying for conviction of the arraigned accused for the charges framed:
1. K. Hasim vs. State of Tamil Nadu, 2005 Cri.L.J 143 (SC);
2. Ranjeet Singh vs. State of Rajasthan, 1988 Cri.L.J 845 (SC);
3. S. Swamirathnam vs. State of Madras, 1957 Cri.L.J 422 (SC);
4. K.K. Jadav vs. State of Gujarat, 1966 Cri.L.J 605 (SC);
5. Narayan Chetanram Chaudhary vs. State of Maharashtra, 2000 Cri.L.J 4640 (SC);
6. Haricharan Kurmi vs. State of Bihar, 1964 (2) Cri.L.J 344 (SC);
7. R.M. Malkani vs State of Maharashtra, 1973 Cri.L.J 228 (SC);
8. Yusufalli vs State of Maharashtra, 1968 Cri.L.J 103 (SC);
9. V. Thevar vs. State of Madras, 1957 Cri.L.J 1000 (SC);
10. Murari Lal vs. State of M.P., 1980 Cri.L.J 396 (SC).
11. Ld. Defence Counsel argued that on the basis of evidence on record, none of the charges framed could be substantiated by the prosecution even by the degree of preponderance of probability though it was required of prosecution to prove its case beyond reasonable doubt.
It was also argued that the allegation of demand and acceptance of illegal gratification of (1) Rs. 1,25,000/ from approver PW2 Sh Jitender Akarnia and (2) Rs 50,000/ from approver PW3 Ms. Alka RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 10/84 CBI vs J.S Sehrawat etc. Verma/PW5 Ms. Bimla Devi could not be substantiated during the course of trial. It was also argued that the testimonies of approvers PW2 and PW3 lacked credence, were unreliable and untrustworthy being embodied with material contradictions, severe infirmities, major improvements and inherent contradictions with the presented case of prosecution. It was also argued that testimony of approver PW2 was not corroborated by any other prosecution witness including PW10 Sh Maha Singh Chauhan and PW14 Sh Pramod Chauhan nor from any documentary evidence on record. It was also argued that even Virender Pal and Ramesh, Beldars as well as AE S.K Lakra were neither arraigned as accused nor cited as witness(es). It was also argued that PW2 did not identify the alleged questioned conversations and the alleged voice of A1. It was also argued that the mobile phone instruments in question were not sealed at any moment of time and there was every possibility of tampering of its data to suit case of prosecution. Call detail records of mobile phone number of PW2 were not filed nor proved by prosecution but withheld calling for taking of adverse inference against prosecution. Neither recovery of any alleged bribe amount was affected nor any trap was laid to apprehend A1 red handed despite alleged prior information with investigating agency in the form of the recorded call conversations, which conversations even did not find mention in the lodged first information report. It was also argued that the statements of the approvers PW2 and PW3 were obtained under fear and arrest with promise to make them approvers and they were not arrested at RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 11/84 CBI vs J.S Sehrawat etc. any moment of time. It was also argued that the evidence of approver PW3 did not get any support from any other prosecution witness including PW5 Ms. Bimla Devi, PW16 Sh Hansraj Meena and PW36 Sh Sandeep Tanwar and the documentary evidence on record. Even Sh Naveen Verma, husband of PW3 and the Jethani of PW3 were not cited as prosecution witnesses and withheld by prosecution. Even approver PW3 did not depose anything about alleged demand and acceptance of Rs 50,000/ as bribe sum by A1. Stated mobile number 9810065195 of Sh Naveen Verma alleged to have been used by PW3 was not sealed by investigating agency and there was every possibility of tampering of data as to what suited the case of prosecution. Mobile call detail records of aforesaid mobile number of Sh Naveen Verma and MTNL landline number 2570244 in the name of Sh Naveen were neither produced nor proved but instead withheld by prosecution calling for adverse inference to be taken against prosecution. Even PW3 did not specifically identify A1. PW3 deposed that she had met A1 only once and that too for a minute, which creates serious doubts about her identifying questioned voice to be of A1, which establishes her having so identified it under threat/persuasion of CBI to save her own skin and the falsehood embodied in her evidence. Even PW3 deposed that her property was never booked for unauthorized construction which demolishes the allegation against A1 of shifting of booking of property of PW3/PW5 to property of PW10 Sh Maha Singh Chauhan. Alleged conversations identified by approver PW3 pertained to period from 19/12/2008 to RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 12/84 CBI vs J.S Sehrawat etc. 07/01/2009 when A1 was not posted in Ward No. 96 wherein property of PW3 was situated. Even as per PW3, CD Q1 was heard by her on 22/08/2012 for the first time in the court. No complaint was lodged by PW3 or her family members against A1. It was also argued that the compact disc containing questioned conversations was not admissible and was fabricated. Also was argued that approver PW3 deposed to have met A1 only for a minute but under the pressure of CBI incorrectly identified questioned voice to be of A1 while none of the other examined prosecution witnesses identified the voices contained in the questioned compact disc. Also was argued that neither the hard disk in which the alleged questioned conversations were originally recorded was seized nor sealed nor got examined from any expert nor any expert opinion was obtained for authenticity and genuineness of the recordings of such voices and to rule out manipulation and tampering there from. Also was argued that mandatory provision of Section 5 (2) of Indian Telegraph Act, 1885 and Rule 419 (A) of Indian Telegraph Rules, 1951 were neither complied with nor matter of surveillance in question was placed before the review committee which was mandatory. Also was argued that none of the voices in the questioned CD Q1 belonged to A1 nor any independent witness had confirmed it while PW18 was not competent to issue any certificate under Section 65B of Indian Evidence Act. Also was argued that Sh Madhukar Gupta, the then Secretary (Home), MHA who allegedly ordered for surveillance in this case was neither cited nor examined as prosecution witness despite admitted RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 13/84 CBI vs J.S Sehrawat etc. availability and the investigating agency fabricated order of MHA without producing any record of its issuance. Also was argued that neither the details of the seal by which questioned CD Q1 was sealed were known nor seal was produced during trial; transcript D41 was inadmissible, which was not even prepared in presence of any independent witness nor contained its date of preparation nor signatures of its scribe. It was impossible for PW40 to identify the voices contained in questioned CD Q1. It was also argued that there was lot of difference in the duration of calls in the CD Q1 as per the report of PW18 and the call detail records in question; there was no reference of alleged CD Q1 and the questioned conversations in the lodged first information report despite the fact that they allegedly pertained to period prior to registration of FIR. Also was argued that neither the alleged voices of Ashok, S.K Lakra, Jai Bhagwan Yadav, T.C Meena were identified by anyone nor the alleged conversations were specific leading to any logical conclusion but were instead vague. Also was argued that as per PW15, mobile phone number 9818802431 belonged to PW15 and was used by PW15 and not by A1. It was also argued that mobile phone number 9968493939 belonged to Kanta Devi and there was no admissible evidence on record of it being used by Birender Pal while both the mobile phones containing numbers 9818802431 and 9968493939 were not sealed by investigating agency after their seizure on account of which there was every probability of tampering, manipulation and fabrication of datas of these mobile phones; even call RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 14/84 CBI vs J.S Sehrawat etc. detail records of these mobile phone numbers produced during trial were not accompanied by any certificate under Section 65B of Indian Evidence Act casting serious doubts about their authenticity and genuineness. Also was argued that even PW17 was not sure whether seal after use in recordings of specimen voices was given to him and PW17 did not produce any seal during trial though as per case of prosecution, seal after such use was given to him for safe custody. Also was argued that in terms of version of PW17, it was improbable to conclude the proceedings of recording of specimen voices in the time period stated while no court permission was taken for obtaining sample voices; even specimen seal impressions were not obtained on any separate sheet of paper nor the facsimile of the seal was mentioned in the memos. Also was argued that prosecution has failed to prove the charges of offences under Section 218 IPC and under Section 466 IPC against A1, in view of the evidence of PW6 Sh T. Nagesh which was at variance and in contradiction with his statement Ex PW6/C under Section 164 Cr.P.C; even deposition of PW6 is not corroborated by any other prosecution witness or documentary evidence. Also was argued that sanction Ex PW1/A was accorded by incompetent authority without application of mind. Also was argued that the technical inspection report Ex PW41/A and Ex PW41/B of date 24/02/2010 pertained to the existing construction at property no. 2237/3 as on the date of inspection in year 2010 which did not speak about the period of the construction and was no help to the prosecution to prove its case. Ld. Counsel for A1 has relied upon the RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 15/84 CBI vs J.S Sehrawat etc. following precedents praying for acquittal of A1 for the charges framed:
1. Chonampara Chellappan vs. State of Kerala, (1979) 4 SCC 312;
2. Ashok Kumar Aggarwal vs. Central Bureau of Investigation & Anr., 2007 (98) DRJ 80 (High Court of Delhi);
3. Dagdu vs. State of Maharashtra, AIR 1977 SC 1579;
4. Bhiva Doulu Patil vs. State of Maharashtra, AIR 1963 SC 599;
5. Suraj Mal vs. The State (Delhi Administration), AIR 1979 SC 1408;
6. Rampal Pithwa Rahidass and Ors vs. State of Maharashtra, 1994 Cri.L.J 2320 (SC);
7. P.V. Narasimha Rao vs State through CBI, 97 (2002) DLT 452 (Delhi High Court);
8. Dharambir vs CBI, 148 (2008) DLT 289;
9. Mahabir Prasad Verma vs. Dr. Surinder Kaur, AIR 1982 SC 1043;
10. Nilesh Dinkar Paradkar vs. State of Maharashtra, JT 2011 (3) SC 429;
11. People's Union for Civil Liberties vs. Union of India & Anr. , (1997) 1 SCC 301;
12. Hukum Chand Shyam Lal vs. Union of India & Ors. (1976) 2 SCC 128;
13. Smt K.L.D. Nagasree vs. Govt. of India & Ors., AIR 2007 A.P 103;
14. L.K Advani vs CBI, 1997 Cri.L.J. 2559.
12. The core question that needs to be seen is as to whether there is sufficient legal evidence on record for the prosecution to prove its case beyond reasonable doubt against A1 for the offences charged.
13. PW1 Sh K.S Mehra deposed that being the then Commissioner of MCD, he was the appointing and disciplinary authority of JE in MCD and gave sanction Ex PW1/A for prosecution of A1 on 15/12/09, on request of CBI after perusal of documents sent by CBI relating to investigation and on being satisfied as to it being the fit case for grant of sanction. PW28 Sh Ajay Kumar Verma, the then Assistant Law Officer, Vigilance Department, MCD had forwarded sanction Ex PW1/A vide letter Ex PW28/A (D71), dated 17/12/2009 for prosecution of A1 to DIG CBI.
RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 16/84 CBI vs J.S Sehrawat etc.
14. The essential ingredients of Section 7 of Prevention of Corruption Act 1988 are that (i) the accused was a public servant; (ii) accused accepted or obtained the gratification for himself or for any other person; (iii) the said gratification was a motive or reward (a) for doing or forbearing to do any official act or (b) for showing or forbearing to show, in the exercise of his official function, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person.
15. The essential ingredients of Section 13 (1) (a) of Prevention of Corruption Act 1988 are (i) the accused was a public servant; (ii) the accused habitually accepted or obtained from any person gratification for himself or for any other person and (iii) accused received such gratification as a motive or reward for doing or for bearing to do an official act or for showing or forbearing to show, in exercise of his official functions, favour or disfavour to any person.
16. The essential ingredients of Section 13 (1) (d) of Prevention of Corruption Act 1988 are (i) the accused was a public servant; (ii) accused used corrupt or illegal means or otherwise abused his position as such public servant and (iii) accused obtained valuable thing(s) or pecuniary advantage for himself or for any other person.
RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 17/84 CBI vs J.S Sehrawat etc.
17. In Section 13(1) (d) of Prevention of Corruption Act 1988, the word used is 'obtained'. The Apex Court in the case of C.K. Damodaran Nair v Govt. of India [(1997) 9 SCC 477] had the occasion to consider the word 'obtained' used in Section 5 of Prevention of Corruption Act 1947, which is now Section 13(1)(d) of Prevention of Corruption Act 1988. It was held in para 12 thus:
"12. The position will, however, be different so far as an offence under Section 5 (1)(d) read with Section 5(2) of the Act is concerned. For such an offence prosecution has to prove that the accused `obtained' the valuable thing or pecuniary advantage by corrupt or illegal means or by otherwise abusing his position as a public servant and that too without the aid of the statutory presumption under Section 4(1) of the Act as it is available only in respect of offences under Section 5(1)(a) and (b) and not under Section 5(1)(c), (d) or (e) of the Act. `Obtain' means to secure or gain (something) as the result of request or effort (Shorter Oxford Dictionary). In case of obtainment the initiative vests in the person who receives and in that context a demand or request from him will be a primary requisite for an offence under Section 5(1) (d) of the Act unlike an offence under Section 161 IPC, which, as noticed above, can be,established by proof of either `acceptance' or `obtainment' ".
18. The essential ingredients of Section 218 of IPC are (i) the accused was a public servant charged with the preparation of a record or writing; (2) accused framed that record or writing incorrectly; (3) accused had done so with intent to cause or knowing it to be likely that he will thereby - (a) cause loss or injury to the public or any person, or
(b) save any person from legal punishment, or (c) save any property from forfeiture or other charge to which it is legally liable.
RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 18/84 CBI vs J.S Sehrawat etc.
19. The essential ingredients of Section 466 of IPC are (1) the accused forged a document; (2) the document forged was either (a) record or proceeding of or in a Court of Justice, or (b) a register of birth, baptism, marriage, or burial, or (c) a register kept by a public servant as such, or (d) a certificate or document purporting to be made by a public servant in his official capacity, or (e) an authority to institute or defend a suit or to take any proceedings therein, or to confess judgment, or a power of attorney.
20. Section 463 of IPC defines forgery. The essential ingredients of forgery are (i) the document or part of the document must be false; (ii) the document must have been made dishonestly or fraudulent in one of the three modes specified in Section 464 of IPC; (iii) the document must have been made with intent (a) to cause damage or injury to public or any person, or (b) to support any claim or title, or (c) to cause any person to part with property, or (d) to cause any person to enter into an express or implied contract, or (e) to commit fraud or that fraud may be committed.
21. Section 464 of IPC states as to when a person may be said to have made a false document. Three modes are specified in Section 464 of IPC for making a false document. In short, a person is said to have made a "false document", if (i) he made or executed a document, full or RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 19/84 CBI vs J.S Sehrawat etc. in part, claiming to be someone else or authorized by someone else; or
(ii) he altered or tampered a document, after it has been made either by himself or by any other person, living or dead; or (iii) he obtained a document by practising deception, or from a person not in control of his senses.
22. In the case of Murari Lal (Supra), it was held that "there is no rule of law, nor any rule of prudence which has crystallised into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of science of identification of handwriting, the approach, as we indicated earlier, should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of an handwriting expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight."
23. In the case of Vadivelu Thevar v. The State of Madras AIR 1957 SC 614, Supreme Court held that "Hence, in our opinion, it is a sound and wellestablished rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 20/84 CBI vs J.S Sehrawat etc. In the first category of proof, the court should have no difficulty in coming to its conclusion either way - it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses."
24. Section 133 of Indian Evidence Act reads as under:
"133. Accomplice.An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice."
25. Section 114 of Indian Evidence Act and its illustration (b) read as under:
"114. Court may presume existence of certain facts.The Court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
Illustrations The Court may presume ..................
(b) That an accomplice is unworthy of credit, unless he is corroborated in material particulars;
.................."
26. Conjoint analysis of the precedents relied by the defence as RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 21/84 CBI vs J.S Sehrawat etc. well by prosecution including of Chonampara Chellappan (Supra); Ashok Kumar Aggarwal (Supra); Dagdu (Supra); Bhiva Doulu Patil (Supra); Rampal Pithwa Rahidass (Supra); P.V. Narasimha Rao (Supra); K. Hasim (Supra); Ranjeet Singh (Supra); S. Swamirathnam (Supra); K.K. Jadav (Supra); Narayan Chetanram Chaudhary (Supra); Haricharan Kurmi (Supra) elicited above as well as of the precedents Madan Mohan Lal vs State of Punjab, MANU/SC/0144/1970; Balwant Kaur vs Union Territory of Chandigarh, MANU/SC/0198/1987; A.P Kuttan Panicker and Ors. vs State of Kerala, MANU/KE/0135/1962; Bachcha Babu and Ors. vs Emperor, MANU/UP/0539/1934; Niranjan Singh vs State of Punjab, MANU/SC/0871/1996; Sarwan Singh vs The State of Punjab, MANU/SC/0038/1957; Rampal Pithwa Rahidas and Ors. vs State of Maharashtra, MANU/SC/0979/1994; Yamuna Singh and Others etc. vs State of Bihar, MANU/SC/0731/1996; Narayan Chetanram Chaudhary & Anr. vs State of Maharashtra, MANU/SC/0547/2000; Naresh Kumar Alias Pappu vs State of H.P, MANU/HP/0267/2005; State of U.P. vs Harendra & Ors., MANU/UP/1714/1996; State of H.P vs Lal Chand Aggarwal and Ors., MANU/HP/0516/2011; State of Rajasthan and etc. vs Ram Niwas and Anr., MANU/RH/0237/2006; Joga Gola vs State of Gujarat, MANU/SC/0136/1980; Banwari Lal vs State of Himachal Pradesh, RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 22/84 CBI vs J.S Sehrawat etc. MANU/HP/0026/2003; Pushpangadhan vs State of Kerala & Anr., MANU/KE/0610/2004; Raghuni Singh @ Raghunandan Singh and Ors. vs The State of Bihar, MANU/BH/0013/2003 and State of Orissa vs Bishnu Charan Muduli, MANU/OR/0309/1985 culls out the law laid, which even otherwise is by catena of decisions of Apex Court that evidentiary value of evidence of the approver(s) is as follows.
(A) The combined effect of Sections 133 and 114 (b) of the Evidence Act is that (a) an accomplice is competent to give evidence; (b) though the conviction of an accused on the sole testimony of an accomplice cannot be held to be illegal, yet the Courts, as a matter of practice, will not accept the evidence of such a witness without corroboration of his evidence in material particulars qua each of the accused.
(B) Every witness who is competent to give evidence is not necessarily a reliable witness. Since an approver is alleged to be an accomplice in the commission of the crime itself or 'privy' to the offence, the appreciation of his evidence must satisfy a double test:
(a) His evidence must show that he is a reliable witness. This does not refer to his antecedents, but to the character of the evidence given by him, that is to say, whether it is inherently incredible discrepant or self contradicting, apart from any question of what the other witnesses say. If his evidence RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 23/84 CBI vs J.S Sehrawat etc. fails to satisfy this test, there is an end of the matter, resulting in the rejection of his evidence. But if it passes this test of inherent credibility and consistency, it must still pass the test of corroboration.
The reliability of the approver's evidence against a particular accused may be shaken if the approver's account against another accused is wholly discrepant.
Nor does it mean that before reliance can be placed upon the evidence of an approver, it must appear that he is a penitent witness. The section itself shows that the motivating factor for an approver to turn is the hope of pardon and not any noble sentiment like contrition at the evil in which he has participated. Whether the evidence of the approver will be accepted or not will have to be determined by applying the usual tests, such as the probability of the truth of what he has deposed, to the circumstances in which he has come to give evidence, whether he has made a full and complete disclosure, whether his evidence is merely selfexculpatory and so on. The Court has, in addition, to ascertain whether his evidence has been corroborated in material particulars.
The reliability test, does not mean that the evidence of the RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 24/84 CBI vs J.S Sehrawat etc. approver has to be considered in watertight compartments, it must be considered as a whole, along with the other evidence led by way of corroboration.
(b) after the approver's evidence passes the test of reliability, which is a test common to all witnesses, it must pass the test of corroboration, which is special to the approver's evidence because it is 'tainted' evidence, coming from an accomplice to the crime. The nature of corroboration required will no doubt vary according to circumstances, but it means that the approverwitness's account must be corroborated by the evidence of the other witnesses or circumstantial evidence, on the following points:
(i) It must confirm, in some material particulars that the offence had been committed.
(ii) It must also be confirmed that the accused committed the offence. This means that it is not enough that a piece of evidence tends to confirm the truth of a part testimony of the approver; it must confirm that part of the testimony which suggests that the crime was committed by the accused.
For instance, if the approver says that the accused and he stole the sheep and he put the skins in a certain place, the discovery of the skins in that place would not corroborate the evidence of the approver as against the accused. But if RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 25/84 CBI vs J.S Sehrawat etc. the skins were found in the house of the accused, this would corroborate, because it would tend to confirm the statement that accused had some hand in the theft.
(iii) Such corroboration may come from circumstantial evidence.
(iv) The circumstantial evidence need not be to the effect that the accused committed the crime, but would suffice if it shows that the accused was connected with the crime, e.g., in the case of offences committed in secret, where direct evidence may not be available.
(v) The conduct of the accused himself, as against whom corroboration is required, may constitute circumstantial corroboration of the approver's evidence.
(vi) When the evidence of an approver is sought to be corroborated by the evidence of other witnesses such witnesses must be independent of sources which are likely to be tainted, so that the evidence of one approver cannot be corroborated by the evidence of another accomplice.
(vii) But a previous statement of the approver himself may afford corroboration of his testimony under the present section, if it satisfies the conditions laid down in s.157, Evidence Act.
(viii) The nature of extent of corroborations required would vary according to the circumstance in which the offence RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 26/84 CBI vs J.S Sehrawat etc. was committed and other relevant circumstances. It may even be dispensed with where there are special circumstances. Where, however, corroborative evidence is produced, it has also to be weighed, with other evidence, even though it is legally admissible.
(C) Where the approver's evidence is corroborated by the other evidence, on material points, conviction may be based on the sole testimony of the approver.
27. PW5 Smt Bimla Devi; PW36 Sh Sandeep Tanwar; PW10 Sh Maha Singh Chauhan; PW14 Sh Pramod Chauhan in their deposition did not support the prosecution version and on resiling from their previous statements were cross examined by Ld. PP for CBI at length. Sh Naveen Verma husband of PW3, Jethani of PW3, Beldars Sh Virender Pal and Sh Ramesh were neither examined in investigation nor cited nor examined as prosecution witnesses. On examination of Beldar Virender Pal as DW2 in defence evidence, he deposed that he had pasted show cause notice and demolition order on the portion of property no. 2237, Shadi Khampur, Ranjeet Nagar, New Delhi which was under
construction and built up till third floor. AE S.K Lakra when examined as DW1 in defence evidence inter alia deposed that name Sanjay was written in FIR Ex PW6/A and show cause notice Ex PW6/DA whereas the matter in writing as well as the sketch in Ex. PW 6/DA was already RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 27/84 CBI vs J.S Sehrawat etc. there, when Ex. PW6/DA was put before him for signatures by A1 on 27/10/2008. In terms of deposition of DW1, A1 had not framed any record or writing in documents of MCD incorrectly nor committed any forgery there. The case of the prosecution hinges on the testimonies of the two approvers i.e., PW2 and PW3 while there is no other ocular version of demand or acceptance of bribe on part of A1 either himself or through any other person, 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 function, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person.
28. PW2 deposed that on being asked by PW14 Sh Pramod Kumar Chauhan his friend, about any acquaintance of JE in MCD in presence of Virender Pal (DW2), employee of MCD who had come to his shop at Karol Bagh for service of Motorcycle, said Virender Pal (DW2) told PW2 that JE of Shadi Khampur area was A1 and he (Virender Pal) (DW2) had acquaintance with A1 and can arrange a meeting with him. As per PW2, Virender Pal (DW2) also made a telephone call to A1 and told PW14 and him (PW2) to come to the MCD office at 4 p.m for talk with A1. As per PW2, Virender Pal (DW2) introduced A1 with him (PW2) and PW14 in the gallery of MCD office perhaps at 2nd floor. PW2 also stated that he told A1 that building of his uncle namely PW10 Sh Maha Singh Chauhan bearing no 2237, Shadi Khampur was being demolished again and again and asked A1 to do RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 28/84 CBI vs J.S Sehrawat etc. something to save it from demolition. As per PW2, A1 demanded Rs 2 lacs to save the said building from demolition. PW2 also stated that on being informed to PW14 about the aforesaid fact, PW14 had talked with PW10 and said PW10 asked for getting the money reduced; thereafter PW2 again went upstairs and met A1 and after bargain the amount of Rs 1.25 lacs was settled to save the property bearing no. 2237, Shadi Khampur and told all this to PW14 asking him to bring the settled amount next day. PW2 also deposed that on next day morning PW14 came to his (PW2) shop along with Rs 1.25 lacs in yellow envelope and he (PW2) made call to Virender (DW2) and told him about the arrival of money; around 11 a.m that day A1 came at the shop of PW2 on motorcycle driven by Virender Pal (DW2) and he (PW2) handed over the said yellow colour envelop containing the aforesaid Rs 1.25 lacs to A1 while PW14 was near side PW2, after which A1 along with Virender Pal (DW2) left on the motorcycle. PW2 further deposed that despite taking of said money by A1, aforesaid building was demolished and uncle PW10 of PW2 telephoned him (PW2) and told that "Beta hamare saath dhokha hua hai, hamari to building toot gayi, hamare se paise bhi le liye or building bhi toot gayi". PW2 also stated that he made a call to Virender Pal (DW2) and said that even after taking money A1 had demolished the building; PW2 had called A1and Virender Pal (DW2) several times but the money was not returned. PW2 also deposed that he gave statement Ex PW2/A before Ld. Magistrate (PW 25) voluntarily without any pressure, coercion or threat.
RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 29/84 CBI vs J.S Sehrawat etc.
29. PW2 had made considerable improvements from his statement Ex PW2/A in the course of his deposition and was confronted with his said previous statement Ex PW2/A. In Ex PW2/A, PW2 did not say that after demand of bribe of Rs 2 lacs by A1 in MCD office as aforesaid, he had gone downstairs or told all such facts of demand to PW14 or PW14 talked with PW10 or PW10 asked for getting the demand of bribe reduced or he (PW2) again went upstairs. PW2 also did not say in Ex PW2/A that cash of Rs 1.25 lacs was brought to his shop in yellow colour envelope or next day PW14 had come to his shop with Rs 1.25 lacs or cash of Rs 1.25 lacs was brought by PW14 to his (PW2) shop and same day it was given to A1 at 11 am. PW2 claimed that he told in his statement Ex PW2/A that he could identify A1 but he was confronted with Ex PW2/A where it was not so recorded. PW2 was unable to tell either date or month of alleged demand or acceptance of bribe by A1 but stated it to be broadly in year 2008 or 2009 and in respect of his demand of money back from A1 and Virender Pal stated that it was in winter season of year 2009.
30. Per contra to the version of PW2, PW10 the stated owner of the portion of the property demolished out of property no. 2237, Shadi Khampur, Ranjeet Nagar, New Delhi, denied of either related as uncle or acquainted with PW14. PW10 deposed that he did not know any person namely Pramod Chauhan (PW14) and had no nephew of such name nor RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 30/84 CBI vs J.S Sehrawat etc. had met any such named person Pramod Chauhan for any matter including construction of his property. Even PW10 denied of having ever met or acquainted with any person namely Gullish (PW2). PW10 deposed of having entered into an agreement Ex PW10/A dated 08/02/2007 with Jagdish Verma for development of property, portion of property no. 2237, Shadi Khampur, Ranjeet Nagar, New Delhi. On being cross examined by Ld. PP for CBI, PW10 denied to have been present at the site of property under construction at the time of all the visits of MCD officials there. PW10 deposed that MCD officials visited at aforesaid property, where construction was carried out, in first week of November 2008 and had partly demolished said property when he was not there and had reached there after MCD officials left. As per PW10, thereafter about 7 or 10 days later, again MCD officials had come at his said property when he was not there but that day no action was taken by MCD officials. PW10 also deposed that again for the third time, after 7 days from previous visit, when the third floor of said property was under
construction, MCD officials came there when he (PW10) was not there and the third floor of the property was punctured and demolished. As per PW10, on all three aforesaid visits or thereafter, no nearby property was demolished by MCD officials. PW10 categorically denied of having asked PW14 of his help in avoiding demolition action on his property or even having asked PW2 for such help or having gone to shop of PW2 or from the shop of PW2, PW14 and PW2 had gone to MCD office or on their return they had told that concerned official (A1) of MCD wanted RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 31/84 CBI vs J.S Sehrawat etc. bribe of Rs 1.25 lacs for not taking any action on his property. PW10 also categorically denied of having arranged sum of Rs 1.25 lacs or had gone to shop of PW2 or had given said sum to PW2 to be paid to A1. PW10 also categorically denied of having ever protested to demolition squad of MCD in demolition action with regards to identity of property to be demolished. PW10 also denied presence of PW2 at the site of the aforesaid property on the third occasion of visit of MCD officials there. PW10 deposed that documents/notice Mark P7/2 and Mark P7/3 were the notices which were found pasted at his property under construction. Entire afore elicited version of PW10 instead of supporting the case of prosecution infact demolishes it. In terms of deposition of PW10, no action ever was taken for demolition of any construction in property nearby of his property under construction on the three visits of MCD officials elicited above or thereafter. On this count, PW10 was not cross examined by Ld. PP for CBI. In terms of deposition of PW10 accordingly, property of PW3/PW5, the adjacent property of property of PW10 was not demolished partly or fully, per contra to presented case of prosecution. Since as per version of PW10, photocopy of notice Mark P 7/2 (part of file D18) (carbon copy of such notice is Ex PW6/DA); photocopy of demolition order Mark P7/3 [carbon copy of such demolition order is at page 5 of Ex PW12/A (colly)] were both pasted at property of PW10, part of property no. 2237, Shadi Khampur, Ranjeet Nagar, New Delhi; such version also demolishes the prosecution version of shifting of booking of unauthorized construction of property of RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 32/84 CBI vs J.S Sehrawat etc. PW3/PW5 to property of PW10. On no count, the deposition of PW10 can be said to be in support of version of prosecution including that of PW2. Infact, version of PW10 elicited above is at complete variance and in material contradiction with the version of PW2.
31. In witness box, PW14 tells his own tale. PW14 stated that he knew PW10 being covillager and that PW10 was a property dealer but also stated that he (PW14) had no talks with PW10 in year 2008 and he (PW14) did not know anything about property no. 2237, Shadi Khampur, Ranjeet Nagar, New Delhi. Also PW14 stated that in December 2008 he had not met any MCD officials with Gullish (PW2) or otherwise nor PW10 ever came to him (PW14) saying MCD officials were troubling him. Despite having been cross examined by Ld. PP for CBI at length, PW14 did not support prosecution case or version of PW2 in any manner. PW14 denied categorically of having gone with PW2 to MCD office or any demand of Rs 1.25 lacs was made by A1 from PW2 to save property of PW10 from demolition or subsequent arrangement of said sum was made by PW10 or PW10 had brought said sum to shop of PW2 from where A1 obtained such sum when he (A1) was accompanied by Beldar Virender Pal (DW2). PW14 categorically stated that he was not acquainted with A1 nor had seen A1 before 10/01/2013, i.e., the day of his deposition in Court. PW14 did not whisper any incriminating fact against A1. Infact PW14 by his such deposition has stated facts at complete variance and per contra to RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 33/84 CBI vs J.S Sehrawat etc. version of PW2 and the presented case of prosecution.
32. Beldar Virender Pal was neither examined in investigation as prosecution witness nor cited nor examined as prosecution witness. On examination of Beldar Virender Pal as DW2 in defence evidence, he deposed that he had pasted show cause notice and demolition order on the portion of property no. 2237, Shadi Khampur, Ranjeet Nagar, New Delhi which was under construction and built up till third floor. DW2 also stated that notice Ex PW6/DA was bearing his signatures at X1 and demolition order dated 04/11/2008 at page 5 of Ex PW12/A (colly) was bearing his signatures at portion Y1 and both these documents i.e., said notice and said demolition order were pasted on the same property which had built up portions at ground floor, first floor, second floor and third floor, which property also had properties on both sides. As per DW2, no unauthorized construction was being raised in any of the adjacent properties of the property on which said notice and said order was pasted. DW2 deposed of neither knowing person namely Jitender Akarnia @ Gullish (PW2) nor having ever met any such person.
33. PW3 Ms. Alka Verma deposed that property number 2237, Shadi Khampur was their ancestral property which earlier was in occupation of her father in law, Sh. Kundan Lal Verma and his three brothers namely Raghunath Singh Verma, Jagdish Verma and third name she did not remember. As per PW3, the said property was partitioned RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 34/84 CBI vs J.S Sehrawat etc. prior to her marriage in 1998 and share of Jagdish Verma i.e., 2237/1, Shadi Khampur was adjacent to her portion i.e., 2237/3, Shadi Khampur; aforesaid portion of Jagdish Verma i.e., 2237/1, Shadi Khampur was sold by Sh. Jagdish Verma to a builder either in the end of 2007 or 2008 and the said builder started construction there in the starting of year 2008. PW3 also stated that her portion 2237/3, Shadi Khampur was in between the portions of Sh. Raghubir Singh and Jagdish Verma which were on the right side and left side respectively of her portion. PW3 deposed that the portion of her father in law was further partitioned by her mother in law in August 2008 and since then her elder brother in law was living separately in a portion there and portion under the occupation of PW3 and her husband was of 160170 sq. yard. PW3 stated that in September 2008 the constructions in her premises and premises of her elder brother in law of PW3 was in progress. PW3 further deposed that on 03/11/08, 04/11/08 and 05/11/08, demolition was done by MCD in the portion where builder was raising construction after purchasing said portion from Jagdish Verma; but the MCD official had not come to her during those days nor had given them any notice for demolition but PW3 panicked due to demolition and PW3 consulted her advocate who advised that since her premises was in urbanized village, so no demolition action can be taken there; PW3 was further advised to go to the MCD office for the purpose of asking the procedure for regularization. PW3 stated that on 7th or 8th September 2008, she along with her husband went to MCD office, Karol Bagh, Delhi and a lady there told them that the concerned RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 35/84 CBI vs J.S Sehrawat etc. JE is Mr. Sehrawat i.e., A1 and they should contact A1 and she (PW3) inquired from the said lady about whereabouts of A1 and the said lady told her (PW3) that A1 was coming and said lady pointed towards A1. PW3 further deposed that she told A1 that she had come from 2237, Khampur where demolition action was taken few days ago and that they were doing renovation in the premises, whether they were having any problem or not in doing renovation. As per PW3, A1 stated to her (PW3) that "Tumhari property bhi nahi bachegi" and she (PW3) inquired from A1 the legal way out upon which A1 told her (PW3) that "Regularize karwa leijye" and she (PW3) took mobile number of A1 and went to Tis Hazari Court and consulted with her Advocate, who advised her for online registration of the property. PW3 further deposed that on 10/11/2008, she (PW3) was going to the address given by the advocate for online registration of her property and while they were on return, on way, she (PW3) received phone call on her mobile from her sister in law (Jethani), who told her (PW3) that MCD officials including A1 had done demolition of her portion and police officials were also there. As per PW3, when she returned back to her home; second floor of her premises was demolished. PW3 stated that she had not received any notice from A1 or any MCD officials and she (PW3) consulted with her Advocates and got local leader Mr. Sandeep Tanwar talk with A1 on his mobile phone and A1 said that demolition drive was in progress and it was in his (A1) power, even despite notice. PW3 also deposed that on 18/11/2008, her mother in law (PW5) was alone in the house and she RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 36/84 CBI vs J.S Sehrawat etc. (PW3) was in office and when she (PW3) returned back in evening to her home, her mother in law (PW5) told her (PW3) that A1 with his team had come there; then PW3 had a talk 56 times with A1 on phone and whenever she (PW3) panicked on account of demolition drive, she (PW3) had a talk with A1. PW3 further deposed that in the starting of December 2008, when she was at home, MCD team in demolition drive came and members of said team threatened for demolition and she (PW3) resisted saying their property was never booked and she (PW3) had got online registration and once their property had been demolished; then JE Meena of MCD had a talk on telephone with A1 and at that time JE Meena was at road outside her (PW3) home and A1 was elsewhere. As per PW3, she also had a talk with A1 on telephone at that time; thereafter MCD demolition team left. PW3 stated that since they did not receive any notice, she (PW3) had the knowledge that their property was never booked for unauthorized construction. As per PW3, in her presence no money was paid by any of her family members to any MCD official. PW3 stated that on 21/05/2009, CBI officials (including PW38 Inspector S.K Sharma) came to their house for raid and from there took a register Ex PW17/A (D7) as well as other documents vide search list Ex PW3/A (D6); the accounts for renovation work were detailed in said register in maximum writing of PW3. PW11 Sh H.S Kasyap and PW17 Sh Arvind Singh were witnesses of aforesaid search and the search list Ex PW3/A. PW3 deposed that page no. 15(Q1), page no. 48 (Q2) of register Ex PW17/A (D7) were in her handwriting and page no. 169 (Q3) of RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 37/84 CBI vs J.S Sehrawat etc. register Ex PW17/A (D7) was in the handwriting of her husband. PW3 deposed that she had written Ex. PW3/B1 (Q1) and Ex. PW3/B2 (Q
2) on information received from her mother in law on her return back to home on 18/11/2008. PW3 deposed that she was enquired by the CBI officials and she was made to hear cassettes having conversation taped between her and A1 and in year 2009 her (PW3) voice sample was taken by CBI. PW3 deposed that she had voluntarily given statement Ex. P2, under Section 164 of Cr.P.C. PW3 also deposed that landline phone number 25702044 was installed in her bed room and the same was in the name of her husband Naveen Verma. As per PW3, she used mobile phone number 9810065195 in year 2008 which was in the name of her husband Sh Naveen Kumar Verma. PW3 stated that she gave her voice sample on the asking of CBI officers vide memorandum Ex PW3/C (D
23) on 24/09/2009 which was recorded in CD Ex. PW3/D. Sh Arvind Singh, Senior Manager (Finance), Pawan Hans Helicopters Limited was witness to Ex PW3/C.
34. PW3 also deposed that the (1) conversation dated 19/12/08 transcribed in Ex PW3/J; (2) conversation dated 29/12/2008/10:27:25, whose transcript is Ex PW3/L;(3) conversation dated 29/12/2008/11:54:30, whose transcript is Ex PW3/M; (4) conversation dated 29/12/2008/11:59:51, whose transcript is Ex PW3/N; (5) conversation dated 29/12/2008/12:16:10, whose transcript is Ex PW3/0; (6) conversation dated 29/12/2008/12:18:32, whose transcript is Ex RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 38/84 CBI vs J.S Sehrawat etc. PW3/P; (7) conversation dated 29/12/2008/12:41:51, whose transcript is Ex PW3/Q; (8) conversation dated 29/12/2008/13:31:30 (13:31:04), whose transcript is Ex PW3/R; (9) conversation dated 29/12/2008/14:31:48, whose transcript is Ex PW3/S; (10) conversation dated 29/12/2008/16:17:31, whose transcript is Ex PW3/T; (11) conversation dated 29/12/2008/16:29:33, whose transcript is Ex PW3/U; (12) conversation dated 30/12/2008/14:09:12, whose transcript is Ex PW3/V; (13) conversation dated 31/12/2008/19:45:02, whose transcript is Ex PW3/W; (14) conversation dated 07/01/2009/12:04:59, whose transcript is Ex PW3/X were some of the conversation in the voices of A1 and PW3 which voices were recorded in CD Ex PW3/G (previously Ex.Q1). PW3 identified the conversation between A1 and PW36 Sh Sandeep Tanwar, Councillor and cousin of PW3, dated 20/12/2008, transcript of said conversation being Ex PW3/K.
35. PW3 further deposed that she had gone to the office of CBI where her specimen writings Ex PW3/Y1 to Ex PW3/Y16 (S1 to S
16) and specimen writings of her husband Ex PW3/Z1 to Ex PW3/Z8 (S17 to S24) were taken. PW31 Sh Ganesh Barman was witness to recording of such specimen writings Ex PW3/Y1 to Ex PW3/Y16 and Ex PW3/Z1 to Ex PW3/Z1. PW24 Sh R.S Rana, Handwriting Expert in CFSL Shimla has proved his report Ex PW24/A with the opinion that (1) the questioned writings Ex. PW3/B1 (Q1); Ex. PW3/B2 (Q2) and specimen writings Ex PW3/Y1 (S1) to Ex PW3/Y16 (S16) were written RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 39/84 CBI vs J.S Sehrawat etc. by one and the same person i.e., Smt Alka Verma PW3; (2) the questioned writings and signatures Q5, Q6, Q7, Q16 in show cause notice Ex PW6/DA, dated 27/10/2008; Q8, Q9, Q10, Q11, Q12 in demolition order dated 04/11/2008, part of Ex. PW12/A (colly); signatures and writings Q13, Q14, part of Ex PW12/A (colly); Q15, Q 17 in FIR no. 40703 dated 27/10/2008 Ex PW6/A and specimen writings Ex PW11/A (colly) (S25 to S49) were written by one and the same person i.e., A1.
36. PW3 had made considerable improvements, additions in her deposition and deposed several facts in material contradictions with her previous statement under Section 164 Cr.P.C Ex P2. In the course of her cross examination PW3 candidly admitted that in statement Ex P2 she did not state (a) that her advocate had advised her on 10/11/2008 for online registration of her property; (b) that on 10/11/2008 when she was going to address given by her advocate for online registration of her property and while was on her way to return, she received phone call on her mobile from her sisterinlaw (Jethani) who told her (PW3) that MCD officials including A1 had done demolition of her (PW3) portion and police officials were also there. PW3 was unable to tell the description of the place where she was going for online registration of her property. Though PW3 claimed that she had got done the online registration of her property on 10/11/2008 but she failed to show any document of that fact. PW3 stated of having told in her statement Ex P2 RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 40/84 CBI vs J.S Sehrawat etc. that when in December 2008 MCD team came in demolition drive, she had inter alia told that that once her property had been demolished but since Ex P2 did not contain such fact, PW3 was confronted with said statement. PW3 also elicited that CD Ex PW3/G (previously Ex.Q1) was heard by her on 22/08/2012 during the course of her examination in chief in Court, for the first time. By such version PW3 has self contradicted her own version while she previously deposed that she was made to hear cassette having conversation between her and A1 in CBI office. Investigating agency or prosecution did not place on record nor played any cassette in the course of deposition of PW3 but only above referred CD Ex PW3/G (previously Ex.Q1) was displayed and PW3 was made to hear the recorded conversation therein in the course of her examination in Court.
37. Also PW3 admitted that the recorded conversation between A1 and PW36 Sh Sandeep Tanwar, which was heard by her in the course of her deposition, had not taken place in her presence. So with regard to such conversation in transcript Ex PW3/K, the version of PW3 is of hearsay evidence, inadmissible in evidence being hit by Section 60 of Evidence Act. The CD containing conversation as it is in transcript Ex PW3/K was not displayed by the prosecution in the course of examination of PW36. PW36 infact resiled and has not supported the case of prosecution in any manner whatsoever. PW36 stated that when he was called in CBI office and on laptop recorded telephonic RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 41/84 CBI vs J.S Sehrawat etc. conversation was displayed for one or two minutes in respect of two calls, even then he told the CBI officer that one of the voices appeared to be of him while on the other side the voice was of one JE of MCD, which he did not identify as it was his sister (PW3) who had dialed the number and gave the phone to PW36 to converse and PW36 had not gone to house of PW3 during the period PW3 was troubled by MCD officials. PW36 denied of having given statement Ex PW36/PA under Section 161 Cr.P.C to IO of CBI. PW36 categorically denied of having identified voice of A1 and of himself (PW36) on display of recorded telephonic conversation in office of CBI. PW36 denied of having made call to A1 or having conversed with A1 or having visited house of PW3 on alleged visit of demolition squad there in December 2008.
38. PW5 Smt. Bimla Devi deposed that one fourth (¼th) share of H. No. 2237, Shadi Khampur, Ranjit Nagar, Delhi had come in the share of her husband and she is having two sons and three daughters. PW5 stated that she along with her sons and their families were residing in the portion of the aforesaid property. As per PW5, in the year 2008 the said house was built up to second floor i.e. ground floor, first floor and second floor and from November or December 2008 the said house was being repaired as the roof of the tin shed on the second floor was being replaced with stone slabs. PW5 stated that Sh Jagdish Verma, her brother in law (Dewar) had given his premises, which was near to her house, to dealer for construction and construction was going on; several RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 42/84 CBI vs J.S Sehrawat etc. times the said premises was demolished; even premises of PW5 was also demolished once; several persons who came to demolish had even threatened that their house will be demolished as the adjacent house had been demolished. As per PW5, in the last months of 2008, officials of MCD had come twice, once they had come for demolition; second time, they had come and threatened for demolition but had not demolished any portion of the premises and even had asked for money. PW5 stated that when she was alone in her house, 34 MCD officials had demanded Rs. 50,000/ or otherwise her house will be demolished, on which PW5 got frightened and gave sum of Rs. 50,000/ to those 34 persons who had demanded so and daughter in law and son of PW5 were not at home at that time but in the evening PW5 had told these facts to her daughter in law i.e., PW3. PW5 when resiled was cross examined by Ld. PP for CBI but to no avail. PW5 denied of having told as recorded in portion C to D of statement Ex PW5/PA under Section 161 Cr.P.C that when work was in progress in her house on 10/11/2008 A1 came with police force and demolished wall and doors there while she was alone in the house and A1 told that there was booking of her house and he will fully demolish it while she had not received any notice or letter. PW5 clarified that only small children were in the house at the time of demolition there and she, her sons, her daughters in law were not there in the house and only when persons after demolition were leaving, she (PW5) and PW3 arrived from market at about 5 pm or 5.30 pm. PW5 also deposed that in the evening of demolition she did not tell her son Naveen and PW3 about demolition RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 43/84 CBI vs J.S Sehrawat etc. nor pursuant to it his said son and PW3 tried to inquire from A1 as to why their house was demolished without any reason nor upon any such inquiry A1 told that he was JE of area and could do anything. As per PW5, a week or 10 days later to demolition action the persons had come at her house when threat for demolition was given. PW5 stated that she had not told in her statement Ex PW5/A as it is recorded at portion G to H there that she was alone in her home, A1 came with 23 persons in the afternoon of 18/11/2008 or said in case she did not do anything her house will be demolished or when PW5 asked what she had to do, then A1 demanded Rs 50,000/ saying after that nothing will happen to her house upon which PW5 gave Rs 50,000/ to A1 or when she told these facts in the evening to her son and daughter in law (PW3) they became annoyed or PW3 wrote the fact of giving Rs 50,000/ to A1 in a copy. Infact PW5 has come up with a different tale all together, putting forth an absolutely new case reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made. PW5 categorically denied of any demand of Rs 50,000/ made by A1 to her as well as any sum of Rs 50,000/ as bribe obtained by A1 from her. PW5 stated she was not knowing any person namely Sehrawat nor she had ever seen A1 before 05/10/2012 i.e., the date of her deposition. PW5 did not identify A1 to be amongst officials who had come for demolition at her house or who demanded Rs 50,000/ or to whom Rs 50,000/ were paid by her. Afore elicited version of PW5 belies version of PW3 of having written Ex RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 44/84 CBI vs J.S Sehrawat etc. PW3/B1 (Q1) and Ex PW3/B2 (Q2) on information received from PW5 on her (PW3) return back to home on 18/11/2008. There is no other cited or examined witness to prove fact of any demand of bribe of Rs 50,000/ by A1 and acceptance of said sum as bribe by A1 from PW5 since PW5 resiled as aforesaid and did not depose of said fact and there is no other cited or examined witness of said fact in direct oral evidence.
39. PW11 Sh H.S. Kashyap, Senior Manager in Pawan Hans Helicopters Limited deposed that the specimen signatures and writings of A1, Ex. PW11/A (colly) (S25 to S49) were taken in his presence in CBI office on 13/08/2009.
40. PW6 Sh T. Nagesh deposed that he was employed as LDC in Building Department, Karol Bagh Zone and knew A1 who was working as JE in Karol Bagh Zone in 2008 and 2009. PW6 stated that he gave his statement Ex. PW6/C, under section 164 of Cr.P.C., dated 27/11/2009 to Ld. Magistrate. PW6 deposed that the FIR no. 40703 dated 27/10/2008, Ex. PW6/A was issued by A1 and bears signature of A1 at point Q17. PW6 stated that in the Misal Band Register D44 at page 148, entry Ex PW6/B at serial no. 74 dated 27/10/2008 was in his (PW6) handwriting. PW6 stated that when the file (M141/09) was received at his (PW6) seat in his office after issuance of FIR Ex PW6/A (dated 27/10/2008) and the show cause notice (Ex PW6/DA dated 27/10/2008), the name of the owner was not mentioned in FIR Ex RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 45/84 CBI vs J.S Sehrawat etc. PW6/A. DW1 Assistant Engineer S.K Lakra deposed that text of FIR Ex PW6/A was in the writing of A1 and four instructions at portion C were in his writing and when said FIR Ex PW6/A was put before him on 27/10/2008 and he signed at portion B, word "Sanjay" at Q4 was already written. PW6 stated that ultimately after passing of demolition order, when the file (M141/09) came back to the seat of OI, then A1 had told that name of owner is now known, so OI PW12 Sh Pawan asked him (PW6) to make entry of name of owner in the Misal Band register and at that time when A1 had given back said file in OI Section on 11/12/2008 containing FIR Ex PW6/A and all related documents, then the name of owner was written in FIR Ex PW6/A (at portion Q4) and in show cause notice (Ex PW6/DA) also. PW12, Office Incharge (OI) did not whisper of any such facts, that on 11/12/2008 when the file (M 141/09) came back to his seat, then A1 had told him (PW12) that name of owner is now known, so then he (PW12) asked PW6 to make entry of name of owner in the Misal Band register. Such version of PW6 of narration of the afore elicited fact by A1 to PW12 is hearsay version and hit by Section 60 of Indian Evidence Act besides which PW12 himself does not say so nor was cross examined on this aspect by Ld. PP for CBI for A1 having told PW12 on 11/12/2008 for having come to know the name of owner of property as "Sanjay". DW1 also deposed that carbon copy of show cause notice no. 5103 dated 27/10/2008, Ex PW6/DA was put before him (DW1) by A1 on 27/10/2008 after preparing it and he (DW1) signed it at portion encircled Y and at that time the word RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 46/84 CBI vs J.S Sehrawat etc. "(Sanjay)" within portion encircled Q5 and portion encircled Z were already written and besides that the matter in writing as well as sketch in Ex PW6/DA were already there. DW1 also deposed that carbon copy of demolition order dated 04/11/2008, which is at page no. 5 of Ex PW12/A (colly) was bearing his signatures at point A and A1 had put this document before him after permission and except the writings at portion encircled Q9 (that is the number of demolition order and date), other text in writing including sketch in said order was already written on 04/11/2008 at the time when said document was put before him. DW1 elicited that markings Q8, Q9, Q10 and GEQD stamp impression were not there in aforesaid document but the text in the said marking Q8 and Q10 was already written on 04/11/2008. DW1 further deposed that the note at page 6 of Ex PW12/A (colly) was put before him on 04/11/2008 by A1 along with FIR Ex PW6/A and aforesaid copy of show cause notice Ex PW6/DA and after giving direction of "issue notice" at portion encircled X in said note, he (DW1) appended his signatures. As per DW1, later there to, A1 had put before him (DW1) the demolition order dated 04/11/2008 which is at page 5 of Ex PW12/A (colly) where he signed at point A on the front page. As per DW1, the matter at page 6 of Ex PW12/A (colly) was a standard proforma for putting up such note by JEs of their Zone for demolition notice and in such proforma excepting the number of the building, other details of unauthorized construction of the building/property were not given.
RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 47/84 CBI vs J.S Sehrawat etc.
41. PW16 JE Hansraj Meena deposed that FIR dated 29/07/2008 Ex. PW9/A; office copy of show cause notice dated 29/07/2008 Ex. PW9/B were in respect of unauthorized construction against property no. 2237, Shadi Khampur, Ranjit Nagar, New Delhi booked by him and these were in file D19 and said unauthorized construction detailed was at ground, first and second floor. As per PW9 Sh Mahesh Chandra, the demolition order Ex. PW9/C dated 18/08/2008, at page 6 of file D19 was prepared by the then JE. Note sheet Ex. PW 9/D at page no.7 of D19 was signed by PW9. Letters Ex PW9/E and Ex PW9/F, both dated 05/08/2008 were written by PW9 to BSES Rajdhani Limited and Delhi Jal Board for initiating action against the occupier of the aforesaid unauthorized constructed property. As per PW9, endorsement in page no. 1 of the note sheet Ex. PW9/G in file D19 reflected the demolition action taken by the then JE on 31/12/2008 who had put up the file before PW9 after demolition action and since the demolition action was not complete by then, PW9 vide his endorsement at point A wrote for complete demolition. PW9 deposed that file D39 Ex. PW9/J (colly) was pertaining to proceeding against unauthorized constructions at House No. 2237, Shadi Khamput, Ranjit Nagar, New Delhi and in said file his signature were on note sheet pages Ex. PW9/H, from 1/N to 4/N and signature of the then Deputy Commissioner, Karol Bagh Zone, Sh. D.V. Verma were at point A on page 5/N. As per PW13 Sh Manoj Kumar Verma, file Ex. PW5/J (colly) (D39) was clubbed with file D40, as same property was booked by two JE's separately and RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 48/84 CBI vs J.S Sehrawat etc. two files of sealing were also initiated for the same property. PW9 deposed that he visited the property no. 2237, Shadi Khampur, Ranjit Nagar, New Delhi perhaps in November 2008 and got it demolished; initially JE Nathi Singh was assigned the work of demolition after obtaining police aid and thereafter PW9 had gone to the said property. PW9 stated that when he had gone to the aforesaid property there were 5/6 properties of the same address 2237, Shadi Khampur, Ranjit Nagar, New Delhi and even there was confusion as to which property out of them had to be demolished and site plan was previously prepared by JE according to which the concerned property was demolished; JE Nathi Singh had talk with PW9 on confusion about which property is to be demolished, upon which PW9 had gone there and had talks with JE Nathi Singh.
42. PW13 Sh Manoj Kumar Verma deposed that he was directed by Deputy Commissioner to club file Ex PW9/J (colly) (D39) with file Ex PW9/K (colly) (D40) and to issue warning to the defaulter JE i.e., A1 who booked the property number 2237, Shadi Khampur second time. Such direction of the Deputy Commissioner KB Zone, MCD of date 03/02/2009 is borne out at page 6/N of note sheet of file Ex PW9/K (colly) (D40) and the note finds mention of rebooking of the unauthorized construction in property number 2237, Shadi Khampur, Ranjeet Nagar by A1, which unauthorized construction in said property already stood booked by Sh H.R Meena JE (PW16). Also is mentioned in RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 49/84 CBI vs J.S Sehrawat etc. the said note that without consulting the status of the property from his predecessor PW16 and without checking record from OI (B)/KBZ, A1 had rebooked the unauthorized construction of the same property and for his such lapses A1 had been issued warning to careful in future while dealing with said important matters. Consequent thereto file Ex PW9/J (colly) (D39) was clubbed with file Ex PW9/K (colly) (D40).
43. PW21 Sh Rajesh Kumar, Bike Rider in Special Task Force (STF), MCD, Karol Bagh Zone, New Delhi deposed that in the course of his duty to make rounds in the area allotted to him on the bike and to ascertain about unauthorized construction in progress in the area, he had found unauthorized construction in progress at house no. 2237, Shadipur in respect of which he made entry Ex PW21/A dated 27/10/2008 at serial no. 1130 at page 173 of complaint register, copy D17. As per PW21, on both sides of the property where he found unauthorized construction in progress, there were houses. PW8 Sh Shahbaz Anwar posted as JE in Special Task Force (STF), MCD, Karol Bagh Zone, New Delhi deposed that in respect of the unauthorized construction in progress noticed in property no. 2237, Shadipur, entered at serial no. 1130 at page 173 of complaint register, copy D17, he (PW8) had visited the said property on 08/11/2008 and at that time brick work was in progress at second floor of said property under construction, about which PW8 made endorsement Ex PW8/A at page 173 of complaint register, copy D17. As per PW8, the property adjacent to aforesaid property under construction, was in RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 50/84 CBI vs J.S Sehrawat etc. built up condition at the time of his visit aforesaid. As per PW8, in document D13 i.e., the list of Action Taken Report of complaints at serial no. 56, there is mention of demolition action already taken on 30/12/2008 and 31/12/2008 in respect of complaint of unauthorized construction of aforesaid property whose inspection he had done on 08/11/2008. PW8 claimed that he had also gone along with CBI officials to Shadipur and shown them the property from outside, whose inspection he had done as aforesaid on 08/11/2008. Entry Ex PW12/F dated 31/12/2008 in the writing of JE PW16 in demolition register D43 was in respect of demolition action taken at property no. 2237, Shadi Khampur, Ranjeet Nagar with police aid. In said register D43 there is no entry of any demolition action taken at property of PW3/PW5 on 10/11/2008, as was so claimed by PW3 in her deposition. Also in demolition register D43 infact there is no entry of any demolition action taken on 10/11/2008 in any of the portions of property number 2237, Shadi Khampur, Ranjeet Nagar, New Delhi. From no document including unauthorized construction file for booking, monthly/weekly reports, demolition register it has been brought on record nor proved by prosecution that the property of PW3/PW5 was ever booked for unauthorized construction by A1 or any such property of PW3/PW5 was ever demolished by A1 or under supervision of A1 at any point of time in the year 2008 during his tenure as JE in Karol Bagh Zone. Also PW3 herself stated that her property, part of property number 2237, Shadi Khampur, Ranjeet Nagar, New Delhi, was never booked by any official RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 51/84 CBI vs J.S Sehrawat etc. of MCD for any unauthorized constructions. PW4 Ct. Gyanender Singh deposed that on 10/11/2008 he was posted in Police Post Ranjit Nagar, Police Station Patel Nagar and had accompanied HC Sunil, HC Tejveer, Ct Deendayal and MCD staff for carrying out demolition action at house number 2237, Shadi Khampur, Ranjit Nagar, Delhi where demolition was carried out at second floor under construction by MCD staff. PW4 neither named A1 to be amongst the MCD staff, aforesaid nor on this count he was cross examined by Ld. PP for CBI having not said so. PW27 Sh Magan Shekhawat, the then SHO, Police Station Patel Nagar deposed of having sent letter Ex PW27/A (D34) dated 30/11/2009 with copies of daily diaries of Police Post Ranjit Nagar and of Police Station Patel Nagar in respect of departure and arrival of MCD officials for demolition action. Such copies of daily diaries were neither attested nor were proved in the course of prosecution evidence. Even such copies of daily diaries were stated to be got done by PW27 from the daily diary registers of Police Post Ranjit Nagar as well as from Police Station Patel Nagar but the original daily diaries were not summoned by the prosecution during the course of the prosecution evidence to prove the copies of the daily diaries on record.
TAPE RECORDED CONVERSATION
44. In the case of Yusufalli (Supra), on the question regarding admissibility of the tape recorded conversation, the Supreme Court observed that the contemporaneous taperecord of a conversation formed RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 52/84 CBI vs J.S Sehrawat etc. part of the res gestae and is relevant fact and admissible under Section 8 of Indian Evidence Act. The recorded conversation is admissible provided first the conversation is relevant to the matters in issue; secondly, there is identification of the voice, and, thirdly, the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing, the taperecord. It was also therein observed that since the tape records are prone to tampering, the time, place and accuracy of the recording must be proved by a competent witness. It is necessary that such evidence must be received with caution. The Court must be satisfied, beyond reasonable doubt that the record has not been tampered with.
45. In the case of Ziyauddin Burhanuddin Bukhari AIR 1975 SC 1788, Supreme Court held that the taperecords of speeches were admissible in evidence on satisfying the following conditions :
"(a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it.
(b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record.
(c) The subjectmatter recorded had to be shown to be relevant according to rules of relevancy found in the Evidence Act."
46. In the case of People's Union for Civil Liberties (Supra), it was directed that an order for telephone tapping in terms of Section 5 (2) of Indian Telegraph Act, 1885 is to be issued by the authorities RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 53/84 CBI vs J.S Sehrawat etc. designated there and its copy is to be sent to the Review Committee concerned within one week of passing of such order; procedural safeguards were laid and the Review Committee within two months is to investigate whether there is a relevant order under Section 5 (2) of said Act and/or whether there has been any contravention of Section 5 (2) of said Act and in case of any such contravention of said provision the said committee will set aside said order under scrutiny and direct destruction of copies of intercepted material while in case of no contravention a finding to that effect shall be recorded by the Review Committee.
47. In the case of Hukum Chand Shyam Lal (Supra), it was held that the appropriate authority has to form an opinion with regard to occurrence of a 'public emergency' with a view to take further action under Section 5 (1) of Telegraph Act, 1885.
48. In the case of Smt K.L.D. Nagasree (Supra), it was held that compliance with procedural safeguards provided Rule 419A of Telegraph Rules 1951, containing procedural safeguards in terms of pronouncement in case of People's Union for Civil Liberties (Supra), was mandatory, particularly since violation of said provisions would result in infraction of right to privacy of an individual which is part of right guaranteed under Act 21 of Constitution; in event of non compliance, whatever information is obtained pursuant to that order RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 54/84 CBI vs J.S Sehrawat etc. cannot be taken into consideration for any purpose whatsoever.
49. In case of Dharambir Khattar vs Union of India & Anr in W.P. (Crl) 1582/2007 it was held by Hon'ble Mr Justice Badar Durrez Ahmed on 21/11/2012 that "It is apparent that the Supreme Court categorically held that the question of admissibility of a tape recorded conversation illegally collected or obtained was no longer in issue in view of the decision in R.M. Malkani (supra), where the Supreme Court held that a contemporaneous tape record of a relevant conversation was a relevant fact and was admissible. The Supreme Court clearly held that the noncompliance or inadequate compliance with the provisions of the said Telegraph Act did not per se affect the admissibility.
45. Therefore, without going into the issue of whether there was non compliance of the provisions of Section 5(2) or of Rule 419A, it is clear that even if there was, in fact, no compliance, the evidence gathered thereupon would still be admissible.
"
50. So without going into the issue of whether there was non compliance of the provisions of Section 5(2) the Telegraph Act or of Rule 419A the Telegraph Rules, it is clear that even if there was, in fact, no compliance, the evidence gathered thereupon would still be admissible.
51. In R. M. Malkani (Supra) Supreme Court laid down the essential conditions which, if fulfilled or satisfied, would make a tape recorded statement admissible otherwise not; and observed thus :
"Tape recorded conversation is admissible provided first the conversation is relevant to the matters in issue; secondly, there is RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 55/84 CBI vs J.S Sehrawat etc. identification of the voice; and, thirdly, the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the tape record."(Emphasis supplied)
52. In the case of R.M Malkani (Supra), it was also held that the telephonic conversation of an innocent citizen will be protected by Courts against wrongful or high handed interference by tapping the conversation. The protection is not for the guilty citizen against the efforts of the police to vindicate the law and prevent corruption of public servants. It must not be understood that the Courts will tolerate safeguards for the protection of the citizen to the imperiled by permitting the police to proceed by unlawful or irregular methods.
53. In Ram Singh vs. Col. Ram Singh, AIR 1986 SC 3 the Supreme Court has observed that:
"A tape recorded statement is admissible in evidence subject to the following conditions:
(1) The voice of the speaker must be identified by the maker of the record or other persons recognising his voice. Where the maker is unable to identify the voice, strict proof will be required to determine whether or not it was the voice of the alleged speaker.
(2) The accuracy of the tape recorded statement must be proved by the maker of the record by satisfactory evidence direct or circumstantial.
(3) Possibility of tampering with or erasure of any part of the tape recorded statement must be totally excluded.
(4) The tape recorded statement must be relevant.
RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 56/84 CBI vs J.S Sehrawat etc. (5) The recorded cassette must be sealed and must be kept in safe of official custody.
(6) The voice of the particular speaker must be clearly audible and must not be lost or distorted by other sounds or disturbances."
54. In the case of Dharambir vs. CBI, 148 (2008) DLT 289, it was inter alia held that "(i) As long as nothing at all is written on to a hard disc and it is subjected to no change, it will be a mere electronic storage device like any other hardware of the computer. However, once a hard disc is subject to any change, then even if it is restored to the original position by reversing that change, the information concerning the two steps, viz., the change and its reversal will be stored in the subcutaneous memory of the hard disc and can be retrieved by using software designed for that purpose. Therefore, a hard disc that is once written upon or subjected to any change is itself an electronic record even if does not contain any accessible information at present. In addition there could be active information available on the hard disc which is accessible and convertible into other forms of data and transferable to other electronic devices. The active information would also constitute an electronic record.
(ii) Given the wide definition of the words 'document' and 'evidence' in the amended Section 3 the EA, read with Sections 2 (o) and (t) IT Act, a Hard Disc which at any time has been subject to a change of any kind is an electronic record would therefore be a document within the meaning of Section 3 EA.
(iii) The further conclusion is that the hard disc in the instant cases are themselves documents because admittedly they have been subject to changes with their having been used for recording telephonic conversations and then again subject to a change by certain of those files being copied on to CDs. They are electronic records for both their latent and patent characteristics."
RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 57/84 CBI vs J.S Sehrawat etc.
55. It was also held in aforesaid case that the accused therein had a right of inspection of the hard disc since making mirror image copies of entire hard discs was uncalled for; it was also directed that the four hard discs be brought back from the forensic laboratory and be kept in either Cyber Crime Section of CBI or any other similar convenient place but under the control of the Special Judge CBI and original recorded conversations of relevant intercepted telephone calls relied upon by CBI in these four hard discs were to be played before the Special Judge CBI in the presence of accused or their representatives, the Counsel for the parties subject to the directions of Special Judge CBI.
56. In the case of Mahabir Prasad Verma (Supra), it was held that tape recorded conversations can only be relied upon as corroborated evidence of conversation deposed by any of the parties to the conversation and in the absence of evidence of any such conversation, the tape recorded conversation is indeed no proper evidence and cannot be relied upon.
57. The conditions laid for admissibility of tape recorded statement in evidence in the cases of Ram Singh (Supra) and Mahabir Prasad Verma (Supra) found approval of the Supreme Court in the case Nilesh Dinkar Paradkar (Supra).
RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 58/84 CBI vs J.S Sehrawat etc.
58. It is to be seen, whether the recorded conversation of the 43 relevant telephone calls detailed in Ex PW18/C (D12) of the period from 19/12/2008 to 09/01/2009 was properly recorded, kept, preserved, transferred in CD Ex PW3/G (Q1), sealed and not tampered with at any stage.
59. PW18, the then Inspector, M.C Kashyap deposed that since 1997 he was posted in the Special Unit of CBI and they collected intelligence and for that purpose they did telephonic surveillance. PW18 stated that on 27/07/2009 he handed over 43 relevant calls vide seizure memo Ex PW18/A (D10) to IO PW40 Inspector Arun Rawat and then his statement under section 161 Cr.P.C was recorded by PW40. On raising of objection by Defence Counsel regarding non supply of such statement of PW18 to accused, further examination of PW18 was deferred on 08/03/2013 and when on 15/05/2013 PW18 as well as PW40 were called, PW40 filed written submissions for having not recorded statement of PW18 in the course of investigation. Ex PW18/A finds mention of seizure of (1) a sealed packet containing voice content of 43 calls in 43 files in compact disc and (2) one unsealed recorded calls information report {Ex PW18/C (D12)}with another compact disc, containing same content as mentioned in 1 above. In Ex PW18/A there is no whisper of handing over of any certificate under Section 65 B of Indian Evidence Act or any certificate simplicitor in support of recorded calls information report or of the voice contents of the 43 calls in 43 files RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 59/84 CBI vs J.S Sehrawat etc. in the CD referred in (1) above. Certificate Ex PW18/B inter alia finds mention of (1) PW18 being the Supervisory Officer in Special Unit CBI and responsible for the operation, supervision and management of the computer system which are used for monitoring of telephones; (2) the computer system was a call recording server with special voice logging software used for recording of intercepted telephonic communications of different cases simultaneously, as per law; (3) information contained in the hard disk of the computer system was regularly and automatically recorded without any manual intervention; (4) the computer hardware and software used in the computer system had inbuilt security mechanisms or the integrity of recorded data; (5) call content and call related information of the telephone numbers monitored was recorded by the special software on the hard disk of the computer system; (6) the call content as standard wave files was copied into a single Compact Disc, twice making two copies of the same call content; (7) these compact discs were given to investigating officer of this case on 27/07/2009 under a seizure memo; (8) the entire process from original recording to copying on the compact disc is handled automatically by the computer system. In the course of his deposition, PW18 did not even whisper of any of the facts as they are borne out in certificate Ex PW18/B and elicited in (1) to (8) above. Ex PW18/B also finds mention of the fact "That during the period in question the above said computer system was operating properly and there have been no such operational problems so as to affect the accuracy of the electronic record." Ex PW18/B no where describes RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 60/84 CBI vs J.S Sehrawat etc. the period in question. Data of more than thousand calls in period from 19/12/2008 to 09/01/2009 is reflected in the call detail records Ex PW15/A (colly) (D50) of mobile number 9818802431 in the name of PW15 Sh Sunil Khatri, alleged to have been used by A1. The recorded call information report Ex PW18/C (D12) is in respect of the data of 43 calls of the period from 19/12/2008 to 09/01/2009 and out of them 32 calls are either outgoing calls from or incoming calls to mobile phone number 9818802431. So it is apparent from the face of record that in the period from 19/12/2008 to 09/01/2009 from the regular and automatically recorded conversations of more than one thousand calls made from or made to 9818802431, data of 33 calls as depicted in Ex PW18/C was selected and copied in compact disc. In the course of the arguments, Ld. PP for CBI submitted that it was manual selection of the relevant calls, made from or made to 9818802431, as depicted in Ex PW18/C and thereafter data of these calls was transferred in the compact disc. Neither in any document including certificate Ex PW18/B, report Ex PW18/C, memo Ex PW18/A nor in deposition of PW18 there is any mention of the fact of date of copying of the call content of the 43 calls, depicted in Ex PW18/C, from the computer system of Special Unit to the Compact Disc Ex PW3/G (previously Q1). Report Ex PW18/C was delivered on 27/07/2009 by PW18 to IO PW40. There is no explanation in any document or in deposition of PW18, PW40 or otherwise as to once the hard disk of computer system of Special Unit of CBI was written upon i.e., subjected to change by recording of aforesaid more RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 61/84 CBI vs J.S Sehrawat etc. than thousand calls, which were made from or received on mobile phone number 9818802431 within the period from 19/12/2008 to 09/01/2009 and in the period later thereto, when the hard disk of computer system of Special Unit of CBI was again subject to change by manual selection of data of 43 calls of Ex PW18/C (D12) and the copy of the data in the Compact Disc Ex PW3/G (previously Q1), there was no tampering or erasure of data or any part thereof the recorded conversations of the calls. CD Ex PW3/G (previously Q1) is stated to have been delivered by PW18 to PW40 in sealed packet with seal of CBI SU New Delhi on 27/07/2009. Seal after use was not handed over to any independent person/witness. PW18 asserted that no independent witness was joined in proceedings by him. PW18 did not depose that in the period from 09/01/2009 to 27/07/2009 and/or in the period from 19/12/2008 to 09/01/2009 data of the recorded calls was not tampered with in the computer system of Special Unit of CBI.
60. PW19 Sh R.K Singh, Nodal Officer of Bharti Airtel Limited deposed that he had handed over the documents (A) Ex. PW15/A (colly) (D50) i.e., the customer application form in the name of Sh Sunil Khatri (PW15) of mobile no. 9818804231 of Airtel with two enclosures including of call detail records from 26/12/2008 to 12/01/2009; (B) letter dated 14/08/2009 with documents detailed therein Ex. PW19/A (D21) which included (1) copy of Customer Application Form of Jitender Kumar Dayal; (2) copy of photograph of the customer; (3) copy of bill RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 62/84 CBI vs J.S Sehrawat etc. plan enrollment; (4) copy of Form No. 60; (5) copy of driving licence of customer and (6) the check list collectively Ex. PW19/B (colly); (C) letter dated 14/09/2009 Ex. PW19/C (D27) along with the documents Ex PW19/D (colly) (D28) [previously Mark P3/2 (colly)] i.e., copy of Airtel Prepaid enrollment form bearing the photograph of husband of PW3 and copy of ID proof of husband of PW3 to CBI.
61. PW26 Sh. Bindha Deen, Deputy Manager in MTNL deposed that he sent letter Ex PW26/A (D29), dated 09/10/2009 by post to the addressee IO PW40 along with attested copy of application form and related attested documents, collectively Ex PW26/B (colly) in respect of landline number 25702044 from his office record.
62. PW30 Sh Rakesh Soni, the then Junior Telecom Officer of MTNL, Tis Hazari Exchange, Delhi deposed that he had sent the Call Detail Records (CDRs) Ex PW30/B (colly) of mobile number 9968493939 for period from 01/11/2008 to 28/02/2009 and copy of CAF Ex PW30/C1, voter card Ex PW30/C2 as identify proof of customer Mrs. Kanta, r/o 185, Nizampur, Rashidpur, Bawana, Delhi along with the letter dated 30/06/2009, copy Ex PW30/A (D47) to CBI.
63. PW33 Sh. A.D. Tiwari, SSO, Grade II in CFSL, CBI, Lodhi Colony deposed that he recorded the sample voices of (1) PW2 vide Memorandum Ex PW17/B (part of D23); (2) Sh Birender Pal (DW2) RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 63/84 CBI vs J.S Sehrawat etc. vide Memorandum Ex PW17/C (part of D23); (3) PW3 vide Memorandum Ex PW3/C (part of D23) and of A1 vide Memorandum Ex PW17/D (part of D23). PW33 also stated that he had done the recordings (1) in CD Ex PW33/A1 whose Inlay card is Ex PW33/A2; (2) in CD Ex PW33/B1 whose Inlay card is Ex PW33/B2; (3) in CD Ex PW33/C1 whose Inlay card is Ex PW33/C2; (4) in CD Ex PW3/D whose Inlay card is Ex PW3/E.
64. My attention has been drawn by Ld. Defence Counsel to the following differences in call time and in the duration of the calls in questioned calls detailed in Ex PW18/C (D12) on its comparison with the call detail records Ex PW15/A (colly) (D50) of mobile phone number 9818802431 in the name of PW15 Sh Sunil Khatri, as provided by the service provider, alleged to be used by A1, placed on record by the investigating agency:
Serial Call Call Time Duration of call in seconds No. of Date call in D12 In D12 In D50 In D12 In D50 1 19/12/08 20:01:51 20:04:50 309 294 2 20/12/08 12:34:52 12:37:56 170 153 5 29/12/08 10:27:25 10:29:39 332 317 7 29/12/08 11:54:30 11:57:37 68 55 8 29/12/08 11:55:54 11:58:59 113 101 9 29/12/08 11:57:40 12:00:45 95 84 RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 64/84 CBI vs J.S Sehrawat etc. 10 29/12/08 11:59:51 12:02:52 78 71 11 29/12/08 12:16:40 12:19:52 35 18 12 29/12/08 12:18:32 12:21:32 136 130 13 29/12/08 12:26:53 12:30:03 120 104 14 29/12/08 12:41:51 12:45:04 388 369 15 29/12/08 12:57:58 13:01:10 163 145 19 29/12/08 13:31:04 13:34:19 59 38 21 29/12/08 14:31:48 14:34:55 114 101 23 29/12/08 15:51:39 15:54:49 112 96 24 29/12/08 16:17:31 16:20:59 173 139 25 29/12/08 16:23:36 16:26:45 73 58 26 29/12/08 16:29:33 16:32:52 45 20 27 29/12/08 16:50:52 16:54:01 33 18 30 30/12/08 13:47:40 13:50:57 55 34 31 30/12/08 13:49:16 13:52:36 69 44 32 30/12/08 13:53:31 13:56:43 84 68 33 30/12/08 13:59:24 14:02:47 122 94 34 30/12/08 14:09:12 14:12:16 97 88 35 31/12/08 19:35:49 19:38:56 144 131 36 31/12/08 19:38:28 19:41:39 170 153 37 31/12/08 19:41:26 19:44:38 70 51 38 31/12/08 19:42:42 19:45:48 83 71 39 31/12/08 19:45:02 19:48:14 654 636 41 06/01/09 20:22:31 20:25:48 79 63 42 07/01/09 12:04:59 12:08:15 311 294 43 09/01/09 21:31:22 21:34:47 61 39
65. Also was argued by the Ld. Defence Counsel that the call details in Ex PW30/B (D47) in respect of 9968493939 were also not in RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 65/84 CBI vs J.S Sehrawat etc. correct sequence of time period as was clear from the bare perusal of the same.
66. Ld. PP for CBI argued that as per the call detail records provided by the service provider, the duration of the call in seconds, was in respect of the period of the billed calls and excluded the duration of the calling ring tone while the duration of the call detailed in Ex PW18/C (D12) included the period of the ring tone as well. Such arguments find no foundation either in any proved document including Ex PW18/A, Ex PW18/B and Ex PW18/C or in any oral evidence including that of any official of service provider of mobile phone number, PW18 and PW40. Investigating Agency through concerned officers had bounden duty to furnish the reasonable explanation for afore elicited differences in call time and call duration of the cited 43 relevant calls in Ex PW18/C (D12) on its comparison with Ex PW15/A (colly) (D50) since both documents Ex PW18/C (D12) and Ex PW15/A (colly) (D50) were the relied documents of the investigating agency and such reasonable explanation was to be duly proved in the course of prosecution evidence, which was not done. Of course, prosecution case has to stand upon its own legs. There is no mention of (1) the date of copy of data in CD Ex PW3/G (previously Q1) from the computer system of Special Branch of CBI ; (2) handing of seal to anyone after sealing of CD Ex PW3/G; (3) mode and manner of selection of 43 calls detailed in Ex PW18/C (D12) from amongst more than 1000 recorded calls of period from 19/12/2008 to RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 66/84 CBI vs J.S Sehrawat etc. 09/01/2009 in computer system in either certificate Ex PW18/B or in deposition of PW12. Recorded Calls Information Report Ex PW18/C (D
12) per se reveals calls at serial number 3,4,6,16,17,18,20,22,28,29,40 to be in between mobile phone numbers 9968493939 {alleged to be of Virender Pal (DW2)} and 9871434646 {alleged to be of a person (may be PW2)} while other calls are stated to be either made from or received at mobile phone number 9818802431 (alleged to be of A1). In terms of order Ex PW18/D (D63) dated 10/12/2008 of Sh Madhukar Gupta, the then Secretary, Ministry of Home Affairs, the Special Unit of CBI kept mobile phone numbers 9818802431 and 9968493939 under surveillance/observation. In terms of certificate Ex PW18/B the computer system of Special Unit of CBI recorded intercepted telephonic communications of different cases simultaneously and automatically without any manual intervention. Accordingly calls made from or received at a particular mobile number were so recorded automatically in tandem in the computer system of Special Unit of CBI as and when they were so made or received. Selection of afore elicited eleven calls at serial numbers 3,4,6,16,17,18,20,22,28,29,40 between mobile phone numbers 9968493939 and 9871434646 and their copy at such serial number of call conversations amongst other 32 call conversations, which were either made from or received at mobile phone number 9818802431, in CD Ex PW3/G (previously Q1) belies the assertion in certificate Ex PW18/B that entire process from original recording to copying on the compact disc {Ex PW3/G (previously Q1)} was handled automatically RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 67/84 CBI vs J.S Sehrawat etc. by the computer system because the selection and copying process of such 43 intercepted calls from amongst more than 1000 calls in computer system stored at atleast two different locations (as per mobile phone numbers intercepted) required human intervention, manual selection and it was not only improbable but infact impossible that such 43 call conversations were selected or copied automatically by the computer system of Special Unit of CBI. Also there is no mention in his deposition by PW18 of the fact that there was no change (manipulations/editing/deletions/additions) in call contents of relevant calls detailed in Ex PW18/C (D12) contained in CD Ex PW3/G (previously Q1) pursuant to their recordings, in the period it remained in the computer system of Special Branch of CBI and in course of copy of their data in CD Ex PW3/G (previously Q1) and another CD and in the period till such CD Ex PW3/G was sealed and retained by PW18. Fact also remains that there exist differences in call time and duration of the calls as reflected in comparison of such details in document Ex PW18/C (D12) and Ex PW15/A (colly) (D50) and is elicited in table herein above. The original hard disk of the computer system of Special Unit of CBI was neither seized in the course of investigation nor sent for forensic opinion of expert to vouchsafe for authenticity and ruling out possibility of tampering or erasure of any part of the recorded call conversation of the 43 calls detailed in Ex PW18/C as they were recorded in the CD Ex PW3/G (previously Q1) by examination of its data. There was no impediment for the concerned officers of CBI for sending the said RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 68/84 CBI vs J.S Sehrawat etc. original hard disk of computer system of Special Unit of CBI for forensic opinion of the expert to rule out manipulations, tampering or erasure of part or whole of the recorded call conversations in it or in the CD Ex PW3/G (previously Q1), the stated copy of such data. PW3 in her deposition stated that on 7th or 8th September 2008 she had met A1 once only for a minute when she was accompanied by her husband Sh Naveen. Also in course of her statement, PW3 stated she was not confirmed but perhaps A1 was the JE whom she had met once as above said. On hearing recorded call conversations from CD Ex PW3/G (previously Ex Q1) PW3 stated conversation of elicited 14 calls to be between her and A1. PW3 had also deposed that before recording of her statement Ex P2 under Section 164 Cr.P.C, the investigating officer of CBI came to her home on several days and several times she was called in office of CBI. There was every likelihood of PW3 having identified aforesaid conversation of 14 calls on display of CD Ex PW3/G (previously Q1) to be the conversation between her and A1 to fine tune it to escape the ordeal of the Damocles' sword of Section 308 of Code of Criminal Procedure looming large on her head so as to confine to the prosecution case and come up with a cribbed and cabined testimony as in terms of her own version she simply met A1 only once for a minute on 7 th or 8th September 2008 and yet she claimed to have so identified the voice of A1. Recorded call conversations in CD Ex PW3/G (previously Q1) were not displayed for identification of voice of A1 before PW5, PW9, PW14, PW15, PW16, PW17, PW18, PW33 and PW36 while on display RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 69/84 CBI vs J.S Sehrawat etc. of such recorded call conversations in CD Ex PW3/G (previously Q1) by prosecution, PW12 did not identify voices in said recorded call conversations to be of A1. Excepting PW12 and PW3 as above said, no other prosecution witness was made to hear by prosecution in prosecution evidence such recorded call conversations in CD Ex PW3/G (previously Q1) for identification of voice of A1 therein, if any. A1 at all stages of trial, during prosecution evidence, at the time of recording of his statement under Section 313 Cr.P.C as well as in the course of arguments himself and through Counsel flatly denied of call conversations in CD Ex PW3/G (previously Q1) to be in his (A1) voice. Even other approver PW2 was only made to hear by prosecution the conversation from CD Ex Q1 which was at portion A to A in Ex PW2/C which he identified to be between him and Virender Pal DW2. DW2 Virender Pal was not made to hear by prosecution the conversation from CD Ex Q1 which was at portion A to A in Ex PW2/C to identify his voice or voice of PW2. Even PW2 was not made to hear by prosecution the other conversations depicted in Ex PW18/C (D12) contained in Ex Q1 purported to be between him and Virender Pal (DW2) to identify his voice or voice of Virender Pal (DW2). PW39 Sh Amitosh Kumar, Senior Scientific Officer GradeII - cum - Assistant Chemical Examiner to the Government of India CFSL: CBI: New Delhi had examined the aforesaid 43 relevant calls and has proved his report Ex PW39/A but in the course of his examination admitted that in the requisition of the CBI, the details of the questioned voices and specimen RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 70/84 CBI vs J.S Sehrawat etc. voices were given and it was also given as to they were of which specified person/accused(A1). In the report Ex PW39/A the auditory, phonetic and linguistic features in the questioned voices and specimen voices are not mentioned. PW39 also admitted that his laboratory came under the administrative control of CBI. When PW39 denied the suggestion in his cross examination that there was requirement of board comprising of various specialists including linguistic and sound Engineers for voice identification, then the Ld. Defence Counsel confronted PW39 with certified copy Ex PW39/DA i.e., his statement on oath as PW12 dated 19/12/2012 in CC No. 22/12 titled CBI vs. Surinder Singh Mor and Another before Ms. Swarana Kanta Sharma, Ld. Special Judge CBI05, Patiala House Court, New Delhi since in Ex PW39/DA PW39 had deposed to the contrary. Then PW39 stated that he had given correct statement in Ex PW39/DA. Also in Ex PW39/DA, PW39 had stated that in his department there was not such practice of the suspect voice comparison to be done by the board aforesaid comprising of various specialists including linguistic and sound Engineers for voice identification. Falsity on above count in version of PW39 is writ large on the face of record. Also was argued that hash value of each of the audio files of 43 relevant calls in computer system of Special Unit of CBI and in the CD Ex PW3/G (previously Q1) was neither obtained at any stage nor requisite certificate to that effect was filed nor proved to rule out tampering and prove genuineness/accuracy and originality of its data. Cumulative effect of elicited aforesaid facts bring into fore every RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 71/84 CBI vs J.S Sehrawat etc. reasonable possibility of chances of tampering, editing, additions, deletions, manipulation of datas of the recorded 43 call conversations in question detailed above and necessary precautions were neither taken at the end of concerned officers of investigating agency nor made vivid in their deposition in Court bringing the authenticity/genuineness/accuracy of content of the recorded call conversation of 43 calls detailed in Ex PW18/C (D12) and contained in CD Ex PW3/G (previously Q1) under the cloud of doubt. In this fact of the matter, the tainted tape recorded conversations in question cannot be used as corroborative piece of evidence to the testimonies of approvers and made the basis for conviction of the arraigned accused A1. Besides, even on the face value of the recorded call conversations in CD Ex PW3/G (previously Q1), it is borne out of record that these are devoid of (1) any demand of bribe sum by A1; (2) any acceptance/obtainment of any bribe sum by A1 and/or (3) any dates or period of aforesaid demand, acceptance or obtainment of such sums.
67. Collected call detail records Ex PW15/A (colly) (D50) of mobile phone instrument 9818802431 contained tower locations against each of the call made or received in the given period. Concerned officers of investigating agency did not pay heed to investigate on the angle of ascertaining about the tower locations so as to prove the alleged use of said mobile phone number 9818802431 by A1 as it could have been inter alia ascertained and proved from late night conversations or early RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 72/84 CBI vs J.S Sehrawat etc. morning conversations that the tower location of said mobile phone connection at that time was in the proximity of residence of A1 or from the day conversations that the tower location of said mobile phone connection at that time was in the proximity of the office of A1. Scientific investigation on that angle was not done despite the fact that it was in the knowledge of concerned officers of investigating agency that mobile phone number 9818802431 was in the name of PW15 Sh Sunil Khatri as per customer application form of mobile no. 9818804231 of Airtel, part of Ex PW15/A (colly) and not in the name of A1 himself and it was the case of investigating agency/prosecution that A1 was the user of said mobile phone. PW15 Sh Sunil Khatri inter alia deposed that mobile phone number 9818802431 of Airtel was in his name and used by him (PW15). Also PW15 stated that in year 2007 in search of rented premises he met A1 for the first time. PW15 also deposed that he took flat no. 61, Sangam Apartments, Sector 24, Pocket24, Rohini, Delhi from A1 on rent in year 2007 and remained there till 2008 and in March 2008 he took on rent flat of wife of A1 bearing no. 233, Sangam Apartments, Sector 24, Pocket24, Rohini, Delhi where he was residing till date. As per PW15, he had gone on 20/05/2009 to house of A1 to pay rent of May 2009 in cash and forgot his mobile phone bearing no. 9818802431 there and in the morning of 21/05/2009 when he went to house of A1 to get back his phone, he (PW15) was not permitted to enter there by 23 persons claiming to be CBI officials and at 8 pm that day was told by A1 that his mobile phone aforesaid was taken by CBI.
RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 73/84 CBI vs J.S Sehrawat etc. PW15 deposed that he did not move any application in Court to obtain his mobile phone instrument for the reason that expenses and time were involved while the cost of the mobile phone was not too much.
68. As per PW35 Inspector S.S. Yadav, he conducted the search at the house of PW2 on 21/05/2009 in the presence of PW20 Sh. Gulshan Kumar and PW29 Sh L.N Arora and prepared search list Ex PW20/A (D
8) and seized various articles.
69. As per PW37 Dy SP Ashok Kumar, he conducted the search in the presence of PW23 Sh R.K Bharti at the office premises of A1 and seized various articles, documents vide search cum seizure memo Ex PW23/A (D57). PW37 admitted that in the said search the documents recovered from almirah of A1 and from almirah of AE S.K Lakra (DW1) were seized together vide Ex PW23/A and separate seizure memos were not prepared for seizures from almirah of A1 separately from seizures from almirah of AE S.K Lakra (DW1).
70. PW25 Sh Devender Kumar Jangala, the then Metropolitan Magistrate had recorded the proceedings under Section 164 Cr.P.C Ex PW25/A (colly) of PW6 on 25/11/2009. PW25 had also recorded the proceedings of confession of PW3 under Section 164 Cr.P.C Ex PW25/B (colly) on 27/11/2009. PW25 had also recorded the proceedings of confession of PW2 under Section 164 Cr.P.C Ex PW25/C (colly) on RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 74/84 CBI vs J.S Sehrawat etc. 30/11/2009.
71. PW43 the then Inspector V.M. Mittal deposed that vide search list Ex PW34/A (D58) he had seized various documents and articles in search of the residence of A1 on 21/05/2009 and that in said search mobile previously mark Q4 containing SIM, both collectively Ex PW43/A were recovered there from. PW34 is the witness of aforesaid search. PW43 also deposed that on 26/05/2009 in CBI office he had also seized Ex PW43/B (colly) i.e., mobile phone make Nokia 6060 containing SIM of MTNL having last four digits 3939 on its production by Virender Pal (DW2), the Beldar of MCD, on 26/05/2009.
72. PW42 Sh Sher Singh Mittal, Contract Architectural Assistant in Chief Architect Department of MCD deposed that he along with his contract Architect Assistant Sh V. P. Bhardwaj, PW41 Executive Engineer, Sh B.L. Jindal, Assistant Engineers Sh B.P Sharma and Sh K.P. Sharma, a JE of Karol Bagh Zone (Building), one Inspector of CBI, two Beldars of Karol Bagh Zone ( Building Department) had visited the property no. 2237/3 of Shadi Khampur, Delhi, near Ranjeet Nagar, Delhi on 23/11/2009 and inspected the said property and prepared in few days the existing building plans Ex PW42/A (colly) (D55); which documents were submitted along with the details Ex PW41/B regarding existing constructions, etc. and letter Ex PW41/A (D55) dated 24/02/2010 of PW41 to CBI officials. PW41 deposed that he was unable RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 75/84 CBI vs J.S Sehrawat etc. to tell about the period of construction of property number 2237/3 of Shadi Khampur near Ranjeet Nagar, Delhi. Documents Ex PW41/B and Ex PW41/C simply depict the existing structure post construction as was existing in the month of November 2009 at 2237/3 of Shadi Khampur near Ranjeet Nagar, Delhi and in no manner is of help to the prosecution case since no scientific investigation had been carried out to ascertain the period of the construction of whole or part of the existing structure at 2237/3 of Shadi Khampur near Ranjeet Nagar, Delhi.
73. PW43 candidly admitted in the course of his examination that on seizures mobile phones Ex PW43/A (colly) and Ex PW43/B (colly) were not sealed. Hash value of the digital evidence was not obtained nor certified by the officers seizing aforesaid mobile phones so as to authenticate the integrity of the digital evidence. Accordingly, there was every reasonable possibility to manipulate the contents and data of the mobile phones Ex PW43/A (colly) and Ex PW43/B (colly) pursuant to their seizures.
74. PW32 Sh Krishna Sastry Pendyala, the then AGEQD, CFSL, Hyderabad deposed that the CFSL, Hyderabad had received all the original exhibits of this case vide letter dated 30/07/2009 and were examined by Sh. Sai Prasad, the then ACIO as well as by PW32 independently and PW32 proved his report Ex PW32/A. Mobile phone make Nokia 2760 bearing IMEI number 353116/02/471152/2 part of Ex RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 76/84 CBI vs J.S Sehrawat etc. PW43/A (colly) as well as mobile phone make Nokia (6060) bearing IMEI number 357608005567655 part of Ex PW43/B (colly) do not find mention amongst articles/mobiles (1) sent vide letter Ex PW40/C dated 30/07/2009 of SP, CBI to GEQD, Hyderabad and (2) examined inter alia by PW32 and opined vide report Ex PW32/A. No opinion of forensic expert regarding digital evidence contained in mobiles part of Ex PW43/A (colly) and Ex PW43/B (colly) has been filed nor proved by the prosecution.
75. In the case of State of Haryana vs Ram Singh, 2002 (1) JCC 385, it was inter alia held that the evidence tendered by the defence witness is entitled to equal treatment and equal respect as that of the prosecution and cannot always be termed to be a tainted one and the trustworthiness ought also to be attributed to the defence witnesses at par with that of the prosecution.
76. In the case of Prem Singh Yadav vs. Central Bureau of Investigation, 178 (2011) DLT 529, it was held that where it is possible to have both the views, one in favour of the prosecution and the other in favour of the accused, the latter should prevail. Pronouncements in case of Dilip v. State of M.P., 1 (2007)CCR 354 (SC)=II (2007) SLT 60=[2009] 1 SCC 450 and Gagan Kanejia v. State of Punjab, I (2007)CCR 89 (SC)= IX (2006) SLT 406=[2006] 13 RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 77/84 CBI vs J.S Sehrawat etc. SCC 516 were relied. Prosecution is required to travel the distance from 'may be true' to 'must be true' which in the present case, the prosecution has failed to cover. No one can be convicted merely on the basis of preponderance of probabilities. To the contrary, the accused can prove from evidence, prosecution evidence or defence evidence, that his defence is probable on the basis of preponderance of probabilities. In view of elicited evidence of PW12, PW16, PW13, PW21, PW8, PW9 as well as DW1, the afore elicited version of DW1 appears to be more probable. It stands not proved beyond reasonable doubt that A1 prepared incorrect official records or committed forgery in the booking file of unauthorized construction in property number 2237, Shadi Khampur, Ranjit Nagar, Karol Bagh, New Delhi of Smt Bimla Devi (PW5)/Ms. Alka Verma (PW3) and/or shifted of its booking to the adjacent property of Sh. Maha Singh Chauhan (PW10).
77. In the case of Suraj Mal (Supra), it was held by the Supreme Court that where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses.
78. The afore elicited material major contradictions, severe infirmities, improvements and embellishments embodied in the RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 78/84 CBI vs J.S Sehrawat etc. testimonies of approver witnesses PWs 2 and 3 bring these approver witnesses in the category of wholly unreliable witnesses as categorized by their Lordship in the case of Vadivelu Thevar v. The State of Madras, AIR 1957 SC 614. On being circumspect, appraisal of testimonies of approver witnesses PW2 and PW3 reveals them to be inherently incredible discrepant; not only inter se contradictory but as well as self contradictory; testimony of PW3 being selfexculpatory in nature; both testimonies suffering from severe infirmities, improvements, embellishments, material major contradictions on material aspects. PW3 no where elicits of any demand of the alleged bribe sum, obtaining/securing/gaining of the alleged bribe sum, acceptance of the alleged bribe sum of Rs 50,000/ by A1. Elicited version of PW5 belies the version of PW3. PW10 and PW14 in their testimonies falsify the version of PW2 as elicited in detail hereinabove. PW10 has categorically denied of having provided the bribe sum of Rs 1.25 lacs to PW2 for any purposes including payment of said sum to A1. PW10 also denied of being acquainted with PW14 or even knowing PW14 or having ever asked him any favour for any protection to his unauthorized construction in premises in question. PW14 denies of having accompanied PW2 to office of MCD, per contra to testimony of PW2 or in any manner instrumental in any bargain of any bribe sum to be paid by PW2 on behalf of PW10 to A1 for any protection to the unauthorized construction in premises in question of PW10. Per contra to version of PW2, DW2 also categorically stated in the cross examination by Ld. PP RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 79/84 CBI vs J.S Sehrawat etc. for CBI that he did not accompany A1 on motorcycle to shop of PW2 nor PW2 paid A1 bribe sum of Rs 1.25 lakhs nor he (DW2) returned back with A1 on motorcycle thereafter. Foregoing discussions bring into fore the fact that the genesis of the crime is suppressed and in the backdrop of the fact that on record there is no legally admissible evidence, oral or documentary, direct or circumstantial in nature, independent of sources which are likely to be tainted, so as to corroborate in any material particulars any of the material facts borne out of tainted evidence of these approvers, so as to confirm that the charged offences were committed or it was A1 who committed the charged offences or that A1 was in any way connected with the crime of taking of any alleged bribe sum of Rs 50,000/ from PW5/PW3 or taking of any alleged bribe sum of Rs 1.25 lacs from PW2 as a motive or reward for protecting the illegal constructions in properties of PW5/PW3 and PW10 respectively by abusing his official position of Junior Engineer in MCD, Karol Bagh Zone, Delhi by corrupt and illegal means during the period from November 2008 to January 2009 or A1 had prepared incorrect official records or A1 had committed forgery in the booking file of unauthorized construction in property number 2237, Shadi Khampur, Ranjit Nagar, Karol Bagh, New Delhi of PW5/PW3 and shifted its booking to the adjacent property of PW10, as a result of which demolition action was taken on the adjacent property of PW10. It is not proved on record as to when, where and how A1 collected any bribe sum as alleged from PW3/PW5 or from PW2 on behalf of PW10. On RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 80/84 CBI vs J.S Sehrawat etc. record, no act of A1 is proved by oral or documentary legally admissible evidence, direct or circumstantial showing or forbearing to show that in the exercise of his officials functions, A1 favoured or disfavoured PW5/PW3 and/or PW10 or PW10 through PW2 or disfavoured to any person or rendered or attempted to render any service to any of the prosecution witnesses/any person.
79. The shaken and uncorroborated testimonies of approver witnesses PW2 and PW3, which are wholly unreliable, not confirming with collateral circumstances as well as probabilities, but shrouded with grave suspicion and serious doubts, lead me to conclusion that it would be extremely hazardous to place implicit reliance on such shaken testimonies of approver witnesses PW2 and PW3 as from their testimonies it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is discard the tainted evidence of PW2 and PW3 in toto, relying upon the pronouncements of Apex Court in the cases of "Dalbir Singh v. State of Haryana" 2008 CRI. L. J. 3061;
"Zwieolae Ariel v. State of Madhya Pradesh", AIR 1954 SC 15; "Balaka Singh and others v. The State of Punjab", AIR 1975 SC RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 81/84 CBI vs J.S Sehrawat etc. 1962 and Suraj Mal (Supra). The material major contradictions, improvements, severe infirmities, discrepancies and embellishments embedded in the testimonies of the approver witnesses PW2 and PW3 have corroded the credibility and trustworthiness of these witnesses and these testimonies cannot be made basis to convict A1 in the absence of corroboration in material particulars from legally admissible evidence, reliable testimony, direct or circumstantial, oral or documentary, independent of sources which are likely to be tainted, for the serious offences in question; in the backdrop of the elicited investigation of this case conducted contrary to the law, procedure established in respect of the recordings of call conversations, transfer of call conversations in the compact disc from the hard disk of the computer system of Special Unit of CBI without taking measures to vouchsafe for authenticity and ruling out possibility of tampering or erasure of any part of the tape recorded call conversations and non sealing of the mobile phone instruments seized and non sending of mobile phone instruments part of Ex PW43/A (colly) and Ex PW43/B (colly) for obtaining forensic expert opinion on digital evidence contained therein; which investigation had caused serious prejudice to the accused at all stages of inquiry, investigation and trial. The tainted tape recorded conversations in question cannot be used as corroborative piece of evidence to the testimonies of approvers nor can be made the basis for conviction of the arraigned accused A1.
80. The substratum of the prosecution case has several holes RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 82/84 CBI vs J.S Sehrawat etc. which cannot be plugged. No new story can be reconstructed by this court. The elicited intrinsic circumstances speak volumes against the prosecution case and raise considerable amount of suspicion in mind regarding the complicity of A1 in the commission of alleged offences. Even falsehood is sometimes given an adroit appearance of truth, so that truth disappears and falsehood comes on the surface. This appears to be one of those cases. The aforesaid infirmities in the background of reasonable possibility of false implication of the accused, elicited above, renders the prosecution version not proved, beyond reasonable doubt. Fact, however, remains that in any criminal matter, prosecution is duty bound to prove its case to the hilt and beyond shadow of doubt. Prosecution is required to travel the distance from 'may be true' to 'must be true' which in the present case, the prosecution has failed to cover. No one can be convicted merely on the basis of preponderance of probabilities. Conduct of accused in respect of rebooking of the previously booked unauthorized construction in property no. 2237, Shadi Khampur, Ranjit Nagar, New Delhi is ostensibly deplorable and can be labelled as misconduct but misconduct has to be distinguished from criminal misconduct. Considered conclusion on entire aforesaid discussion is that the prosecution has failed to prove its case against A1 beyond reasonable doubt. Accordingly accused J.S Sehrawat (A1) is held not guilty and acquitted for the offences charged. His bail bond is cancelled. Surety is discharged.
RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 83/84 CBI vs J.S Sehrawat etc.
81. For want of requisite certificate of the Public Prosecutor of Central Bureau of Investigation in terms of Section 308 of Code of Criminal Procedure that any of the approver(s) PW2 and PW3 had violated the condition of the tender of pardon(a) by concealing anything essential, or (b) giving false evidence, at such examination under section 306(4)(a) of Code of Criminal Procedure; prosecution of any of the approvers amongst PWs 2 and 3 cannot be initiated for his/her/their trial.
82. A copy of judgment be given to the Central Bureau of Investigation free of cost.
83. Ahlmad is directed to page and bookmark the file so as to enable digitization of the entire record.
84. File be consigned to record room.
(Gurvinder Pal Singh) Announced in open court Special Judge (PC Act)(CBI)6, today i.e., 30/11/2013 Patiala House Court, New Delhi.
RC No. AC2/2009/A0001/SPE/CBI/NEWDELHI CC No. 20/12 84/84