Delhi District Court
Central Bureau Of Investigation vs Hari Ram on 29 January, 2024
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IN THE COURT OF SH. BHUPINDER SINGH:SPL. JUDGE,
CBI (PC ACT)-06, ROUSE AVENUE DISTRICT COURTS
NEW DELHI
CC No.271/2019
RC No.19(A)2016/CBI/ACB/N.Delhi
CNR NO. DLCT11-001080-2019
CENTRAL BUREAU OF INVESTIGATION
..... COMPLAINANT
VERSUS
SH. HARI RAM
S/o Late Sh. Kishan Lal
Under Secretary, NCERT,
R/o H.No. 2C/242, 1st Floor, Vasundhara,
Ghaziabad, U.P.
.......... ACCUSED
Date of institution : 30.09.2016
Date of reservation : 04.01.2024
Date of decision : 29.01.2024
JUDGMENT:
Brief Facts of the Case:
1. The brief facts of the case are that the written complaint dated 26.05.2016 was made by the complainant Sh. Neeraj Sharma, working CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.2 of 131
as Foreman in NCERT alleging demand of Rs. 50,000/- by the accused Sh. Hari Ram for disposing off at his own level a complaint against Sh. Neeraj Sharma. In the said complaint, it was mentioned that accused Sh. Hari Ram, Under Secretary, NCERT on 24.05.2016 called the complainant from his mobile to the mobile of the complainant and told him that there is a complaint against him regarding demand of bribe of made by him from some buyer. It is further stated in the said complaint that the accused told that he will explain the contents of the complaint on 25.05.2016, then he will pick the complainant in his car. It is further stated in the complaint that the complainant was picked up by the accused on the next day and was told that the accused has received a complaint against the complainant regarding some demand of bribe made by him from a buyer. It is further stated that the accused told the complainant that he will dispose off the complaint at his own level for a sum of Rs.50,000, if paid to him as bribe. It is further stated that the complaint's request for showing the complainant to him was denied by the accused and he was directed by the accused to pay the said bribe amount of Rs.50,000/- on 26.05.2016 and that he will make a call to the complainant in this regard.
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2. As such, the complainant, who did not want to pay the bribe amount, made a hand-written complaint to S.P., CBI, ACB, New Delhi on 26.05.2016 for taking action against the accused Sh. Hari Ram. Verification Proceedings:
3. As per charge-sheet, the verification of the complaint dated 26.05.2016 of the complainant Sh. Neeraj Sharma was carried out by Sh. Ramesh Kumar, Inspector, CBI, ACB, Delhi in the presence of independent witnesses namely Sh. Narender Kumar, Inspector, Food & Supply Officer, Circle No.67 (Babarpur), Food & Supply Department, Govt. of NCT of Delhi, CSC DDA Market, Mansarovar Park, Delhi-32. It is stated that a DVR duly fitted with memory card was given to the complainant for recording his likely conversation with the accused and the various mobile phone conversations between him and the accused were recorded in the memory card through DVR by keeping the mobile phone in loudspeaker mode in the presence of independent witnesses. It is stated that during verification proceedings, the accused agreed to accept Rs. 15,000/- as part payment on 27.05.2016 and on confirmation of the demand of Rs.15,000/- on the CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.4 of 131 part of the accused Sh. Hari Ram, regular case was registered against the accused Sh. Hari Ram, Under Secretary, NCERT. Trap Laying Proceedings:
4. Post registration of regular case, the investigation of the case was handed over to Sh. Harnam Singh, Inspector CBI, ACB, Delhi for investigation who, as TLO (Trap Laying Officer), constituted a trap team comprising of the complainant Sh. Neeraj Sharma, two independent witnesses namely Sh. Narender Kumar, Inspector, Food & Supply Officer, Circle No.67 (Babarpur), Food & Supply Department, Govt. of NCT of Delhi, CSC DDA Market, Mansarovar Park, Delhi-32, Sh. Surender Kumar Gaur, LDC, Office of Executive Engineer - III, Najafgarh Zone, SDMC, New Delhi, Sh. R. C. Sharma, Inspector, Sh. Ramesh Kumar, Inspector, Sh. Praveen Kumar, Inspector and other subordinate staff of CBI. It is stated that the trap team assembled in the CBI Office on 27.05.2016 where the independent witnesses and the complainant were introduced with each other and the purpose of assembly was explained. It is stated that the hand-written complaint dated 26.05.2015, the verification memo dated CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.5 of 131 26.05.2016 and the FIR were read over to all present by the TLO upto their satisfaction with the genuineness of the complaint.
5. It is stated that the complainant was asked to produce the money to be used as bribe amount and accordingly Rs.15,000/- comprising of 15 G.C. Notes of Rs.1000/- denomination were produced by him. It is stated that the distinctive number of the G.C. Notes were mentioned in the Handing Over Memo dated 26.05.2016 and the said amount was then treated with Phenolphthalein Powder by Inspector R.C. Sharma.
The demonstration explaining the purpose and significance of the use of Phenolphthalein Powder and its chemical reaction with solution of sodium carbonate and water was explained to all present by Sh. R. C. Sharma, Inspector. The personal search of the complainant was conducted by the independent witness Sh. Narender Kumar and nothing was left in his possession except his mobile phone bearing mobile No.9868287697 and the tainted bribe amount of Rs.15,000/- was put in his left side pocket of his shirt by witness Sh. Surender Kumar Gaur and direction was given to complainant not to touch the said tainted amount and to hand over the same to the accused on his specific demand and not otherwise.
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6. It is further stated that Sh. Narender Kumar, the independent witness produced the sealed DVR and CBI seal used during verification and the said DVR was opened and a new blank memory card was placed into it. After ensuring its blankness, the introductory voices of both the independent were recorded in it. It is further stated that the DVR fitted with the new memory card, was to be handed over to the complainant after reaching the spot with the direction to switch it on before entering into the conversation with the accused so as to record their likely conversation. It is stated that Sh. Narender Kumar, the independent witness was asked to act as a shadow witness and to remain as close as possible to the complainant and try to over hear the conversation between him and the accused and see the transaction of the bribe money which might take place. It is further stated that the complainant was also directed to give signal by making a call to mobile No.9818550370 of the TLO from his mobile phone or in alternative, to give signal by rubbing his face by both the hands. It is further stated that the other witness Sh. Surender Kumar Gaur was directed to remain with the trap party. It is further stated that the memory card used to record the conversation during verification, marked as Q-1, was seized CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.7 of 131 through handing over memo and taken into police possession. Thereafter, all the members except the complainant mutually searched each other to ensure that nothing incriminating is being carried out by anyone. A handing over/pre-trap memo was accordingly prepared and signed by all concerned. It is further stated that thereafter all the trap team members including both the independent witnesses and the complainant, left for the spot in two CBI vehicles.
7. It is further stated that at about 11.35 hours, the CBI team reached nearby NCERT Complex, Sri Aurbindo Marg, Delhi and subsequently, as per direction of TLO, the complainant made a call to the accused on his mobile No.9414084158 from his mobile No.9868287697 in the presence of independent witnesses and the said call was recorded in 4 GB memory card through DVR and was heard simultaneously by putting the mobile phone of the complainant in the loudspeaker mode. It is stated that during conversation, the accused informed that he is present in the office at First Floor but asked the complainant to reach at the 4th Floor of Zakir Hussain Block, Administrative Block, NCERT Complex. It is stated that thereafter the DVR fitted with memory card was given to complainant and the CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.8 of 131 shadow witness Narender Kumar was directed to proceed to 4 th Floor of the said Complex. It is further stated that after giving necessary directions to the shadow witness and the complainant regarding giving pre-decided signals, the complainant proceeded towards the 4th Floor followed by the shadow witness.
8. It is further stated that the complainant firstly reached to the office of the accused at first floor alongwith shadow witness but after not finding the accused there, made a call on his mobile phone, who asked him to come at 4th Floor. It is further stated that subsequently the complainant proceeded to the 4th Floor by stairs followed by shadow witness and the other team members including other independent witness, also followed them in a scattered manner. It is further stated that the complainant entered in a room to meet the accused at 4th Floor adjoining to left side stair case but the shadow witness remained outside the said room and rest team members remain present in the corridor of the 4th Floor. It is further stated that around 11.52 hours TLO received a call on his mobile from the mobile phone of the complainant indicating that the transaction was over. Thereafter, the TLO and other team members went inside the office of the accused CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.9 of 131 who was sitting on a chair and the complainant was sitting on a sofa which was lying on the right side of the door. The DVR given to the complainant was taken back from him and was switched off. It is stated that the complainant was asked about the transaction of tainted bribe amount on which the complainant informed that the accused had accepted the bribe amount of Rs.15,000/- from him in lieu of disposing off complaint against him from his right hand and put the money in the right side pocket of his pant. It is further stated that the TLO disclosed his identity to the accused on which the accused got perplexed and kept mum. It is stated that thereafter the right hand wrist of the accused was caught hold by Inspector Praveen Kumar. Further, Smt. Kanta Kelkar, Dy. Secretary, NCERT, New Delhi was informed about the incident and was requested to join the trap proceedings on the 4 th Floor which she did. It is further stated that Sh. Surender Kumar Gaur, independent witness was asked to recover the bribe money and he did so from the right side pocket of the pant of the accused. It is further stated that both the independent witnesses were requested to cross-check the denomination numbers mentioned in the pre-trap memo dated CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.10 of 131 27.05.2016 and after tallying, they signed on the page mentioning the denomination in the handing over memo as a token of its correctness.
9. It is further stated that colour-less solution of sodium carbonate with water was prepared in a neat and clean glass tumbler and accused was directed to dip his right-hand fingers in the said solution which on doing so, turned pink in colour. It is further stated that the solution was thereafter transferred into a neat and clean glass bottle and after capping the bottle, the neck of the bottle was wrapped with cloth tied with tag and sealed with CBI seal. It is stated that both the witnesses and the TLO signed on the cloth wrapper as well as on the label pasted on the table which was subsequently marked as "Right Hand Wash (RHW) in RC 19(A)/2016". It is further stated that thereafter again fresh colour-less solution of sodium carbonate with water was prepared in a neat and clean glass tumbler and the accused was asked to remove his pant in a dignified environment. Subsequently, right side pocket of pant was dipped into freshly colour-less solution of sodium carbonate and water and on doing so, the colour of said solution turned pink. It is further stated that thereafter said solution was transferred into neat and clean and glass bottle and sealed at the spot and after capping the bottle, CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.11 of 131 the bottle's neck was wrapped with cloth, tied with tag and sealed with CBI seal. It is further stated that both the witnesses and TLO signed on the cloth wrapper as well as on the label pasted on the bottle and was marked as "RSPPW in RC 19(A)/2016". It is stated that the inner side of the right side pant pocket was also signed by both the independent witnesses and TLO. It is further stated that complainant Neeraj Sharma was directed to narrate the sequence of the incidents which he did. It is further stated that Sh. Ram Prasad, Assistant, Office of Dy. Secretary, NCERT, New Delhi was called by the TLO to produce the alleged complaint against the complainant and he accordingly, produced the RTI application received in the office vide which certain information was sought against the complainant and the same was seized vide separate Production-cum-Seizure Memo dated 27.05.2016. It is further stated that it was informed that there is no other complaint received in the office from any buyer against Sh. Neeraj Sharma. It is further stated that a rough site plan was prepared by Sh. Ramesh Kumar, Inspector at the spot showing the positions of trap team members, independent witnesses and the accused which was duly signed by independent witnesses, Ramesh Kumar and TLO. It is further stated that CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.12 of 131 subsequently for further proceedings, the CBI team left the spot alongwith the accused at about 14.00 hours and reached the CBI Office at about 14.45 hours where he was arrested at about 16.00 hours in the presence of independent witnesses vide a separate Arrest-cum- Personal Search Memo and intimation of his arrest was communicated to his so through Inspector S.S. Gill, who was deputed to conduct the house search of the accused.
10. It is further stated that the recorded conversation of the spot was heard with the help of the DVR and some words were noted for taking specimen voice of accused. It is stated that the conversation also confirmed the demand and acceptance of bribe by the accused. It is stated that 4 GB Sandisk memory card was taken out from the DVR and kept in a plastic cover and marked as Q-2. The plastic cover was signed by both the independent witnesses and the TLO and the plastic cover containing memory card was again kept in a brown envelope and sealed and was signed by both the independent witnesses and TLO. It is further stated that the specimen voice of accused Sh. Hari Ram was taken in a new empty memory card through DVR which he tendered voluntarily in front of both the independent witnesses. It is further CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.13 of 131 stated that the opening and closing introductory voices of both the independent witnesses were also taken and after recording the specimen voice, the 4 GB Sandisk memory card was taken out from the DVR and kept in a plastic cover and marked as "S-1 RC-19(A)/16"
and sealed in an envelope which was signed by both the independent witnesses, accused Sh. Hari Ram and the TLO. It is further stated that till the arrangement of another pant, the accused was allowed to wear the same pant and after the arrangement of another pant, the pant of the accused from where bribe amount was recovered, was kept in a green colour envelope and sealed with CBI brass seal and marked as "pant of accused Hari Ram in RC-19(A)-2016" and was signed by both the independent witnesses and the TLO. It is further stated that DVR Make Sony used during the trap proceedings was kept in brown envelope and sealed with CBI brass seal which was signed by both the independent witnesses and TLO and marked as "DVR (Digital Voice Recorder). The recovered bribe amount of Rs.15,000/- was kept in a brown envelope and sealed using CBI brass seal and said envelope was signed by both the independent witnesses and the TLO. It is further stated that the sealed envelope containing bribe amount of Rs.15,000/-, sealed CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.14 of 131 right hand wash i.e. RHW in RC19(A)/16, the wash of right side pocket of pant i.e. "RSPPW in RC19(A)/16", sealed envelope containing DVR, sealed envelope containing Q-2, sealed envelope containing S- 1 were seized and taken into police possession vide Recovery Memo prepared by TLO. The impressions of the seal used for sealing the exhibits were taken on separate white sheets in the ink and in lak and same were also signed by both the witnesses and TLO. It is stated that the impression of the seal was also taken on the recovery memo. It is further stated that the TLO gave the seal to Sh. Surender Kumar Gaur, independent witness for keeping it in safe custody with the direction to produce the same as and when required by the Court and these proceedings were recorded in recovery memo. It is further stated that the CDRs of mobile/SIM used by complainant and the accused alongwith the relevant CAF and certificate under Sec.65 B of Indian Evidence Act was also collected. It is further stated that the said SIMs are registered in the name of complainant and accused and the CDR established that they talked to each other during the relevant time. It is further stated that the CFSL, CBI, Delhi vide its report No. CFSL-
2016/C-682 dated 08.06.2016 confirmed the presence of
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phenolphthalein in the exhibits i.e. RHW and RSPPW of accused Sh. Hari Ram confirming thereby that the tainted money was handled by accused Sh. Hari Ram. It is further stated that the exhibits Q-1, Q-2, S- 1 and DVR were also sent to CFSL, CBI, Delhi on 15.07.2016.
11. The report of forensic Voice Examination dated 21.02.2017 was filed by the I.O. in the Court on 10.03.2017 vide application of even date.
12. On receipt of sanction for prosecution of accused Sh. Hari Ram from the competent authority, charge-sheet was filed.
13. After completion of proceedings under Sec.207 Cr.P.C., charges were framed against accused Sh. Hari Ram under Sec. 7 of the Prevention of Corruption Act, 1988 and under Sec. 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act, 1988 to which accused pleaded not guilty and claimed trial.
14. To prove its case, the prosecution examined 19 witnesses who can be broadly categorized under the following heads:
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14.1 Official Witnesses:
(a) PW3 is Sh. Avnish Kumar, Vigilance Assistant, IOCL
Scope Complex, Lodhi Road, New Delhi. After seeing D-22 i.e transcription prepared memo RC 19(A) 2016/CBI/ACB/DLI, he deposed that the same was prepared in his presence and identified his signatures at point A. He deposed that on that day the transcription of conversation in three CDs was prepared in his presence and proved the Transcription Prepared Memo as Ex.PW3/A. He deposed that the transcription D-23 (from pages 78 till 99) was prepared in his presence as per the recorded conversation heard from the three CDs in question. He proved the transcription (D-23) as Ex.PW3/B. After being shown D-23 page 100 which is transcript of recorded conversation of the CDs prepared by CFSL and heard in the presence of the witness, he proved the transcript on which he signed at point 'A' on 13/7/2016 as Ex.PW3/C. CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.17 of 131
(b) PW4 is Sh. Ram Prakash, Assistant in NCERT, Sri Aurobindo Marg, New Delhi. He deposed that on 15/6/2016 he was posted in NCERT Establishment-III Section as Assistant. He, when shown D-9, forwarding letter dated 24/5/2016 from NCERT, RTI Cell, signed by the then Under Secretary Sh. S.S. Bisht, whose signatures he could identify, proved as Ex.PW4/A (colly.). He deposed that the RTI application was endorsed to him and the Dy. Secretary referred the same to Under Secretary Sh. Hari Ram on 24/5/2016, who marked it to the Section Officer on 24/5/2016. He deposed that it was his responsibility to prepare all the desired information / documents as asked for by an applicant before the Section Officer and then Under Secretary, who had to put it before the Dy. Secretary for onward transmission to the applicant. He deposed that application Ex.PW4/A (colly.) is a RTI application dated 17/5/2016 and it was received in their RTI Cell on 20/5/2016.
(c) PW5 is Ms. Kanta Kelkar, Dy. Secretary (Retd.), Establishment-II & III Section, NCERT, Shree Aurobindo Marg, Delhi. On being shown Ex.PW4/A (colly.) She deposed CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.18 of 131
that the application was received by her through RTI Cell in the capacity of the then Dy. Secretary in Establishment/NCERT. She deposed that it was received by her P.A. on 24/5/2016 and it was marked to Under Secretary Sh. Hari Ram on the same day. She identified the signatures thereupon at point B. She deposed that as per the RTI application Ex.PW4/A (colly.) of Sh. Ashok Kumar Sharma, information was called with regard to disciplinary action against Sh. Neeraj Sharma. She deposed that on 27-5-2016, CBI officials had contacted her in her office chamber with regard to proceedings going on at 4th Floor of their office regarding Sh. Hari Ram and was apprised that Sh. Neeraj Sharma, complainant had given a complaint against Sh. Hari Ram for demanding bribe of Rs.50,000/-. She deposed that when she reached at 4th Floor, she found that CBI officials and Sh. Hari Ram were present there. She further deposed that one of them took out from the right-side pocket of pant of Sh. Hari Ram, sum of Rs.15,000/-. She deposed that she informed Prof. Shreedhar Srivastava about the incident and the proceedings.
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CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi.
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(d) PW9 is Sh. T. Haokip Section Officer, NCERT, Sri
Aurobindo Marg, New Delhi. He deposed that all the RTI matters are received in RTI Cell which was headed by Under Secretary and in the year 2016, Sh. S.S. Bisht was the Under Secretary. He deposed that the application of the applicant after processing was sent to the concerned department to furnish the desired information to the applicant within 30 days. He was shown D-9, Ex.PW4/A (colly.) whereupon he deposed that the said request for information under the RTI Act was endorsed to him on 26/5/2016 and that it was not a complaint but an application for information under RTI Act. He deposed that on 24/5/2016, Sh. Hari Ram, Under Secretary under his signatures had endorsed the same to him and he had further endorsed the same to the Dealing Assistant Sh. Ram Prakash. He deposed that once the dealing assistant provided the information sought for by the applicant, he was to examine whether the information was covered under the RTI Act and whether the same can be given to the applicant or not and thereafter the file was placed before the Under Secretary, who placed it before the Dy. Secretary for CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.20 of 131
onward transmission to the applicant. He deposed that the application in question was processed and the information was supplied to the applicant later on within 30 days. In his cross- examination, he brought the relevant records to show that the information requested by the applicant Sh. Ashok Kumar Sharma was provided to him vide letter dated 6/6/2016 which he proved as Ex.PW9/D1. He also proved the letter dated 14/6/2016 vide which the applicant deposited a fee of Rs.36/- vide cheque dated 14/6/2016 in favour of NCERT, its copy was proved as Ex.PW9/D2 and the copy of the cheque was marked as Ex.PW9/D3. The copy of the letter dated 14/6/2016 along with the copy of the information provided to the applicant was proved by him as Ex.PW9/D4 (colly.). He also proved the original office noting pertaining to supply of information to the applicant as Ex.PW9/D5.
(e) PW10 is Sh. S. Ingarsal, SSO-1, Photo Division, CFSL, Lodhi Road, New Delhi. On being shown letter dated 5/7/2016 (D-20), he proved the same as Ex.PW10/A and deposed that vide that letter, SP, CBI, ACB, New Delhi was informed that the CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.21 of 131
case no. CFSL-2016/E-711 was ready and he was authorized to release both the original exhibits and the requisite copies in a sealed condition by his seal.
(f) PW11 is Sh. Mukesh Kumar Sharma, Head Clerk, MCD, Dy. Chief Accountant Engineering Department, Civic Centre, 10th Floor, New Delhi. He deposed that on 15/7/2016 he was one of the five officials from MCD department, who were requested to join the investigation and for such purpose, he had gone to CBI office where he reached around 10:00 am on that day. He deposed that three CDs were played, namely, Q1, Q2 and S1 in the CBI Office in his presence and in that CDs, there were a conversation and recording of Sh. Hari Ram and Sh. Neeraj Sharma. He deposed that Sh. Neeraj Sharma had identified the recorded voice of Sh. Hari Ram in his presence. He deposed that the Voice Identification Memo (D-24) dated 15/7/2016 was prepared in his presence and proved the same as Ex.PW11/A.
(g) PW12 is Professor Sh. Hrushikesh Senapaty, Director and Disciplinary Authority, NCERT, Shri Aurobindo Marg, New CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.22 of 131
Delhi. He proved the Sanction Order dated 19/9/2016 (D-33) issued by him as Ex.PW12/A. He deposed that the same was issued after carefully examining the material placed before him and after application of his mind on the CBI report and all its enclosures as mentioned in the Sanction Order. He deposed that the sanction was accorded after due application of his mind. He also proved the letter dated 19th / 20th September, 2016 signed by Ms. Abha Munzni, Under Secretary, NCERT vide which the sanction accorded by him was sent to the CBI as Ex.PW12/B. He also proved D-12 which is Order No.3-6/83/E.II/1700 dated 1st / 2nd June, 2016 vide which Sh. Hari Ram was suspended w.e.f. 22/5/2016 as Ex.PW12/C. He deposed that copy of the same was also sent to SP, CBI, ACB, New Delhi. In his cross- examination, he proved the copy of the request for sanction received by the CBI as Ex.PW12/D1. He admitted that the sanction accorded by NCERT was as per the Draft Sanction Order received from CBI and that the language of the two was verbatim same. He proved the copy of the Draft Sanction Letter as Ex.PW12/D2.
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(h) PW14 is Sh. Amitosh Kumar, Sr. Scientific Officer, Grad-
II (Physics) Cum Asstt. Chemical Examiner, CFSL, Lodhi Road, New Delhi. After deposing about his qualifications and experience, he deposed that in the present case a request letter dated 15/7/2016 bearing no.DL1/AC/Cr/19(A)/2016/7398 received from SP, CBI, ACB, New Delhi and contained three pages along with three sealed parcels, specimen seal impression and copy of transcription were received in his office on 15/7/2016 and the same were received by Sh. Sunil Kumar, LA (Physics), whose signatures he identified at point A. He deposed that the case was allotted to him by the Head of Department / Director Incharge Sh. N.B. Bardhan, whose signatures he identified at point B and a letter was exhibited as Ex.PW14/A. On being shown D-32, he deposed that it is a office copy of letter dated 15/7/2016 bearing no. DL1/AC/Cr/19(A)/2016/7398 and the same was marked as PW14/B. On being shown D-34, he deposed that the same is forensic voice examination report bearing no. CFSL-2016/P-836 dated 21/2/2017 and he identified his signatures at point A and his seal impression of CFSL at CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.24 of 131
point B. The same was exhibited as Ex.PW14/C. He deposed that the exhibits were opened on 8/2/2017 and the same were marked as Q-1, Q-2 and S-1 and that before opening the seals on the parcels, they were tallied with the specimen seals and were found intact. He deposed that Q-1 was found containing a microSD card of Sandisk make of 4 GB capacity which contained the questioned recorded conversations. A yellow coloured sealed envelope bearing signatures of PW14, it was produced and same was exhibited as Ex.PW14/D. On opening, it was found containing another white colour envelope in a cut open condition bearing the signatures of PW14 at point A. On opening the white envelope, another white colour sealed envelope was there. The same was already exhibited as Ex.PW7/B. The witness identified his signatures at point D. On opening the white ecoloured sealed envelope, red coloured plastic packet containing microSD card of Sandisk make. The red colour plastic packet was already Ex.PW7/O and the witness identified his signatures at point D. The SD card of 4 GB capacity was found to be further wrapped in a white CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.25 of 131
coloured plastic cover packet bearing his signatures at point D and the same was already Ex.PW7/C. He deposed that the microSD Card also bears his signatures on its back side and that it was the same memory card which he examined during his examination. The same was already Ex.PW7/C. He deposed that Ex.Q-2 was a micro SD card containing questioned recorded conversation. A yellow coloured sealed envelope already marked PW7/P bearing signatures at point A of the witness was produced and the same was exhibited as Ex.PW14/E. On same being opened, it was found containing another white coloured envelope already marked PW7/G in a cut opened condition bears the signatures of the witness at point A and the same white envelope exhibited as Ex.PW14/F. On opening the said white envelope, it was found containing another brown coloured sealed envelope Ex.PW7/N. The witness deposed that the same bears his signatures at point C. On opening the brown coloured sealed envelope, it was found containing red coloured plastic packet containing micro SD card of Sandisk make and the witness deposed that it bears his CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.26 of 131
signatures at point C. The said red coloured plastic packet was already exhibited as Ex.PW7/M. The said SD card of 4 GB capacity was further wrapped in a white coloured plastic packet bearing signatures of PW14 at point C and the same was already exhibited as Ex.PW8/A. The witness deposed that the said micro SD card bears his initial on the back side which was the same memory card which he examined during his examination.
He deposed that Ex.S-1 was a micro SD card containing specimen voice sample of the accused/Sh. Hari Ram and the complainant/Sh. Neeraj Sharma. A yellow coloured sealed envelope already Marked PW7/T bearing the signatures of PW14 was produced and the same was then exhibited as Ex.PW14/G. On being opened, it was found containing another white coloured envelope already marked PW7/S in a cut opened condition bearing the signatures of the witness at point A. The said white envelope then exhibited as Ex.PW14/H. On the same being opened, it was found containing another brown coloured envelope in cut opened condition already Ex.PW7/U. The witness identified his signatures at point A thereupon. On CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.27 of 131
opening the brown coloured envelope, it was found red colour plastic packet containing micro SD card of Sandisk make, bearing signatures of the witness at point B. The red colour plastic packet was already exhibited as Ex.PW7/R. The micro SD card of 4 GB was wrapped in a white coloured plastic packet bearing signatures of witness at point A and the same was exhibited as Ex.PW14/I. The witness deposed that the said micro SD card bears his initials at its back side with the same memory card which he examined during his examination.
He deposed that the questioned recorded conversation contained in the micro SD card marked as Q-1 and Q-2 and the specimen voice contained in the micro SD card were transferred to the instrument, namely, Speech Science Lab (SSL) for examination. He deposed that the questioned voice of the suspected persons were segregated from the recorded conversation and were compared with the respective specimen voice. He deposed that after comparing and identifying the questioned voice marked as Q-1 (1) (A), Q-1 (2) (A), Q-1 (4) (A), Q-1 (5) (A), Q-2 (1) (A), Q-2 (3) (A) with the specimen CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.28 of 131
voice S-1 (1) (A) it was found opined that the questioned voice marked as Q-1 (1) (A), Q-2 (2) (A), Q-1 (4) (A), Q-1 (5) (A), Q- 2 (1) (A), Q-2 (3) (A) and specimen voice S-1 (1) (A) are of the same person, namely, Sh. Hari Ram on the basis of auditory and spectrographic examination. He further deposed that similarly the questioned voice marked as Q-1 (1) (B), Q-2 (2) (B), Q-1 (4) (B), Q-1 (5) (B), Q-2 (1) (B), Q-2 (3) (B) with the specimen voice S-1 (2) (B) it was opined that the questioned voice marked as Q-1 (1) (B), Q01 (2) (B), Q-1 (4) (B), Q-1 (5) (B), Q-2 (1) (B), Q-2 (3) (B) and specimen voice S-1 (2) (B) were the same person, namely, Sh. Neeraj Sharma on the basis of auditory and spectrographic examination.
He deposed that the micro SD card marked Q-1, Q-2 and S-1 were also examined for editing / tampering. He deposed that after examination, it was detected that no tampering was there and accordingly, he prepared his detailed report, signed on each page and was sent to CBI, ACB through proper channel which is Ex.PW14/C. He deposed that the micro SD card was also CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.29 of 131
sealed with his official seal and sent to CBI, ACB along with the original report.
(i) PW15 is Sh. V.B. Ramteke, Principal Scientific Officer (Chemistry) Cum Asstt. Chemical Examiner, CFSL, Lodhi Road, New Dehi. After deposing about his qualifications and experience and on being shown D-10, the witness deposed that the same was an office copy of letter dated 2/6/2016 bearing no. DL1/AC/Cr/19(A)/2016/5778 of the then SP, CBI, ACB, New Delhi addressed to Director, CFSL. He deposed that vide his letter exhibits mentioned in the letter were sent to CFSL for chemical analysis. He proved the said letter as Ex.PW15/A. On being shown D-16, he deposed that it was a chemical examination report dated 8/6/2016 bearing no. CFSL-2016/C- 682 and proved the same as Ex.PW15/B. He deposed that the exhibits marked as RHW and RSPPW contained in two sealed glass bottles were examined separately by him and on chemical examination, both the above exhibits gave positive test for the presence of phenolphthalein and sodium carbonate. He deposed that after examination, the remnants of the exhibits were sealed CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.30 of 131
in the respective glass bottles with his official seal and also that during the examination, the seal impression along with cloth wrappers removed from exhibits bottles were also sealed in an envelope with his official seal. He deposed that the chemical examination report prepared by him along with the remnants of exhibits were sent to SP, CBI, ACB, New Delhi through proper channel. On being shown D-13, he deposed that it is a letter dated 10/6/2016 bearing no. CFSL-2016/C-682/2364 addressed to SP, SPE, CBI, ACB, 5-B, CGO Complex, Lodhi Road, New Delhi vide which intimation for collecting the report and exhibits were sent to SP, CBI by the then Director Incharge, CFSL. He proved the said letter Ex.PW15/C. On being shown the sealed bottle containing right hand wash (RHW) of accused Sh. Hari Ram, he identified his signatures at point C and the same was already exhibited as Ex.PW7/4. He deposed that it was the same bottle which he examined during examination. On being shown solution bottle captioned RSPPW, he identified his signatures at point C and the same was already exhibited as Ex.PW7/5. He deposed that it was the same bottle which he CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.31 of 131
examined during his examination. He identified his signatures and seal impressions of his initials at points A and B on a white coloured sealed envelope and the same was exhibited as Ex.PW15/D. The white coloured sealed envelope was opened and was found containing two clothes having seal impression of seal used by CBI during trap for sealing the exhibits. The witness proved the cloth mentioning as RHW as Ex.PW15/E and the cloth mentioning as RSPPW as Ex.PW15/F and deposed that these were the same cloth pieces by which bottle containing RHW and RSPPW washes were sealed during trap proceedings. 14.2 Material Witnesses:
(a) PW7 is Sh. Narender Kumar, Inspector in the Office of Food and Supply Department, Govt. of NCT of Delhi. He deposed that on 26/5/2016 he was called in CBI office to assist in some secret official duty where he met CBI/Insp.-Sh. Ramesh Kumar and Sh. Neeraj Sharma/Foreman, NCERT. He deposed that he was apprised that the accused had demanded a bribe from the complainant. He deposed that handwritten complaint of Sh.
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Neeraj Sharma was not shown to him at that time and as per his knowledge, the complaint was prepared later after verification.
He deposed that his voice was recorded through DVR by Insp./Sh. Ramesh Kumar and it was a blank memory card before his voice was recorded. He deposed that it was a new product which was opened from a packing in his presence. He deposed about the verification proceedings regarding a call received by Sh. Neeraj Sharma on his mobile which was listened by him and all other CBI Officials on speaker mode. He deposed that during conversation, on the clarification of Sh. Neeraj Sharma, Sh. Hari Ram told him to bring at least "15". He deposed that a DVR and the memory card was kept with him with direction to bring the same on the next day i.e 27/5/2016. He proved the verification memo dated 26/5/2016 as Ex.PW7/A. He identified his signatures at point 'A' on the third white envelope which was found inside one yellow sealed envelope received from CFSL and it was proved as Ex.PW7/B. He identified his signatures at point 'A' on the memory card, its cover and the same were proved as Ex.PW7/C and Ex.PW7/D respectively.
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He deposed that memory card was used in DVR which was given to him on 26/5/2016. The witness also identified his signatures at point 'A' on a brown envelope, sealed with the seal of CBI, ND, ACB and proved the same as Ex.PW7/E. After opening of the envelope, one DVR of Sony make was taken out and shown to the witness which he deposed to have been given to him on 26/5/2016 and the same was Ex.PW7/F. He deposed that he was told to come on next day at 9:30 am in the CBI Office and some directions were given to Sh. Neeraj Sharma, who was also told to bring the cash amount of Rs.15,000/-. He deposed that on 27/5/2016 when he went to the CBI Office, he met Insp. Ramesh Kumar, complainant Sh. Neeraj Sharma, one person Sh. Surender Kumar, CBI Official, namely, Sh. Sharma Ji and other officials. He deposed that the purpose of assembly was explained to all persons since Sh. Surender Kumar Gaur was a new person involved in the investigation. He also deposed that the complainant produced a sum of Rs.15,000/- which were in the denomination of Rs.1,000/-. He deposed that numbers of the notes were recorded in a memo. He deposed that he was told CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.34 of 131
to stay at a little distance from the complainant and watched the proceedings. He deposed about further explanation regarding the manner in which proceedings were to be conducted that is applying of powder on the notes produced by the complainant and finger wash when pant in colour-less solution of sodium carbonate turning pink in colour after the fingers touch the notes etc. He deposed that notes tainted with the powder were handed over to Sh. Neeraj Sharma. He deposed that he was told to accompany Sh. Neeraj Sharma and remained at a distance with a code "Fridge thik ho gya hai" to be spoken after completion of proceedings / transaction / trap. He deposed that the DVR which was given to him on 26/5/2016 was brought to the CBI Office along with CBI seal and a fresh memory card was arranged and inserted in the DVR. He again said that he was in doubt whether a new memory card was inserted or the earlier memory card was inserted in the DVR. He deposed that his sample voice and that of Sh. Surender Kumar Gaur was recorded in the DVR and the same was handed over to Sh. Neeraj Sharma along with the directions to switch it 'ON' the DVR on reaching CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.35 of 131
NCERT Office. He deposed that the same was switched 'ON' when he reached NCERT Office. He proved the pre-trap memo (D-4) as Ex.PW7/G. He deposed that he did not remember the conversation between the complainant and the accused when they reached at the spot i.e outside accused's office and thereafter they went to the first floor of NCERT office to meet the accused. He deposed that the complainant was being followed by him and rest of a trap members were behind them at suitable position. He deposed that the accused was not found in his office at the first floor and the complainant talked to the accused. He deposed that then they came to the ground floor and then went to the 4th Floor where they found the accused outside his office / room. He deposed that on seeing them, he went inside. He deposed that the complainant went towards washroom and then inside the office of accused. He deposed that he was at some distance from the complainant and further that thereafter he along with other persons of the team went inside the room of the accused where he found the complainant sitting on his sofa and accused sitting on the chair across the table. He CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.36 of 131
further deposed that the members of the team inquired as to who was Hari Ram and on being disclosed by the accused that he is Hari Ram, the team members disclosed their identity with regard to complaint given to them by the complainant. He deposed that DVR was switched- off after taking the same from the complainant and he was asked about the transaction of bribe amount, who disclosed that the same was accepted by the accused in his right hand and kept in right side pant pocket. He deposed that at that time one madam Ms. Kelkar of NCERT was also called in the room. He also deposed that the right hand of the accused was washed and the water turned pink. He further deposed that Sh. Surender Kumar had taken out the money from the pocket of Sh. Hari Ram. He further deposed that the water which had turned pink after washing the hand of Sh. Hari Ram was kept in a clean glass bottle. He also deposed that the amount taken out from the pocket of Sh. Hari Ram was Rs.15,000/-. He proved the right hand wash of the accused which was kept in a bottle bearing his signatures at point 'A' Ex.PW7/H. He deposed that the notes taken out from the right side pocket of CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.37 of 131
the accused Sh. Hari Ram and the same were counted in the presence of Ms. Kelkar. He further deposed that their numbers were tallied with the numbers of notes noted in the CBI office and they were found to be the same. He deposed that the notes were kept in an envelope. The witness identified his signatures at point 'A' on a brown envelope which was Ex.PW7/I. The envelope with the seal of CBI was opened and fifteen currency notes of Rs.1,000/- denomination were taken out. After tallying the numbers of these notes with the Pre-trap Memo D- 4/Ex.PW7/G, they were found to be the same and subsequently 15 notes were collectively as Ex.PW7/H. He deposed that they went to bathroom with the accused where his right side pant pocket was washed with white coloured chemical and it turned pink. He deposed that the same pink coloured chemical was kept in a bottle which was sealed with the seal of CBI. He identified his signatures at point 'A' on the second sealed bottle on which RC No.19A/16 was written and the same was exhibited as Ex.PW7/J. He deposed that the accused was returned his pant to enable him to wear it. He further deposed that in the office of CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.38 of 131
CBI, the pant was sealed in the evening and the accused was given 'pajama' to wear.
(b) PW8 is Sh. Surender Gaur, LDC, Office of Executive Engineer-III, Najafgarh Zone, SDMC, New Delhi. He deposed that on being instructed on 27/5/2016, he reached CGO Complex, CBI Office in the morning at 6:00 am where he briefed about the purpose of him calling there. He deposed that he was shown a complaint given by one Sh. Neeraj Sharma regarding demand of bribe by Sh. Hari Ram. He identified the complaint (D-1) dated 26/5/2016 to be the one that he shown on 27/5/2016. He deposed about the process of CBI Officers which was demonstrated the reaction of chemical powder with the currency notes. He detailed about the further instructions given to the complainant regarding how to indicate the raiding party. He deposed during the pre trap proceedings in CBI Office, a memory card and digital voice recorder was produced by Sh. Narender Kumar, another independent witness which was opened in the presence of all of them. He deposed that on a fresh memory card, introductory voice sample of the other CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.39 of 131
independent witness and himself was recorded through the DVR which he identified as Ex.PW7/F, after ensuring that the memory card was blank. He detailed about the other steps taken during the proceedings. He deposed that while the complainant and the other independent witness Sh. Narender Kumar proceeded to the office of the accused, he was with other team member at the ground floor. He deposed that on receiving a call from the complainant, the CBI Officers and himself rushed to the room at 4th Floor, where he found one of the CBI Official holding the hand of Sh. Hari Ram. He deposed that the complainant told that Sh. Hari Ram has taken the money from him from his right hand and kept in the right hand side pocket of the pant from where he recovered the money. He deposed about the tallied numbers and denominations of the recovered GC with those recorded in the pre trap memo and were found to be the same. He deposed about the post trap proceedings wherein the right hand of the accused Sh. Hari Ram was washed with chemical solutions which from white turned pink. He identified his signatures at point B on Ex.PW7/H and Ex.PW7/J. CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.40 of 131
Witness also identified the signatures at point 'C' on complaint dated 17/5/2016 as well as at point 'G' on nothing of NCERT dated 24/5/2016.
(c) PW13 is the complainant / Sh. Neeraj Sharma. He disclosed that vide complaint dated 26.05.2016 Ex.PW13/A, he made a complaint against the accused Sh. Hari Ram, Under Secy., NCERT for demanding Rs.50,000/- from him. He deposed that for the verification purpose, his complaint was marked to Sh. Ramesh Chand, Inspector CBI, ACB by S.P., CBI, who subsequently called Sh. Narender Kumar, Inspector, Food and Supply Department for being an independent witness. He deposed subsequent steps were taken by the I.O. for the verification of genuineness of complaint which included calling back to accused over telephone and recording the same. He deposed that after recording the calls between him and accused, the 4 GB memory card used for said purpose, was sealed and signed by all present. He further deposed that he was asked to arrange Rs.15,000/- in cash and visit the CBI Office again on 27.05.2016. He identified the signatures on the verification CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.41 of 131
memo Ex.PW7/A. He also identified the signatures on the white envelope containing the DVR with a memory card, already exhibited as Ex.PW7/E. He identified his signatures on the red coloured packing Sandisk, which was already exhibited as Ex.PW7/O. He also identified his signatures on the white coloured packing exhibited as Ex.PW7/C, containing a memory card which was used to record the conversation at the time of verification. After recording dated 26.05.2016 on the memory card was played, he identified the voice of accused as well as of his own on D-23 and the same was exhibited as Ex.PW13/B. He also identified his voice and that of accused Sh. Hari Ram in the recording dated 26.05.2016 on page 78 to page 80 and the same was exhibited as Ex.PW13/C. Similarly, he proved other recordings between him and accused as Ex.PW13/B to Ex.PW13/F. He further deposed that on 27.05.2016, he reached CBI Office and he met Inspector Ramesh Kumar and other CBI officials. He was introduced to one Sh. Surender Kumar, an independent witness. He deposed that thereafter the trap laying CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.42 of 131
proceedings were explained to all alongwith demonstration for the use of Phenolphthalein powder. He deposed that he produced a sum of Rs.15,000/- containing 15 general currency notes of Rs.1000/- denomination each and the same were treated with phenolphthalein powder. He deposed about the other formal proceedings regarding conducting of personal search by the independent witness and other instructions given by the CBI officials during the trap laying proceedings. He identified the signatures on the pre trap memo dated 27.05.2016 Ex.PW7/G. He deposed that after having left for CBI Office and reaching there at 11.30 hours, introductory voices of the independent witness were recorded in fresh memory card of 4 GB by using DVR make Sony and the same was given to him in a switched on condition for recording the conversation between him and the accused. He deposed that subsequently, a call was made to the accused who called him at the fourth floor and he went there alongwith the shadow witness followed by other trap team members in scattered manner. He deposed about the subsequent conversation in the office room of the accused including enquiry CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.43 of 131
by the accused if he has brought the money and his acceptance of the same by keeping them in his right side pant pocket and his subsequent apprehension by the CBI officers. He deposed about the subsequent steps taken by the CBI officers regarding taking right hand wash of the accused and also of his right side pant pocket. He identified the bottles Ex.PW7/H and Ex.PW7/I, containing the said washes. He also identified the pant which was worn by the accused the time of transaction Ex.PW7/I. He also identified the currency notes used in the transaction and the envelope containing them which was already exhibited as Ex.PW7/H and Ex.PW7/I. He also identified Ex.PW4/A which is RTI application dated 24.05.2016 which was seized by the CBI officials. It was further deposed that all the team members alongwith accused came back to CBI Office at about 2.30 p.m. whereupon recorded conversation on spot was heard with the help of DVR and some lines were taken specimen of himself and that of accused.
He further deposed that the said memory card was sealed in a plastic cover marked Q-2 and was signed by the independent CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.44 of 131
witness and other. The said memory card was played in the Court and he identified the voice of the accused as well as of himself and the corresponding transcript was proved as Ex.PW13/G. He deposed that subsequently, a new memory card was brought which was in a sealed cover and in the new memory card specimen voice of independent witnesses were recorded after ensuring that the memory card was blank. He further deposed that accused voluntarily agreed to give his voice sample which was also recorded in the same memory card and his sample voice was also recorded therein. On being played the same, he identified the voice of the independent witness, of himself and that of accused and proved the transcripts as Ex.PW13/H. He deposed that the pant which was worn by the accused was seized and rough site plan was prepared at the NCERT Office itself. He deposed that subsequently the accused was arrested at the CBI Office at 4'o clock and his arrest cum personal search memo was prepared which is already Ex.PW7/V. He identified his signatures at point C on the post trap memo Ex.PW7/W. He deposed that photocopy of the seal CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.45 of 131
impression part of D-10 bears his signatures at point B, page 39 of D-10 and page 44 of D-11. The same were exhibited as Ex.PW13/J1 and J2. On being shown D-24, he deposed that this voice identification memo prepared on 15.07.2016 vide which, he identified his own voice and that of the accused on different dates. He deposed that on completion of post trap proceedings, he left the CBI Office. He further deposed that he had not taken any loan from the accused. He also stated that nothing was taken by him from the accused for repair of A.C. 14.3Witnesses involved in verification/Trap Laying/Investigation:
(a) PW16 is Sh. Ramesh Kumar, Inspector, CBI/ACB/Delhi.
He deposed that on 26/5/2016 he was called by SP/Sh. Jagroop Gusinha in his chamber and was introduced to the complainant Sh. Neeraj Sharma and also a complaint lodged by him was endorsed to him for verification. He identified the complaint Ex.PW15/A. He deposed that one Sh. Narender Kumar was arranged as an independent witness by the duty officer. He deposed about the verification proceedings that happened in the CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.46 of 131
presence of the independent witness wherein conversation between the complainant and the accused regarding demand of a bribe of Rs.50,000/- for disposing a complaint was heard. He deposed that after verification proceedings, report was submitted to the SP and on the basis of verification memo, FIR was lodged. He identified his signatures at point C on the verification memo dated 26/5/2016 which was exhibited as Ex.PW7/A. He identified the plastic case marked as Q1 and his signatures at point C thereupon. The plastic case that he identified was already exhibited as Ex.PW7/C. He identified his signatures on the company paper packing at point C which contained plastic case and memory card and was marked as Q1 by him. The company paper packing was already exhibited as Ex.PW7/D. He identified his signatures at point C on the white envelope already Ex.PW7/B wherein he had kept the memory card and its plastic case in his company packing. He deposed that after registration of FIR, the investigation of the case was entrusted to Sh. Harnam Singh, Insp. CBI, who was deputed as CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.47 of 131
TLO of the case. He deposed that he also joined the proceedings as a trap team member.
He proved the memorandum dated 27/5/2016 which was already Ex.PW7/G and also identified his signatures on all the pages of memo Ex.PW7/G. He also identified the signatures of Sh. R.C. Sharma and Sh. Parveen Kumar, both Inspectors of CBI at points E and F and deposed that these two were also the trap team members on that day. He deposed about the procedures adopted / steps taken by the team for conducting the trap proceedings. He also identified the signatures on the post trap memo already Ex.PW7/W and identified his signatures at point D on each of its pages. He also identified mark of CBI Brass seal embossed on each the page of that memo at points E and deposed that the seal was handed over to independent witness for keeping the same in safe custody with a direction to produce the same as and when directed by competent authority. He identified his signatures at point C on the rough site plan Ex.PW7/U. On being specific question, he deposed about the respective positions of the trap team members. On being shown CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.48 of 131
letter dated 9-6-2016, addressed to Director, CFSL, New Delhi Ex.PW13/J2 and identified the photo impression of his signatures at point C.
(b) PW17 Insp. Harnam Singh, CBI, ACB, New Delhi. He deposed that on 27/5/2016, Sh. Jagroop S. Guisinha, SP called him in his room and gave a complaint, copy of FIR and verification memo in the presence of complainant Sh. Neeraj Sharma and Insp. Ramesh Kumar. He proved the FIR (D-3) as Ex.PW17/A and identified the signatures of Sh. Jagroop S. Guisinha at points A. He deposed that a trap team consisting of Insp. Ramesh Kumar, Insp. Parveen, Insp. R.C Sharma and two independent witnesses were formed by the SP. He explained to all the team members about the proceedings and showed the complaint, verification memo and copy of the FIR to them and explained the process. He deposed that the independent witnesses asked questions to satisfy the genuineness of the complaint. He deposed about the demonstration of the process and the procedure to be carried subsequently. He deposed that the DVR and brass seal were produced by independent witness CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.49 of 131
Sh. Narender Kumar and the same was taken into possession. He deposed that a new memory card was arranged and opened in the presence of independent witness and memory card was inserted in the DVR and the introductory voice of both the independent witnesses were recorded in the same. He identified his signatures at point F on all the sheets of pre trap memo already Ex.PW7/G. He deposed about the subsequent proceedings that took place after the trap team members left the CBI office at about 11 am in two government vehicles. He deposed about the subsequent proceedings regarding the complainant calling the accused on his mobile after they reached the office and accused in NCERT Campus, recording of the said call, the trap team members taking positions, he entering into the office of the accused on being signaled etc. He also deposed about the subsequent proceedings regarding calling Smt. Kanta Kelkar, Supervisor Officer of the accused, telling the recovered bribe amount with their number written in the pre-trap memo, doping the right hand fingers of the accused in the solution of sodium carbonate and fresh water and the same turning in the CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.50 of 131
colour. He identified the signatures at point D on the bottle RHW, already Ex.PW7/4 and deposed that the said bottle contained right hand wash of the accused and it was sealed during the trap proceedings on 26/5/2016. He deposed about the similar procedure having been carried regarding the pant worn by the accused in which he had kept bribe amount. He identified his signatures at point D on the said bottle RSPPWHW already Ex.PW7/4.
He deposed that subsequently on asking, one Sh. Ram Prakash, who was working as Assistant produced the file containing the RTI information in which certain information was sought regarding the complainant and the said file was seized by him vide production-cum-seizure memo dated 27/5/2016. He identified his signatures at point A on the same and the said production-cum-seizure memo was proved by him as Ex.PW7/B. On being shown D9, already Ex.PW4/A, he deposed that the same was seized by him vide production-cum- seizure memo Ex.PW17/B. He deposed that he issued a search warrant in the name of Insp. S.S. Gill for conducting the house CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.51 of 131
search of the accused. He deposed that subsequently he left for their office along with the trap team members, independent witnesses, accused and carried out further proceedings. On being shown a yellow envelope Ex.PW14/P which contained white envelope in opened condition Ex.PW14/F which further contained a brown envelope Ex.PW7/N containing Sandisk memory card paper packing Ex.PW7/M. He deposed that the plastic packing containing memory card Ex.PW8/A bears his signatures at point C. Sandisk memory card packing already Ex.PW7/M bears his signatures at point C and a brown envelope Ex.PW7/N bears his signatures at point D. He deposed that this very memory card was used for recording the conversations between the complainant and the accused during the trap proceedings held on 27/5/2016. He identified the pant worn by the accused at the time of trap proceedings and which was seized later on as Ex.PW7/L and he identified his signatures at point C thereupon. He also identified his signatures at point C on the light greenish envelope Ex.PW7/L in which the said pant was kept. On being shown 15 GC notes of Rs.1,000/- already CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.52 of 131
Ex.PW7/H contained in a yellow envelope Ex.PW7/I, the witness deposed that the same bears his signatures at point C. On being shown a white envelope Ex.PW15/D sealed with the court seal and subsequently opened and found to be containing two pieces of cloth already Ex.PW15/E and F. He deposed that the piece of cloth Ex.PW15/E bears his signatures at point B and C and piece of cloth Ex.PW15/F bears his signatures at point B. He deposed that the same were used to seal the bottles containing the right hand wash and pant pocket wash of the accused. On being shown a yellow envelope Ex.PW14/G containing a white envelope Ex.PW14/A containing a brown envelope Ex.PW7/Q, further containing a sandisk paper packing of the red colour Ex.PW7/R and containing a SD card wrapped in a white colour plastic packet Ex.PW14/I. The witness identified his signatures at point A on the wrapper of the white colour plastic containing SD card Ex.PW14/I. He also identified his signatures at point B on the red sandisk paper packing and on the brown envelope Ex.PW7/Q. He deposed that the specimen voice of the accused was taken after he volunteered CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.53 of 131
and deposed about the process thereof. On being shown a plastic colour Sony DVR Ex.PW7/F contained in a brown envelope Ex.PW7/E, the witness deposed that a brown envelope Ex.PW7/E bears his signatures at point C. He also identified the said DVR as the same one which was used during the verification proceedings and was handed over by him to the independent witness Sh. Narender Kumar. He also deposed that the same DVR was used to record the conversations in the memory card during trap proceedings. He also identified his signatures at point E on the post trap memo dated 27/6/2016 already Ex.PW7/W. He deposed that after completing the post trap proceedings, seal was handed over to the independent witness Sh. Surender Kumar Gaur. He also identified his signatures at point B on the site plan Ex.PW7/U and deposed that the same was prepared by Insp. Ramesh Kumar on his directions, on the spot and it shows position of the complainant, accused, trap team members and the independent witnesses. He deposed that the seizure-cum-personal search memo Ex.PW7/B was prepared by him on 27/5/2016 and he identified his CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.54 of 131
signatures at point C. He identified the photo impression of his signatures at point C on the facsimile impression of CBI seal Ex.PW13/J1 and J2.
(c) PW18 is Insp. Kamal Singh, ACB, CBI, New Delhi. He deposed that erstwhile DSP/ Rekha Sangwan had completed most of the investigation and the case was entrusted to him. He deposed that he filed the charge sheet on the basis of the sanction order obtained against the accused from the Sanction Authority and the other material collected during the investigation. He proved the charge sheet dated 30-9-20216 as Ex.PW18/A. On being shown the forwarding letter dated 19/20-9-2016 at page no.122 in D-33 along with original sanction order at page no.123 to 124 of D-33, the witness deposed that the said letter Ex.PW12/B was received in his office along with the original sanction order U/s 19 of the PC Act Ex.PW11/A. He identified signatures of Sh. Gagandeep Gambhir/SP at point B.
(d) PW19 is DSP/Rekha Sangwan, CBI Academy, Kamla Nehru Nagar, Ghaziabad, UP, who deposed that this case was CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.55 of 131
entrusted to her for investigation on 31-5-2016 after being transferred from TLO/Sh. Harnam Singh, Insp., CBI, ACB, Delhi. She deposed that Insp. Harnam Singh handed her over the complaint, verification report of the complaint, FIR, pre and post trap memo and other relevant documents and materials/articles. She deposed about the allegations made in the complaint and the proceedings carried out erstwhile officials before she was given the task for further investigation. She deposed that the pre task memo was collected by her from Insp. Harnam Singh and during investigation she examined the relevant witnesses, who participated in the pre trap proceedings and also complaint Q1 (memory card). She also deposed about the post trap memo collected by her from Insp. Harnam Singh and deposed that she examined the relevant witnesses, who participated in the post trap proceedings of the case and also heard Q2 (memory card). She deposed that after collecting the hand wash (RHW) and the pant wash (RSPPW), she sent these washes to CFSL for chemical examination. On being shown letter dated 2/6/2016 (D-10) and 9-6-2016 (D-11) along with CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.56 of 131
certificate/facsimile impression of brass seal, she deposed that letter dated 2-6-2016 was sent to Director, CFSL with the exhibits mentioned therein for expert opinion. She identified the signatures of one Sh. Anish Prasad at point A. She deposed that a certificate along with the letter was also sent by him which bears his signatures at point A. She deposed that along with this letter, the facsimile impression of CBI brass seal Ex.PW13/J1 used during the trap proceedings was also sent to Director, CFSL. She proved the letter dated 2-6-2016 along with the certificate as Ex.PW19/A. She deposed that letter dated 9-6-2016 was sent to Director, CFSL with the exhibits mentioned therein for expert opinion. She proved the letter dated 9-6-2016 along with certificate as Ex.PW19/B which contained the signatures of Sh. Jagroop S. Gusinha at point A which she identified. She also deposed that the facsimile impression of CBI brass seal Ex.PW13/J2 used during trap proceedings was also sent to Director, CFSL. On being shown order dated 01/02-06-2016 Ex.PW12/C, she deposed that this order was received from the CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.57 of 131
office of NCERT regarding suspension of the accused. She deposed about further steps taken by her during investigation. She deposed that vide letter dated 15-7-2016 (D-28), marked-A, she sought information from IDEA Cellular Ltd regarding call details and CAFs pertaining to mobile no.9868287697 of complainant Sh. Neeraj Sharma. She proved the said letter Ex.PW19/C. She deposed that her letter dated 21-7-2016 IDEA Cellular Ltd sent the details of CDR and CAF in respect of said mobile number and also gave a certificate U/s 65B of Indian Evidence Act as Ex.PW2/C (colly.) and with regard to the call details and the CAF Ex.PW2/A. She deposed that the call details are already Ex.PW2/B. She deposed that the Nodal Officer informed her according to CAF this mobile number was alloted to Sh. Neeraj Sharma. She further deposed that a letter dated 10- 6-2016 (D17), information was sought regarding the call details and CAF of mobile no.9818553070 from Bharti Airtel Ltd. She deposed that letter was written by the then SP Sh. Jagroop S. Gusinha whose signatures she identified at point A. She deposed that the said mobile number belonged to Insp. Harnam CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.58 of 131
Singh, who led the trap in the instant case. She deposed that she received the certificate Ex.PW6/A along with the CAF Ex.PW6/C (colly.) and the CDR Ex.PW6/B. She deposed that vide letter dated 15/7/2016 (D-27) she sought the CDR and CAF of mobile number 9414084158 from the Nodal Officer, Vodafone. She proved the same as Ex.PW19/D. She deposed that in response she received letter dated 19-7-2016, Ex.PW1/A along with the CAF Ex.PW1/A (colly.), CDR Ex.PW1/C and certificate U/s 65B of Indian Evidence Act Ex.PW1/B. She deposed that the said number belonged to accused. She deposed that in response letter dated 9/6/2016 Ex.PW19/B, Woman Ct. Sangeeta Devi was sent to Director CFSL with the letter authorizing her to collect the exhibits from the CFSL. She identified the signatures of Ct. Sangeeta Devi at point B on the said letter. She deposed that Ct. Sangeeta Devi put her signatures on the said letter as specimen signatures in his presence and proved the said letter dated 9/6/2016 as Ex.PW19/E. She deposed that during investigation, she played the CDs prepared by CFSL of Q-1, Q-2 and S-1 in the presence CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.59 of 131
of the witness Sh. Avnish Kumar and prepared transcript of the said conversations. She deposed that the Transcription Prepare Memo bears her signatures at point B and that of Sh. Avnish Kumar at point A. She deposed that she prepared the transcription already Ex.PW13/B to Ex.PW13/H. On being shown the voice identification memo Ex.PW11/A, she deposed that she prepared the same by playing the CDs pertaining to Q- 1, Q-2 and S-1 in the presence of witness Sh. Mukesh Kumar Sharma and the complainant to identify the voices in the CDs. She deposed that the said voice identification memo bears her signatures at point C and deposed that complainant Sh. Neeraj Sharma identified his voice as well as that of the accused. On being shown letter dated 7-6-2016 addressed to Ms. Vandana Gupta, Nodal Officer, MTNL, she deposed that letter was sent by the then SP Sh. Anish Prasad to MTNL requesting for CAF and CDR of two mobile numbers 94140844158 and 9868287697. She proved the same as Ex.PW19/F after identifying the signatures of Sh. Anish Prasad. She proved the letter received from MTNL in response thereof, as marked CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.60 of 131
Ex.PW19/X. On being shown letter dated 13/6/2016 addressed to Branch Head, SBI, N.I. Campus, New Delhi, she deposed that the said letter was sent by Sh. Jagroop S. Gusinha requesting to provide certified copy of statement of account of the complainant since the complainant had stated that he had borrowed Rs.15,000/- from one of his friend to pay the bribe money to the accused and deposited that amount in his bank account in SBI. She proved that letter dated 13/6/2016 as Ex.PW19/G. She deposed that since in response of the said letter, the bank did not provide the certified statement of account, another letter dated 30/6/2016 was written by her and proved the same as Ex.PW19/H. She also deposed that she received the certificate and statement of account Ex.PW13DX- 1 (colly.) from the bank. On being shown letter dated 15/7/2016 exhibited as Ex.PW14/B addressed to Director, CFSL. She deposed that the same was sent to Director, CFSL to compare the specimen voice containing memory card S-1 with the questioned voice containing Q-1 and Q-2. She deposed that the said letter bears signatures of the then SP/Ms. Gagandeep CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.61 of 131
Gambhir and on identifying her signatures she proved the certificate as Ex.PW19/J. She deposed that after completion of investigation, a CBI report along with the statements of witnesses and documents were sent to the disciplinary authority of the accused seeking sanction for prosecution. On being shown letter dated 2/6/2016 Ex.PW15/A (colly.) certificate and the specimen impression of the CBI brass seal, she deposed that the said letter was received by CFSL and it was the CFSL copy which was sent by CBI. On being shown letter dated 15/7/2016 Ex.PW14/A, she deposed that the letter is CFSL copy which was sent by CBI in respect with Q-1, Q-2 and S-1 for comparison of voice. On being shown letter dated 10-6-2016 Ex.PW15/C, she deposed that the letter was received from Incharge, Director, CFSL in the CBI Office which was marked to her. On being shown letter dated 15/6/2016 addressed to Director, CFSL, she deposed that the letter was sent by the then SP/Sh. Jagroop S. Gusinha whose signatures she identified at point A. She proved the same as Ex.PW19/K. She also identified the signatures of Ct. Suresh Kumar, CBI, ACB, Delhi, who was authorized to CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.62 of 131
collect the exhibits and reports from CFSL in response to CFSL letter dated 10/6/2016. On being shown D-16 i.e chemical examination report Ex.PW15/B, she deposed that she received the same along with the exhibits from CFSL and identified her signatures at point B thereupon. She proved the letter dated 10/6/2016 written by Sh. Jagroop S. Gusinha whose signatures she identified at point A and proved the same as Ex.PW19/C. On being shown chemical examination report Ex.PW15/B, she deposed that all the articles were properly sealed and forwarded under her supervision to the CFSL which is clear in para-4 of the said report. On being shown letter dated 2/6/2016 Ex.PW19/A (D-10) she deposed that the said letter CFSL acknowledged that they have received both the bottles in duly sealed condition. On being shown letter dated 9/6/2016 Ex.PW19/B, she deposed that vide this letter, the CFSL acknowledged that they received three duly sealed envelopes containing the exhibits of the case. She deposed that she received Q-1 in Ex.PW7/B in a sealed condition and same was forwarded to CFSL for expert opinion. She further deposed that CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.63 of 131
she received Q-2 in brown colour envelope Ex.PW7/N in a sealed condition and the same was forwarded to CFSL for expert opinion. She deposed that she received S-1 in a brown colour envelope Ex.PW7/Q in a sealed condition and same was forwarded to CFSL for expert opinion. She deposed that she received the DVR in a sealed condition in a brown colour envelope Ex.PW7/E in a sealed condition. She deposed that she received the brown colour envelope Ex.PW7/I and green colour envelope Ex.PW7/K in sealed condition. Further she detailed about the conclusion arrived by her after investigation and consequent proceedings. She deposed that before being transferred from ACB, Delhi on 4/8/2016 she had submitted her investigation report to the then SP, ACB, Delhi and a CBI report was in process to be sent to disciplinary authority for getting sanction for prosecution U/s 19 of the PC Act, 1988. She deposed that she recorded the statements of various witnesses and she identified the accused correctly.
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14.4 Other witnesses:
(a) PW1 is Sh. Saurabh Aggarwal, Nodal Officer, Vodafone
Mobile Services Ltd. He appeared on behalf of Sh. Israr Babu (D-19), who was his colleague and whom he had seen signing during the course of his employment with the Vodafone Mobile Services where he was working since October, 2010. Since, he could identify the signatures of Sh. Israr Babu, he proved the letter dated 19/7/2016 accompanied with photocopy of Mobile Application Form of accused Sh. Hari Ram, his photocopy of election ID card and photocopy of his Mobile Number Portability Form as Ex.PW1/A (colly.). He also proved the Certificate U/s 65B of Indian Evidence Act given by Nodal Officer, Sh. Israr Babu as Ex.PW1/B and the CDR of phone number 9414084158 for the period from 24/5/2016 to 28/5/2016 as Ex.PW1/C.
(b) PW2 is Sh. Pawan Singh, Nodal Officer, IDEA Cellular Ltd., New Delhi. He proved the letter dated 15/7/2016 written by DSP, CBI to Nodal Officer of IDEA Cellular Ltd. requesting CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.65 of 131
for CDRs and CAF (for the period from 24/5/2016 to 28/5/2016) in respect of mobile number 9868287697 as Marked 'A'. He deposed that the said telephone number was in the name of Sh. Neeraj Sharma. He proved the CAF given by Sh. Neeraj Sharma and other supporting documents as Ex.PW2/A (colly.), the CDR from 24/5/2016 to 28/5/2016 as Ex.PW2/B and the Certificate U/s 65B of Indian Evidence Act as Ex.PW2/C.
(c) PW6 is Sh. Chander Shekhar, Nodal Officer Bharti Airtel Ltd. Okhla, New Delhi. On being shown letter dated 10/6/2016 addressed by SP CBI to Nodal Officer, Bharti Airtel Ltd. (D-
17), Certificate U/s 65B of Indian Evidence Act given by one Sh. Surender Kumar and CDR from 26/5/2016 to 27/5/2016 (CDR) of mobile number 9818553070 and Customer Relationship Form 'individual/company reimbursed' in the name of Sh. Harnam Singh and supporting documents attached along with it, he identified signatures of Sh. Surender Kumar at point 'A' on the Certificate U/s 65B of India Evidence Act stating that he had seen him signing during the course of his employment. He proved the Certificate U/s 65B of Indian CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.66 of 131
Evidence Act as Ex.PW6/A. He proved the CDR as Ex.PW6/B, Customer Relationship Form with enclosed documents as Ex.PW6/C (colly.).
Statement u/s 313 Cr.P.C
15. After closure of the evidence from the Prosecution side, statement of accused was recorded under Sec. 313 Cr.P.C. In statement U/s 313 Cr.P.C accused Sh. Hari Ram denied any transcription having been prepared in the presence of PW3/Sh. Avinash Kumar as deposed by him. He denied being outside his office as deposed by PW7/Sh. Narender Kumar in his evidence. He has stated that all the CBI Officers pressurized him to admit that he has taken bribe and further stated that he tried to explain to them that the complainant/Sh. Neeraj Sharma made a false complaint against him and that the amount which was given by the complainant was his (of the accused) own money that was taken from him by the complainant on 29/4/2016 for arranging a second hand AC. He denied the process regarding his hand wash being taken and the amount of Rs.50,000/- taken out from his pocket, as deposed by PW7/Sh. Narender Kumar in his evidence. He also denied CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.67 of 131 the further post trap proceedings stating that no such things happened before him. He admitted that he voluntarily agreed to give his specimen voice. He stated that his hand wash was not taken and no bottle was sealed. He also stated that he was asked to remove his pant but, no right side pocket pant washed was taken. He admitted having been arrested by the CBI. He stated that the sanction authority Professor Sh. Rishikesh Senapati, who was examined as PW12 did not apply his mind while passing sanctioning order and acted under the pressure of CBI. He denied his hand wash or right side pocket pant wash having been taken during proceedings. He stated that all PWs deposed against him at the behest of CBI and that he had been falsely implicated in the present case.
Defence Evidence
16. Accused examined four witnesses in his defence.
(a) DW1 is Sh. Jai Prakash Bhulania. He deposed that he was working in NCERT and retired as Senior Store purchase officer on 31/10/2017. He deposed that he knew the complainant Sh. Neeraj Sharma as he was working in NCERT, involved in the CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.68 of 131
job of AC, heater repairing and other electrical repairing works in NCERT. He deposed that the complainant was also running a personal shop of AC repair in Dariya Ganj, Delhi. He deposed that he also knew the accused Sh. Hari Ram as he was working in NCERT. He deposed that he used to accompany the accused/Sh. Hari Ram to NCERT and used to give lift to him while going to the office in his car. He deposed that before the institution of the present case, accused/Sh. Hari Ram told him that he had given one AC for repair to the complainant/Sh. Neeraj Sharma at his private workshop and that after repair, he had given approximately Rs.17,000/- to complainant/Sh. Neeraj Sharma against the expenses. He deposed that accused/Sh. Hari Ram also told him that for the said amount, complainant/Sh. Neeraj Sharma had also promised to give him one old AC and that the complainant/Sh. Neeraj Sharma had not given him that old AC as promised and also did not give the repair expenses to the person, who actually repaired the AC. He deposed that he was also told by the accused Sh. Hari Ram that the AC was got repaired by the complainant/Sh. Neeraj Sharma from M/s P. R. CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.69 of 131
Enterprises, which was a proprietorship concern of one Sh. Prithvi Singh. He deposed that he was aware of the complaint as stated in D-9 against the complainant/Sh. Neeraj Sharma that was shown to him on that day and went on to depose that there were 5/6 cases pending against the complainant/Sh. Neeraj Sharma instituted mostly by his brothers which are pending in Tis Hazari Courts and one before the Hon'ble High Court of Delhi. He deposed that in one of the cases, he also stood surety for the complainant/Sh. Neeraj Sharma. He deposed that ones he discussed the matter with accused Sh. Hari Ram with the complainant/Sh. Neeraj Sharma, but the complainant/Sh. Neeraj Sharma while shouting asked him to mind my own business. He deposed that the accused Sh. Hari Ram had no role to play in the RTI application filed by the elder brother of the complainant/Sh. Neeraj Sharma except for forwarding the application and its reply. He deposed that a complaint was lodged against the complainant/Sh. Neeraj Sharma by one Sh. V. B. Patil, Technical Officer regarding his mis-behavior. He deposed that one complaint was also filed against the CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.70 of 131
complainant/Sh. Neeraj Sharma by said Sh. Prithvi Singh, proprietor of M/s P. R. Enterprises.
(b) DW2 is Sh. Prithvi Raj Singh. He deposed that he knew the complainant/Sh. Neeraj Sharma, who was working in NCERT. He deposed that in the year 2016, he was doing the work of repair of air-conditioners through Singh Refrigeration. He deposed that he had written the letter dated 28/7/2016 Ex.DW2/1 to NCERT. He deposed that he received a telephonic call for AC repair from accused/Sh. Hari Ram and he had sent his two employees to his residence for the purpose. He deposed that the AC was repaired and a bill of Rs.2,200/- was raised. He deposed that thereafter, accused/Sh. Hari Ram asked him about the cost of an old AC and he was told that the same can be arranged for about Rs.10,000/-. He deposed that for about 2/3 months, the payment of the aforesaid Rs.2,200/- was not made and he was told by accused/Sh. Hari Ram that the said amount was paid by him to the complainant/Sh. Neeraj Sharma. He deposed that the complainant/Sh. Neeraj Sharma did not pay the CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.71 of 131
amount to him and thereafter the letter Ex.DW2/1 was written by him.
(c) DW3 is Sh. Vishwas Rao Baji Rao Patil. He deposed that a letter dated 14/6/2016 was written by him to Secretary, NCERT and proved the same Ex.DW3/1. He deposed that the complainant/Sh. Neeraj Sharma worked with NCERT and for few months worked under him. He deposed that due to indulgence of the complainant/Sh. Neeraj Sharma in group-ism and conspiracies, he was surrendered by various departments and no one was interested to taking him back. He deposed that as such, the complainant/Sh. Neeraj Sharma got angry with him and started threatening him through messages sent through some other persons. He deposed that the threats were given after the present case including threat to implicate him in a trap case like accused Sh. Hari Ram.
(d) DW4 is Sh. Hari Ram himself. He deposed that he got acquainted with the complainant/Sh. Neeraj Sharma in May/June, 2016, who had come to him for some official work.
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He deposed that he asked the complainant/Sh. Neeraj Sharma to repair the AC installed at his residence and on checking the AC, the complainant/Sh. Neeraj Sharma told him it would cost him about Rs. 2,200/- for the repair work. He deposed that on being asked the prices of second hand AC, he was told by the complainant/ Sh. Neeraj Sharma that the same can be arranged for Rs.15,000/-. He deposed that he gave the work of repair and for arranging of the second hand AC, the complainant/Sh. Neeraj Sharma had promised to pay him at the time of his salary was paid. He deposed that his AC was repaired by him on 29/04/2016, he withdrew Rs.30,000/- from his bank account and paid Rs. 17,200/- to him regarding the repair and advance payment of second hand AC. He proved the relevant entry in his passbook as Ex. DW4/1. He deposed that on that day i.e 29/04/2016 complainant/Sh. Neeraj Sharma assured him to provide AC within 15 days. He further deposed that the AC was repaired by the complainant/Sh. Neeraj Sharma again developed some problems and he sent two persons on 22/05/2016 at his residence for the repairing of the same and the CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.73 of 131
AC was repaired by them. He deposed that those workers were sent by one Sh. Prithvi Singh and on being for repair charges by them that he had already given the charges to the complainant/Sh. Neeraj Sharma and talked to him about the repair charges and non-delivery of AC. He deposed that the complainant/Sh. Neeraj Sharma told him that he would speak to Sh. Prithvi Singh and went away. He deposed that he apprised Sh. Prithvi Singh about the same when he came in the afternoon for demanding the repair charges. He deposed that a complaint Ex. DW4/2 was also lodged by Sh. Prithvi Singh. He deposed that on the basis of the letter Ex. DW4/3 to the Secretary which was sanctioned by the Secretary, the Section Officer submitted the file to him to sign the transfer order of the complainant/Sh. Neeraj Sharma on 24/05/2016. He deposed that he signed the said transfer order on the same day which he proved as Ex.DW4/4. He deposed that due to the same, the complainant/Sh. Neeraj Sharma got angry with him and asked him if there was any RTI query against him. He deposed that he was told about the one such query and he insisted for the CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.74 of 131
copy of the same but on his refusal, he went back. He deposed that he also narrated the said facts to one Sh. J.P. Bhulania, Senior Store Officer, NCERT from whom, he used to get lift. He deposed that on 26/05/2016, he again asked the complainant/Sh. Neeraj Sharma to refund his money and he told that he shall pay Rs. 15,000/- on the next day and the balance amount on the getting of his salary. He deposed that on 27/05/2016 at about 11:00 a.m., the complainant/Sh. Neeraj Sharma came to his office at 4th Floor where in the chamber, he offered and returned Rs. 15,000/- to him which he took. He deposed that thereafter 5-6 persons entered in his chamber and told him that they were from CBI and that he had accepted bribe from the complainant/Sh. Neeraj Sharma. He deposed that he told them the said facts but he was later arrested in the present case. He deposed that on September, 2016 after he was given bail, he went to his office where Sh. Ramesh Chand, Foreman, a friend of complainant/Sh. Neeraj Sharma came to him and told that the complainant/Sh. Neeraj Sharma was ready to withdraw his complaint on payment of Rs. 50,000/- which shall be paid to CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.75 of 131
one Sh. Ramesh Kumar in CBI. He deposed that he refused for the said amount and gave a complaint to the Director, NCERT which he proved as Ex. DW4/5.
Thereafter matter was posted for final Arguments. Arguments advance by Ld.PP/CBI
17. Ms. Bindu, Ld. PP/CBI who also filed written submissions, argued that the Sanction Order Ex.PW12/A proved by PW12/Professor Hrushikesh Senapaty, Director and Disciplinary Authority, NCERT, Shri Aurobindo Marg, New Delhi stands duly proved. It was further argued that the CDR/CAF of Mobile No.9868287697 of the complainant/Sh. Neeraj Sharma and CDR/CAF of Mobile No.9414084158 in the name of the accused duly proved that they conversed with each other at the relevant time. It was further argued that the initial demand/demand was proved by PW7/Sh. Narender Kumar, PW13/Sh. Neeraj Sharma and PW16/Sh. Ramesh Kumar. It was also argued that the verification memo Ex.PW7/A qua verification proceedings dated 26/5/2016 conducted by PW16/Insp. Ramesh Kumar in the presence of independent witnesses is also duly proved. It CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.76 of 131 was argued that the demand and acceptance of bribe on the spot and the recovery of bribe amount has been proved by PW5/Ms. Kanta Kelkar, PW7/Sh. Narender Kumar, PW8/Sh. Surender Gaur and PW13/Sh. Neeraj Sharma. It was further argued that the handing over and the recovery of RTI application has also been proved by PW4/Sh. Ram Prakash, PW5/Ms. Kanta Kelkar, PW7/Sh. Narender Kumar and PW8/Sh. Surender Gaur. She further argued that the case also stands proved scientifically as voice comparison of Q1 and Q2 with S-1 stands duly proved as has come in the testimony of PW14/Sh. Amitosh Kumar, Senior Scientific Officer, CFSL, Lodhi Road, New Delhi. It was further argued that chemical analysis of washes of RHW, LHW and pant pocket wash also support the case of the prosecution. It was also argued that the preparation of transcript and voice identification memo has also been duly proved by PW2/Sh. Pawan Singh, PW11/Sh. Mukesh Kumar Sharma and PW18/Insp. Kamal Singh. It was argued that there are lots of contradictions in the testimonies of the defence witnesses examined by the accused on his behalf and cannot be relied upon. It was argued that the prosecution has been able to prove its case beyond reasonable doubt regarding demand/acceptance of the bribe CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.77 of 131 amount, recovery of the bribe amount coupled with the scientific evidences i.e voice comparison and chemical analysis of hand washes and pant pocket washes of the accused and all the witnesses have corroborated the version of the complaint and the complainant. It was thus prayed that the accused be accordingly convicted. Arguments advanced by Ld.Defence Counsel
18. Sh. Ajit K. Singh, Ld. counsel for the accused has argued that the demand and purpose of demand are completely disputed. It was argued that the recorded conversations and transcriptions cannot be relied upon since many of the recorded conversations are missing, deleted and multiple DVRs were used in trap proceedings. It was argued that no valid Sanction was obtained for prosecution and the CBI Manual was not followed in the alleged trap proceedings. It was argued that there is no reasonable connection between the act and discharge of official duty of the accused and that the complainant is a person of dubious character, not a truthful witness and cannot be relied upon. It was argued that there was inordinate/unexplained delay in filing of the FIR and there are material inconsistencies / improvements in the CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.78 of 131 statements of the witnesses. It was argued that the prosecution case does not stand corroborated by any independent witness and the corroborated statements indicates clearly that the amount so recovered from the accused was not a bribe amount.
19. Ld. Counsel for the accused also filed written submissions and relied upon the following Judgments:-
Dashrath Singh Chauhan Vs. CBI, (2019) 17 SC Cases 509 M.K. Harshan Vs. State of Kerala, (1996) 11 SC Cases 720 Bindeshwar Vs. The State of Bihar, 2018 SSC Online Pat 1758 B. Jayaraj Vs. State of Andhra Pradesh, (2014) 13 SC Cases 55 State of Maharashtra Vs. Shridhar Madhavrao Murti, 2020 SCC Online Bom 2047 CBI Vs. Ram Swarop Chandel & Ors., 2020 SCC Online Del 1264 P. Satyanarayana Murthy Vs. District Inspector of Police, State of Andhra Pradesh & Anr., (2015) 10 SC Cass 152 C.M. Grish Babu Vs. CBI, Cochin, Hon'ble High Court of Kerala, (2009) 3 SC Cases 779 T. Subramania Vs. State of T.N., (2006) 1 SC Cases 401 Punjabrao Vs. State of Maharashtra, (2002) 10 SC Cases 371 State of Kerala & Anr. Vs. C.P. Rao, (2011) 6 SC Cases 450 Panalal Damodar Rathi Vs. State of Maharashtra, (1979) 4 SC Cases 526 CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.79 of 131
The State of Maharashtra Vs. Anandrao Rajaram Patil, 2020 All MR (Crl.) 237 V. Sejappa Vs. State by Police Inspector, (2016) 12 SC Cases 150 Nilesh Dinkar Paradkar Vs. State of Maharashtra, (2011) 4 SC Cases 143 Anil Kumar Tito @ Anil Kumar Sharma Vs. State NCT of Delhi,2015 SCC Online Del 9867 Ravindra Mahadeo Kothamkar Vs. The State of Maharashtra, 2015 SCC Online Bom 6558 State of Maharashtra Vs. Mallinath Rajaram Harsure, 2020 SCC Online Bom 972 Sulen Singh and Another Vs. State of Jharkhand, Through CBI, 2020 SCC Online Jhar 631 Shri Arya Chowdhury Vs. The State Through CBI, 2006 SCC Online Cal 103 C.B. Nagaraj Vs. State by Lokayuktha Police, 2013 SCC Online Kar 5293 State by Lokayuktha Police Vs. N.C. Nage Gowda, 2012 SCC Online Kar 2429 Meena Vs. State of Maharashtra, (2000) 5 SC Cases 21 State of Maharashtra Vs. Kundlik Sugandhrao Aravade, 2017 SCC Online Bom 756 Subhash Chand Chauhan Vs. CBI, 2005 (79) DRJ 644 Suraj Mal Vs. State (1979) 4 SC Cases 725 Sadhu Singh Vs. State of Punjab, 1997 SCC Online P&H 329 CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.80 of 131
CBI Vs. Ashok Kumar Aggarwal, (2014) 14 SC Cases 295 Joginder Singh Malik Vs. CBI, 2022 SCC Online Del 4298 Ajay Gupta Vs. State Through CBI, 2022 SCC Online Del 3549 : (2022) 295 DLT 182
20. Considered.
21. At the outset, Ld.Defence Counsel attacked upon the Sanction Order Ex.PW-12/A. The contention of Ld. Defence Counsel is that there was no application of mind while according sanction for prosecution since all documents were not placed before the sanctioning authority by the CBI. It was also contended that a draft sanction Ex.PW-12/D-2 was sent by CBI to the sanctioning authority and the sanction order Ex. PW-12/A which is its carbon copy was passed under pressure and at the instance of the CBI.
22. Here, it is pertinent to mention Section 19 of Prevention of Corruption Act , which reads as under :
:
19. Previous sanction necessary for prosecution. -- (1) No court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction, --
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government; (b) in the case of a person CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.81 of 131
who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government; (c) in the case of any other person, of the authority competent to remove him from his office.
(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-- (a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub- section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby; (b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;
(c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings. (4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings. Explanation. --For the purposes of this section, -- (a) error includes competency of the authority to grant sanction; (b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature.
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23. Hon'ble Apex Court in 'R.S. Nayak Vs A.R Antulay AIR 1984 SC 684' observed as under:
"In catena of decisions it has been held that the authority entitled to grant sanction must apply its mind to the facts of the case, evidence collected and other incidental facts before according sanction. A grant of sanction is not an idle formality, but a solemn and sacrosanct act which removes the umbrella of protection of government servants against frivolous prosecution and the aforesaid requirement must, therefore, be strictly complied with before any prosecution could be launched against a public servant."
24. The non obstante clause provided in the section that 'No court shall take cognizance of such offence, except with the previous sanction'. clearly provides for its character and the objective sought to be achieved through it. The use of words 'No' and 'shall' make it abundantly clear that there is absolute bar on the exercise of power of the court to take cognizance of an offence. In absence of a valid sanction, the court is precluded from even taking notice of the offence or exercising its jurisdiction, with respect to a public servant. In the case in hand, the competency of the sanctioning authority to grant sanction for prosecution of accused has not been challenged. The only contention being that the draft sanction order Ex.PW-12/D-2 was sent CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.83 of 131 by CBI to the sanctioning authority and the sanction order Ex.PW- 12/A is carbon copy of the said draft sanction order.
25. The ratio of the landmark judgments that have settled the law on sanction is that the passing of sanction order is not an acrimonious job but is a solemn and a sacrosanct act which should be done only after due application of mind and after perusing the material placed before it by the sanctioning authority.
26. In the present case, Professor Hrushikesh Senapaty, Director, NCERT was examined by the prosecution to prove the sanction. He proved the sanction order given by him as Ex.PW12/A. He deposed that he had carefully examined the material placed before him and after application of mind on the CBI Report and all its enclosures, as mentioned in the sanction order, he accorded the sanction. Just because he could not remember the details of each and every document, that was received by the Secy., NCERT from CBI which were later placed before him and that he could not specifically tell the details of such documents, which otherwise is not expected to be remembered by him, does not go to show that the sanction which was accorded by him, two years prior of his deposition, is not a valid one. I also find no force in CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.84 of 131 the contention of the Ld. Defence Counsel that the draft sanction letter Ex.PW12/D-2 being verbatim to the sanction letter Ex.PW12/A shows non application of mind of the sanctioning authority. In the opinion of this court there is no illegality if a draft sanction order is given by CBI to the concerned competent authority since it is not that request for grant of sanction comes to such authority on a regular basis but may be once in a while and in order to accord or deny such sanction, a particular format in which the same has to be given or denied, may be required. The sanctioning authority is not required to weigh each and every evidence placed before it by the CBI and to ascertain its veracity. It has only to form a prima facie opinion from the material placed before it by the prosecuting agency whether the umbrella of protection otherwise available to the public servant is to be lifted or not. The judgment of CBI Vs. Ashok Kumar Aggarwal (supra) relied by Ld. Defence Counsel is not appliable here since the accused failed to established that he has suffered any disability or detriment in protections available to him. He failed to bring on record any document which as per him, was not put before the Sanctioning Authority, which if put before him, would have made him deny the sanction.
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In view of above, I do not find any illegality in the sanction order and it is held that the sanction order Ex.PW12/A is a valid one.
27. For the purpose of delving into the next limb of the arguments of Ld. Defence Counsel regarding non fulfilment of the essential ingredients of Section 7 and Sec 13(1)(d) of Prevention of Corruption Act, 1988, it is essential to see if the recorded conversations between the accused and the complainant are reliable and admissible. Authenticity of the Recorded Conversations and the Transcripts
28. The same needs to be taken up first since they shall be relied upon for the purpose of considering the demand and acceptance of the bribe by the accused. PW14/ Sh. Amish Kumar, Senior Scientific Officer, Grade-II (Physics)-cum-Assistants Chemical Examiner, CFSL, Lodhi Road, New Delhi was examined by the prosecution to prove the genuineness of the recorded conversation between the accused and the complainant. As per the witness, he received a request letter from SP, ACB/CBI, New Delhi dated 15.07.2016, Ex.PW14/A that contained three sealed parcels, specimen seal impression and copy of transcription. He deposed that before opening the seals on the parcels the same were tallied with the specimen seals and were found CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.86 of 131 intact. As per him exhibited marked Q-1 was found containing a micro- SD card of San Disc make of 4GB capacity which contained the questioned recorded conversations. On being shown, he identified the micro-SD card that was bearing his initials on its back side. Similarly, he identified the micro-SD cards Ex. Q-1 (containing questioned recorded conversation) and Ex. S-1 (containing specimen voice sample of accused/Sh. Hari Ram and complainant/Sh. Neeraj Sharma) and identified his initials on their back sides. Thus, the authenticity of the micro-SD cards that were analyzed by him stood proved.
29. Qua the analysis part, he deposed that the questioned recorded conversation contained in the SD card marked as Q-1 and Q-2 and the specimen voice contained in micro-SD card Ex. S-1 were transferred to an instrument called Speech Science Lab (SSL) for examination and the questioned voice of the suspected persons were aggregated from the recorded conversation and were compared with the respective specimen voice. As per his testimony, after comparing and identifying the questioned voice with the specimen voice, it was opined that the questioned voice and specimen voice are of the same person namely Sh. Hari Ram who is the accused herein. Similarly, he deposed about CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.87 of 131 the questioned voice and specimen voice of the complainant Sh. Neeraj Sharma. He specifically deposed that the micro-SD cards marked Q-1, Q-2 and S-1 were also examined for editing/tampering and that no such tampering was found. Despite detailed and in-depth Cross examination, he stood firm on the ground qua the report/opinion Ex.PW14/C filed by him. His testimony could not be shaken at all. Despite being asked questions to the extent of the accreditation of the SSL machine by National Accreditation Board of Testing Laboratories (NABL), the defence counsel could not extract anything in their favor regarding the tampering of the micro-SD cards or the processing of the data by the SSL. The witness categorically deposed that in the present case that machine was working in good condition when he examined. He deposed that while copying/transfer of data of the file, editing is technically possible with the help of any desktop/laptop but in the present case the micro-SD cards were received in examination and he did not find any editing/tampering in them. He also clarified that as per the standard guidelines, original DVR by which the recordings have been done on the micro-SD card are not required to be examined.
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30. PW7/Sh. Narender Kumar in his examination in chief had referred to the DVR and the memory card to be 'new', which was opened from packing in his presence. Though in his cross-examination, he deposed that DVR was not in a packed condition but subsequently, he deposed that he does not know whether it was a new DVR. The 'doubt' that came from the testimony of PW-7 was cleared from the testimony of PW16/Inspector Ramesh Kumar who categorically deposed that he had given requisition to the care-taker of the branch for arranging a new DVR and a new Sandisk 4 GB memory card and that the DVR was in a company packing which was opened by him in the presence of the independent witness.
31. It is not the case of the prosecution that the internal i.e. the built in memory of the DVR was used for the recording, as has been tried to be mixed up by the defence claiming manipulation in the recording. As per the cross-examination of PW16/Inspector Ramesh Kumar he used the external memory card since the said DVR had to be used again for further proceedings. The said DVR and the memory card were given to PW7/Sh. Narender Kumar, the independent witness, to be brought on the next date i.e. on 27.05.2016. thereby negating any manipulation CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.89 of 131 since the DVR Ex. PW-7/E never remained with the CBI till it was sealed after being used in trap proceedings the next day. There is no deposition of any witness that any data was retrieved from the DVR directly or if it was attached to any desktop/laptop etc. thereby ruling out any possibility of the recordings being tampered with by Inspector Ramesh Kumar or any other officer. Even otherwise, the Court sees no motive of the Inspector Ramesh Kumar to side with the complainant for such purpose.
32. Relevant witnesses in their respective testimonies have duly explained the procedure adopted for sealing the exhibits at the spot with the CBI seal and for sending them to CFSL for examination and that thereafter they were resealed with the CFSL seal. The letters of correspondences between the CBI and CFSL regarding sending and receiving of samples/exhibits/reports and collecting them by CBI officials also stood proved. Since, the seal at all these interceptions have been found to be intact during all the processes, non-deposition of the witnesses who took the exhibits to CFSL or collected those exhibits from there has no effect. The seal after use was given to PW8/Sh. Surender Gaur, to be brought at the time of trial. Though the CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.90 of 131 same was not produced during his testimony, but at the same time, the same was also not impressed upon by Ld. Defence Counsel at any stage except mentioning the same at the time of final arguments. No cross questioning of its non-production was conducted of PW-8. Non- production of the same by the witness, in no way, effects the case of the prosecution.
33. Minor discrepancies in the testimonies of PWs 7 and 8 regarding the time of sealing of DVR in the CBI office cannot be given undue weight-age since the same are bound to creep in with passage of time. Further no such suggestion was given or clarifications sought from the either the Trap Laying Officer or other member of the team. If the prosecution did not bring the CDR/Base Tower location for the rest of the month of the accused, the same could have been brought on record by him in his defense, if as per him the same was necessary for his defense. Non production of the same cannot be read in favor of the accused. As a matter of record, two applications, dated 01/08/2018 and 20.09.2018 both u/s 91 Cr.P,C were filed on behalf of the accused. In his application dated 01.08.2018, the accused sought CDR with Base Tower Locations and Cell Site data of mobile number of himself, the CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.91 of 131 complainant, both the independent witnesses and that of TLO Sh. Harnam Singh. The same was disposed of vide order dated 07.08.2018 declining the request with regard to mobile number of the complainant, the independent witnesses and that of the TLO. However, vide said order, the CDR, Base Tower Location and Cell Site data chart for the period 10.05.2016 to 10.06.2016 pertaining to mobile number of the accused was ordered to be called subject to furnishing the address of the said service provider.
34. The application dated 20.09.2018 was disposed of vide order dated 15.01.2019 with the direction to the service provider of mobile number 9414084158 and 9868287697 to provide their CDRs with Base Tower location and Cell Site data chart for the period 10.05.2016 to 10.06.2016. However, no further steps were taken by the accused to secure such information as was allowed by the Court. No witness in this aspect was examined in defence. The order declining the calling of CDRs with Base Tower location and Cell Site data chart for mobile numbers of the independent witnesses and that of the TLO, was never challenged.
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35. The contention of Ld. Defense Counsel that transcripts of lesser calls were prepared than the actual calls made between the accused and complainant for the purpose of deleting the relevant conversations just to somehow frame the accused in the present case, has no takers. Perusal of the CDR Ex. PW1/C reveals that there were calls as short as 1sec , 14sec etc. It is quite possible that the same didn't even got through or there was so much disturbance (as is also observed in the recorded ones at some places) that they were not worth considering. To say that in those ones only the defense of the accused was hidden would be too much to assume. The recorded calls are complete in themselves. Even there being some distortion at few places, the same is sufficient to draw the inferences as to the context of the conversation. The recordings were played not only during testimonies of the relevant witnesses but also during final arguments. It is not the case of the defense that the voices in the recorded conversation is not that of the accused or the complainant.
36. Ld. Defence Counsel instead levied general defence about the recordings having been incomplete, did not point out specifically as to in what manner, the contents of the conversation that has been reduced CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.93 of 131 to transcript, were modified. The conversation when played in the Court, was not disputed and respective voices were identified by the relevant witnesses. Even during final arguments, the same was heard by this Court and apparently, no break or over imposition of any conversation was observed.
37. The forensic voice examination report Ex.PW14/C regarding query no.2, specifically mentions in the final opinion as under:
"Waveform, spectrographic and critical auditory examination of the relevant audio recordings contained in microSD cards marked exhibits 'Q-1', 'Q-2' and 'S-1' reveal that the audio recordings are continuous and no form of tampering detected."
38. Regarding examination of the questioned voice and specimen voice of the accused and the complainant, the forensic voice examination report Ex.PW14/C uses the words, 'probable' and 'similar'. However, in his testimony PW-14 Sh. Amitosh Kumar deposed that the questioned voices and specimen voices that were examined by him were that of Sh. Hari Ram and Sh. Neeraj Sharma. No cross-examination of the witness regarding use of word 'probable' and 'similar' in the report Ex.PW14/C and being specific that of the CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.94 of 131 accused and the complainant, in his testimony by PW14 Sh. Amitosh Kumar was conducted. No clarifications on this aspect were sought by the Ld. Defence Counsel from the said witness.
39. In order to have transparency while preparing the transcripts of the recorded conversations between the accused and the complainant, Sh. Avnish Kumar, Vigilance Assistant, IOCL, Scope Complex, Lodhi Road, New Delhi was summoned as an independent witness by the I.O. He proved the transcriptions prepared memo as Ex.PW3/A and deposed that on 13.07.2016, the transcriptions of conversations in three CDs were prepared in his presence. He proved the transcriptions as Ex.PW3/B. Just because the I.O. had given him a transcript to compare to find out whether the same was tallying with the CD does not washes away the efficacy of his testimony. In fact, he was rather truthful in disclosing the same. It is not that the recording was never played before the witness. It is not I.O. could not have heard the recordings before. It may be possible that in order to save time, the transcript was prepared beforehand. The witness did not testify if he had no discretion to tell if the transcript so given to him did not match with what was being heard by him when the CDs were played. The fact that it took two- three CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.95 of 131 hours for him to hear the CDs and comparing them with the transcripts shows that the procedure was followed properly. The only purpose of having an independent witness for preparing the transcripts was to lend corroboration to it. Even otherwise, the said recordings were produced before the Court and upon hearing, no deviation was observed in the corresponding transcripts. Further, as per voice identification memo Ex.PW11/A, the accused identified his voice as well as the voice of the accused Sh. Hari Ram, when the CDs, copies of Ex.Q-1, Q-2 and S-1 were played before him in the presence of independent witness Sh. Mukesh Kumar Sharma.
40. The transcript of the conversation between the accused and the complainant has been proved as Ex.PW13/D, Ex.PW13/E, Ex.PW13/F, Ex.PW13/G and Ex.PW13/H, when the complainant on being examined as PW-13, identified his voice and that of accused Sh. Hari Ram while the corresponding recordings were played during his testimony. The same was not challenged by the Ld. Defence Counsel in his cross-examination. Even otherwise, it has never been the case of the defence that the voice contained in the recordings is not that of the accused Sh. Hari Ram.
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Thus the recorded conversations and their transcripts are held to be reliable and admissible.
41. Now, Section 7 in The Prevention of Corruption Act, 1988 (as amended in 2018) reads as under:
7. Offence relating to public servant being bribed. --Any public servant who, -- (a) obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or
(b) obtains or accepts or attempts to obtain, an undue advantage from any person as a reward for the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or another public servant; or
(c) performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
Explanation 1.--For the purpose of this section, the obtaining, accepting, or the attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by public servant, is not or has not been improper. Illustration.--A public servant, 'S' asks a person, 'P' to give him an amount of five thousand rupees to process his routine ration card application on time. 'S' is guilty of an offence under this section. Explanation 2.--For the purpose of this section,-- (i) the expressions "obtains" or "accepts" or "attempts to obtain" shall cover cases where a person being a public servant, obtains or "accepts" or attempts to obtain, any undue advantage for himself or for another person, by abusing his position as a public servant or by using his personal influence over another public servant; or by any other corrupt or illegal means;
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(ii) it shall be immaterial whether such person being a public servant obtains or accepts, or attempts to obtain the undue advantage directly or through a third party.
The essential ingredients of Section 7 of P.C. Act 1988 are :
(1) the accused must be a public servant or expecting to be a public servant ;
(2) he should accept or obtain or agree to accept or attempt to obtain from any person ;
(3) for himself or for any other person ;
(4) any gratification other than legal remuneration ; (5) as a motive or reward for doing or forbearing to do any official act or to show any favour or disfavour ;
42. Section 13(1)(d) of The Prevention of Corruption Act, 1988 reads as under:
13. Criminal misconduct by a public servant.-(1) A public servant is said to commit the offence of criminal misconduct,-
(d) if he,-
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.98 of 131 The essential ingredients of Section 13(1) (d) of P.C. Act, 1988 are:
(1) That he should have been a public servant (2) That he should have used corrupt or illegal means or otherwise abused his official position as such public servant, and (3) That he should have obtained a valuable thing or pecuniary advantage for himself or for any other person.
43. In the present case it has nowhere been denied that accused Sh.Hari Ram is a public servant being posted as Under Secretary, NCERT. No arguments qua this aspect were ever raised by Ld. Defence Counsel and thus, the first ingredient stands proved.
44. In 'B. Jayaraj Vs State of A.P (2014) 13 SCC 55' it has been held by the Hon'ble Apex Court that mere possession and recovery of currency notes from the accused without proof of demand would not bring home the offence U/s 7 of P.C. Act (as amended in 2018). It was further observed that presumption U/s 20 of the Act could not be drawn in respect of an offence U/s 7 of the Act. Such a presumption could have been drawn only if there was a proof of acceptance of illegal gratification for which proof of demand was a sine qua non.
45. Subsequently, in 'P. Satyanarayana Murthy Vs The District CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.99 of 131 Inspector of Police, State of A.P (2015) 10 SCC 152', the Hon'ble Apex Court by placing reliance on B. Jayaraj (supra) observed that mere possession and recovery of currency notes from the accused without proof of demand would not establish an offence u/s 7 of the P.C. Act. This is because proof of demand is a sine qua non or an indispensable essentiality and a mandate for an offence U/s 7 of the act. The proof of acceptance of illegal gratification could follow only if there was a proof of demand. The proof of demand of illegal gratification is therefore the gravemen of the offence under Sections 7 of the Act and in the absence thereof, the charge would thereby fail.
46. Thus, mere acceptance of any amount by way of illegal gratification or recovery thereof dehors the proof of demand, ipso-facto would not be sufficient to bring home the charges U/s 7 of P.C. Act.
46. Hon'ble Supreme Court of India clarifying the relevant provisions of law U/s 7 of P.C. Act in 'Neeraj Dutta Vs State (Government of GCT of Delhi) 2022 SCC Online SC 1724' held that:
"74. What emerges from the aforesaid discussion is summarised as under:
(a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi.Page No.100 of 131
public servant under Sections 7 and 13(1) (d)(i) and (ii) of the Act.
(b) In order to bring home the guilt of accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence. (c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence. (d) In order to prove the fact in issue namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:
(I) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.
(ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13(1)(d)(i) and (ii) of the Act.
(iii) In both cases of (I) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13(1)(d), (i) and (ii) respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence.
Similarly, a prior demand by the public servant when accepted by the bribe giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13(1)(d) and (I) and
(ii) of the Act. (e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.101 of 131
gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands. (f) In the event the complainant turns 'hostile', or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant. (g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13(1)(d) (i) and (ii) of the Act. (h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point (e) as the former is a mandatory presumption while the latter is a discretionary in nature." (emphasis supplied)
47. Further, paragraph 76 of the aforesaid judgment provided that :
"76. Accordingly, the question referred for consideration of this Constitution Bench is answered as under: In the absence of evidence of the complainant (direct/primary, oral/documentary evidence), it is permissible to draw an inferential deduction of culpability/guilt of a deduction of culpability/guilt of a public servant under Section 7 and Section (13)(1)(d) read with Section 13(2) of the Act based on other evidence adduced by the prosecution."
(emphasis supplied) Demand CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.102 of 131
48. There has to be a demand for gratification. It is not a simple demand for money, but it has to be a demand for gratification. Complainant/Sh. Neeraj Sharma, who was examined as PW-13, proved the complaint made by him to the CBI regarding demand of bribe by the accused Sh. Hari Ram as Ex.PW13/A. Accused Sh. Hari Ram also made a call to him on his mobile number. The respective mobile numbers of accused Sh. Hari Ram and complainant Sh. Neeraj Sharma have been proved in evidence by PW-2/Sh. Pawan Singh and PW-1/Sh. Saurabh Aggarwal, the concerned officials from the service providers. In his testimony PW13/Sh. Neeraj Sharma deposed about the demand of Rs.15,000/- immediately made by the accused and the balance of Rs.35,000/- after he receives the salary. The same was also corroborated by PW-7/Sh. Narender Kumar, an independent witness who stated that during conversation, on the 'clarification' of Sh. Neeraj Sharma, accused/Sh. Hari Ram told him to bring at least Rs.15,000/-. Verification memo dated 26.05.1016 was also proved him as Ex.PW7/A. Similarly, Insp. Ramesh Kumar, who was examined as PW-16, also deposed about a call made by the accused on the mobile and the accused informed him about the complaint received against CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.103 of 131 him(complainant) and demanded bribe of Rs.15000/- for its disposal and directed the complainant to bring Rs.15,000/- as a part payment of the bribe amount. Relevant portion of the transcripts of conversation between the accused and the complaint are reproduced hereunder:
CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.104 of 131 CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.105 of 131
49. Accused has put forward his case that he only demanded the money that was taken by the complainant from him for repairing of his AC and providing another second hand one, meaning thereby that the money that was being demanded by him from the complainant was his own that the complainant had to return to him and it was not a demand for any gratification.
50. To prove the same, the accused, got examined himself as DW-4 and deposed that the complainant/Neeraj Sharma, apart from his Office CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.106 of 131 work, was also doing private job of A.C. repairing. As per his deposition, he had asked the complainant to repair A.C. installed at his residence and to provide him one second hand A.C. as well, for which an estimate of Rs.17,200/- (Rs.2200/- was for the repair work and Rs.15,000/- for the second hand A.C.) was given by the complainant. He deposed that the complainant repaired his A.C. and an amount of Rs. 17,200/- was paid to the complainant regarding the repair and advance payment for second hand A.C. As per the accused, though A.C. was repaired but it developed some problems and consequently, on 22.05.2016, the complainant Neeraj Sharma sent two persons to his residence. He did not pay them the repairing charges stating that he had already paid it to the complainant, to which one Sh. Prithvi Singh with whom those two persons were working told the accused that he would come to see at his Office, the next day. As per the accused, the said Prithvi Singh came the next day and on being told again that the demand has been made to Sh. Neeraj Sharma, he threatened to lodge the complaint against him. The said complaint, as per him, was given to him only and he proved the same as Ex.PW4/C. CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.107 of 131
51. The defence put forward by the accused is not found to be a convincing one. At the outset it is observed that there is nothing on record to show that the complainant was doing work of AC repair in his personal capacity. Not even a single witness has been examined by the defence who proved that they got their A.C. repaired from the complainant in a personal capacity. Apart from giving a suggestion that amount of Rs.43,500/- which was deposited by the complainant in his account on 25.05.2016, as proved by document Ex.PW13/DX-1(colly) was received by him from different office colleagues against supply and repair of their ACs which was denied by the complainant, no positive evidence was brought on record. No such office colleagues were called to depose in this aspect. The complainant in his testimony as PW13 clarified that the said amount was part of the amount of Rs.50,000/- which he has borrowed from his colleague namely Sh. Ramesh Chand on interest of 2% per month.
52. DW-1/Sh. Jai Prakash Bhulania did depose that the accused was running a personal shop of AC at Dariya Ganj, Delhi but not even name of that shop was mentioned by him leave alone its address. If the accused himself was in the job of AC repairing, why would he ask CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.108 of 131 someone else to repair it. The complaint Ex. DW2/1 was never proved as per law. No receiving of the same by the office of Director, NCERT or its subsequent outcome has been called from the office of the Director, NCERT in defence evidence. It is also uncommon that some AC mechanic who is not even the owner of the workshop, writes to the Controlling authority of a public servant for non-receipt of a meager amount of Rs. 2200/-. No bill was attached with the complaint. There is nothing in evidence to suggest that subsequently, Sh. Prithvi Singh did receive his payment or not. Sh. Prithvi Raj Singh who was examined by the accused in his defense evidence as DW-2, deposed that he had received a telephonic call for A.C. repair from Sh. Hari Ram/accused, the fact which has been denied by the accused in his testimony. In his cross-examination, he admitted that as per the complaint Ex.DW2/1, he along with two employees went to repair the A.C. of the accused but he volunteered to say that he did not go at that time. As has come in his cross-examination, the proprietor of Singh Refrigeration where he was working, was Sh. Gulab Singh. If that was so, there was no purpose for Sh. Prithvi Raj Singh to go to that extent of asking for the repair charges that he would lodge a complaint of its CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.109 of 131 non-receipt. He did not depose that if he had no instructions from the said Sh. Gulab Singh, where he was working since it was the said Sh. Gulab Singh only who was at loss for non-receipt of repairing charges. Sh. Prithvi Raj Singh categorically deposed that he did not write Ex.DW2/1 at the instance of said Sh. Gulab Singh. He also never met Director, NCERT personally to whom he had addressed the complaint Ex.DW2/1.
53. Now, if the complaint Ex. DW-4/2 is perused carefully, it has been addressed to the accused himself mentioning all the defense taken by the accused in the present case. In the same, Sh. Prithvi Singh mentions that Rs. 17,200/- were given by the accused to the complainant in his presence, after getting the same withdrawn from his bank account, on 29/04/2016. However, in his cross examination, Sh. Prithvi Singh took a U Turn and deposed that accused did not make any payment to the complainant in his presence. He volunteered to say that he was only told by the accused that he had made payment to the complainant. He even went to the extent deposing that he cannot say whether the payment was actually made by the accused to the complainant. The document Ex. DW-4/2 is a combination of all CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.110 of 131 defenses of the accused mentioning all the relevant details and extending threat to him in the end. Interestingly nothing was done by him till 2 months when he allegedly wrote document. Ex. DW-2/1, allegedly to Director, NCERT. Lastly, the accused could himself have made complaint to his superior officers regarding alleged act of the compliant. Thus, the story of defence is nothing but a concocted one, after the present case was registered.
54. Also, the Court finds no reason as to why the complainant out of context will tell PW-7/Sh. Narender Kumar that he had been to the house of the accused, once or twice for shifting and repair of AC. The said statement was not given by PW-7 voluntarily during his testimony or in his statement u/s 161 Cr.P.C that Ld. Defense counsel was aware of it. By giving this suggestion it seems Ld. Defense Counsel was either aware as to what exactly was told to PW-7 by the complainant during their meeting in the CBI Office or PW-7 intended to create some dent in the case of the prosecution. PW-17/Insp. Harnam Singh denied any such conversation between the complainant and Sh. Narender Kumar.
CBI Vs. Hari Ram (Bhupinder Singh)
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55. It has been argued by the learned defence counsel that there existed no motive for the accused to ask for bribe from a person whose antecedents during work are also of such a nature that no one would dare get involved with him in any manner. It was also argued that there was no reasonable connection between the alleged act and the official duty. Though the accused could not have stopped the information sought by the brother of the complainant under RTI and that he was just to forward the information but the fact that there was no complaint but only an RTI application was not known to the complainant, who was kept under an impression that there is a complaint against him. The 'complaint' was never shown to him but promised to be given to him on payment of gratification. It should not be forgotten that complainant was just a junior foreman, whereas, accused was holding the post of Under Secretary. There was no purpose of exchange so many calls just for the reasons of allegedly demanding his money back from the complainant. Now, when the authenticity of the conversation between the accused and the complainant has been held to be valid, the transcript of the same is taken into consideration for the purpose of corroborating the version of the complainant. The said conversation CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.112 of 131 has also been heard in the open court during arguments. I am not inclined to believe the submissions made by the learned defence counsel that the conversation between the accused and the complainant was regarding only the payment of Rs. 15,000/- that the complainant owed towards the accused. In the transcript Ex. PW13/C the accused is asking the complainant as to the quantum of money that he was having and later on asked the complainant to be rest assured on his commitment. In his conversation Ex. PW13/E the complainant is specifically mentioning about a complaint and not an RTI application. The accused categorically stated to the complainant that he will not disclose the complaint to him and it all depends on the complainant. On being specifically questioned by the complainant that the complaint must have routed from upper channels, the accused stated that why it cannot come directly in the name of Under Secretary, thereby signifying the importance of his post. The accused during conversation tells the complainant that one RTI also has come and subsequently tells that is complaint only. Accused further tells that it is the complaint, just like a complaint and that 'complaint' is mentioned over it. The accused also tried to put pressure upon the complainant left it on his CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.113 of 131 discretion whether to sort it out and get it cleared or not. Accused did not specify the exact amount to be brought and was cautious. He asked the compliant to bring that much amount only which he had earlier quoted. The tone, tenor and the authority with which the accused is speaking is sufficient to infer that the same was not just a request call for asking his money back.
56. All these circumstances cumulatively point out to nothing but demand of bribe by the accused for disposal of a complaint (which was portrayed to be existing) against the complainant. Acceptance
57. In his testimony, the complainant/PW-13 Neeraj Sharma stated that he met the accused Sh. Hari Ram inside the room, while shadow witness waited outside. He deposed that on enquiry about the complaint against him, he was assured by the accused that same will get settled and the accused enquired form him as to whether he had brought the money by making a gesture. He deposed that he took out the money from his pocket which was accepted by the accused by his right hand and he kept the same in his right-side pant pocket. On being CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.114 of 131 signaled by dialing to the TLO, the rest of the team members came inside. The complainant deposed that he told the CBI officers that accused Sh. Hari Ram had demanded and accepted the bribe amount of Rs.15,000/- from him, in lieu of disposing of complaint against him favorably. He deposed that the said amount was collected by the accused by his right hand and was kept in his right-side pant pocket. The said amount of Rs.15,000/- was taken out by independent witness Sh. Surender Kumar from the right-side pant pocket of the accused Sh. Hari Ram. The same was tallied with the particulars mentioned in the Pre-trap memo dated 27.05.2016 and were found to be in order. His testimony was corroborated by the independent witnesses PW7/Sh, Narender Kumar and PW8/Sh. Surender Gaur. Their testimonies regarding recovery of the amount from the pocket of pant of accused also gets strengthened from the testimony of PW5/Ms. Kanta Kelkar, Dy. Secy. NCERT who deposed that the amount of Rs.15,000/- was recovered from the right-side pocket of the pant of the accused. Taking the amount from the complainant by the accused is otherwise also not disputed. A suggestion was given to the complainant by Ld. Defence Counsel that he was returning the amount which he had taken from the CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.115 of 131 accused which was denied by the complainant. The same was also admitted by the accused in his statement u/s 313 Cr..P.C. The only issue remains to be adjudicated here is that if the amount was accepted as a bribe amount or otherwise.
58. Since all the conversation regarding demand and acceptance between the accused and the complainant, took place inside a closed room, there was no opportunity for the independent witness to hear or witness the same, without getting the accused suspicious who was otherwise acting in utmost caution. The independent witness and the other members of the trap laying team immediately entered the room, the moment the complainant gave signal. The amount given to the complainant to be delivered to the accused on his asking, was found from the very place i.e. right-side pant pocket of the accused that was pointed out by the complainant. The same also got corroborated scientifically by the chemical analysis of the washes of the right hand and right-side pant pocket of the accused which was carried out on the spot and subsequently sent to CFSL for forensic examination.
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59. The relevant extract of the conversation that took place between the complainant and the accused inside the room is reproduced hereafter:
CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC Act)-06, Page No.117 of 131 CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.118 of 131
60. The accused is evidently aware about the dispute between complainant and his brother. He is trying to make the accused concerned by stating that he feels that brother of the accused has got some (incriminating) papers. Accused is also heard warning the complainant regarding some 'purchase' coming on record and that it will be difficult to remove it from there. The complainant while giving the accused Rs. 15,000/- tells him that he shall give the balance on receipt of the salary. The complainant reciprocates it by saying, let it be meaning thereby that apart from 15,000/- he was expecting more. When the complainant stated that he will make the complete payment of Rs. 35,000/- anyhow, the accused did not respond and offered him CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.119 of 131 water. There is no discussion regarding any AC repair or procuring any AC. Entire conversation revolves around a complaint and payment of Rs. 15,000/- and promise to pay the remaining. Such kind of acts can be proved only by drawing necessary inferences from the other acts/circumstances since direct evidences in such cases are rarely available as the accused in such cases exercises much caution and do not make direct demand.
Thus, from the other proven facts and the conversation that took place in the room it stands proved beyond reasonable doubt that the demand as well as acceptance of money was done as gratification for doing an unlawful act by the accused.
61. Section 20 of P.C. Act, 1988 provides as under :
"20. Presumption where public servant accepts any undue advantage -Where, in any trial of an offence punishable under section 7 or under section 11 it is proved that a public servant accused of an offence has accepted or obtained or attempted to obtain for himself, or for any other person, any undue advantage from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or attempted CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.120 of 131
to obtain that undue advantage, as a motive or reward under Section 7 for performing or to cause performance of a public duty improperly or dishonestly either by himself or by another public servant or, as the case may be, any undue advantage without consideration or for a consideration which he knows to be inadequate under Section 11."
62. Thus, Section 20 of the Act deals with presumption where public servant accepts gratification other than legal remuneration. It uses the expression 'shall be presumed' in sub-section (1) and sub-section (2) unless the contrary is proved. The said provision deals with a legal presumption which is in the nature of a command that it has to be presumed that the accused accepted gratification as a motive or reward for doing or for bearing to do any official act, if the condition envisaged in the former part of the section is satisfied. The only condition for drawing a legal presumption U/s 20 of the Act is that during trial, it should be proved that the accused had accepted or agreed to accept any gratification.
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63. In 'State of Madras Vs A. Vaidyanatha Iyer AIR 1958 SC 61' it was observed that presumption U/s 20 of the Act would arise where illegal gratification has been accepted. The legislature has used the words 'shall presume' and not 'may presume' which means the presumption has to be raised as it is a presumption of law and therefore it is obligatory on the court to raise it. In the present case as well having proved that the accused had demanded as well as accepted illegal gratification from complainant which was subsequently recovered from the right-side pocket of his pant, a presumption U/s 20 of P.C. Act, 1988 can be raised that the said illegal gratification was received by the accused Sh. Hari Ram for dishonestly performing his public duty in favor of complainant Sh. Neeraj Sharma. Accused has not been able to rebut the presumption to the satisfaction of the court either by cross examination of the witnesses or by leading his evidence. Thus, it is presumed that that accused Sh. Hari Ram obtained the gratification as a motive or reward such as mentioned in Sec 7 of the P.C Act.
64. Now other limbs of arguments advanced by Ld. Defence Counsel is adverted to. As regarding submissions of Ld. Defence CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.122 of 131 Counsel that CBI manual was not followed, it has not been shown as to which provision of the same has been violated by the investigating agency and its effect. The investigation has been done as per established procedure. Contentions regarding verification proceedings allegedly preceding the complaint has already been discussed. Pre- Trap memo Ex. PW-7/G has duly been proved by all the concerned witnesses. PW-8/Sh. Surender Gaur has deposed about all the members of the Trap party mutually searching each other for any incriminating material, before starting for the NCERT office. There was no further occasion or motive for either of the team members to get any incriminating material with them. In fact there was no incriminating material pointed out by the defence as such. Ld. Defence counsel has not been able to show that the search had to be conducted further as well and if so, what prejudice has been caused to the accused or if by not doing it the entire investigation stands vitiated. Even otherwise, the purpose of preparing such manuals is to lay down a standardized rules and procedures regarding the manner in which the investigation is to be conducted so as to ensure uniformity and reliability in the proceedings. These manuals are not directory in nature, though being CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.123 of 131 expected to be followed. It is not that any deviation or noncompliance of the same would wash away the entire proceedings. The same may at best be an irregularity and not illegality by any means. The erring officers at best may be liable for disciplinary action, if deliberate noncompliance of the manual is proved but in way it can affect the case, if otherwise it is proved.
65. Lastly, regarding past conduct of the accused, he being termed as a person of dubious character by the defense, in a criminal trial where the only issue for determination is whether the accused has committed the offence for which he has been put to trial. The character or past conduct of a witness in immaterial if the testimony given by him is trustworthy, independently or by corroboration. In the present case, the defence sought to bring on record the matrimonial disputes between the complainant and his wife, previous conviction record of the complainant and his various departmental complaints. At the outset, it is observed that the complaints against the complainant Mark PW13/D-1 and Mark PW13/D-2 have not been proved as per law of evidence. Only photocopies of the same were put to the witness, who CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.124 of 131 denied having any knowledge of them. Moreover, no official person dealing with the said complaint was examined by the defence. Even otherwise, the same should not be taken into consideration just to brand the complainant untrustworthy for all times to come. In fact in the judgment dated 26.05.2018 of Ld. ASJ, (Central) Tis Hazari, in case FIR No.202/2013, P.S. Darya Ganj wherein the complainant was convicted for the offence punishable under Section 325 IPC, Ld. ASJ observed that the complainant therein was aggressive on slightest issue and had to be controlled during the proceedings of the case whereas the accused (Complainant herein) kept his cool throughout. Despite observing this conduct, the complainant herein was convicted in that case. It goes to show that it is not the previous or subsequent conduct that matters in a criminal trial but the issue in hand which is to be adjudicated. The Court has to see if in the case in hand, the testimony of the witness being examined, is trustworthy or not. The same cannot be discarded just because the witness is allegedly having a dubious past, as per the other side. It cannot be that just because the transfer order dated 24/05/2016 of the complainant was issued by the accused that he will take such a step. The complainant must be got aware if not CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.125 of 131 aware earlier that the accused was mere a signatory of the transfer order and the same was issued in pursuance of the directions issued by the higher ups. If the complainant was having any grievance then the same cannot be directed only towards the accused but should have been the person who had ordered the transfer order to be issued.
66. The inconsistencies which have been termed as materials ones by the Ld. Defence Counsel cannot be even termed as inconsistencies. If a witness 'does not know', 'do not recollect', 'I cannot say' or' do not remember', the same cannot be read against the prosecution , that too when other evidences are there to clarify it. It is possible that either the witness really does not recall/remember or has been won over by the other side to create some loopholes while supporting the case overall. The same is with the case of deposition of witnesses regarding 'time' of occurrence of events on that day i.e who came to the spot and at what time, what was being done by the persons at the spot, procedure of sealing/seizure etc. It is humanly impossible to recall with exact precision the list of events that happened on a particular day, that too when a considerable time has elapsed. In fact, if one deposes with such CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.126 of 131 precision, he may be accused of having been tutored.
67. In 'Rammi @ Rameshwar Vs State of Madhya Pradesh'1999 AIR SCW 3546 it was held that, "When eye-witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny."
68. The judgments cited on behalf of accused do not help the case of accused in any manner as they are distinguishable on facts. Though Ld. Defence Counsel submitted the judgments cited above, however, he has pressed upon the following ones only.
69. Since demand and acceptance have been proved against the accused Sh. Hari Ram, the judgments titled Dashrath Singh Chauhan Vs. CBI (supra), B.Jayaraj Vs. State of Andhra Pradesh (supra), P. Satyanaryana Murthy Vs. District Inspector of Police, State of Andhra Pardesh and Anr.(supra) are not applicable in the present CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.127 of 131 case. Further, the accused could not rebut the presumption under Sec.20 of the PC Act, 1988 and the witnesses examined on his behalf were not found reliable and as such, the judgment of C.M. Girish Babu Vs. CBI, Kochin (supra) is of no help to him. The testimony of the complainant has been fully corroborated by the independent witnesses and the CBI officials and as such, the judgment of State of Kerala and Anr. Vs. C.P. Rao (supra) is not applicable here. No personal interest of the complainant, except that he was aggrieved by his transfer order has been cited by the defence. The complainant, being in service for a much longer period, must be aware or be aware later on, that the accused was merely a signatory to his transfer order and the same was initiated by higher authorities, acting under a note put before it. If the complainant was aggrieved, then he should have taken such records against all other officers as well. The Court does not find the said defence to be justifiable for terming the complainant as an interested witness. As such, the judgment of V. Sejappa Vs. State by Police Inspector (supra) is not applicable here. As discussed above, no tampering was found in the recorded conversations, as such the judgment of Nilesh Dinkar Paradkar Vs. State of Maharashtra CBI Vs. Hari Ram (Bhupinder Singh) CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi. Page No.128 of 131 (supra) is not applicable here. Similarly, the judgments of State of Maharashtra Vs. Mallinath Rajaram Harsure (supra) and Sulen Singh and Anr. Vs. State of Jharkhand through CBI (supra) are not applicable being factually different. Lastly, judgment of Joginder Singh Malik Vs. CBI (supra) is also not applicable to the facts in hand since the present case is not regarding transfer of data from DVR to normal cassettes using any mini cassette recorder. In the present case, the recoding was done directly on the memory cards which were inserted in DVR and the memory cards were directly sent for forensic examination.
70. The accused has been charged for both, Sec 7 and Sec 13(1)(d) of the PC. Act, 1988. It is to be seen that if on same set of facts, he can be held liable for both or not. The words used in Section 7 of PC Act, 1988 are "Accepts" or "Obtains" or "Agrees to accept" or "Attempts to obtain" and thus, from the words "Agrees to accept" or "Attempts to obtain", it can be inferred that for proving offence under Section 7 of PC Act, 1988, demand has to be there, acceptance may or may not be there. On the contrary, Section 13 (1) (d) of the PC Act, 1988 used the words "Obtain" which signifies acceptance of the bribe amount.
CBI Vs. Hari Ram (Bhupinder Singh)
CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi.
Page No.129 of 131
Section 13(1) (d) of the PC Act, 1988 envisages criminal misconduct as the act of the public servant extending illegal pecuniary advantage to any person, including himself, by abusing his official position or taking any personal advantage out of irregularities, committed by him or by violating the prescribed rules and proceedings and granting illegal favor to anyone, including himself, although his personal enrichment is not a necessary ingredient of this Section.
71. In State vs. A. Parthiban, (2006) 11 Scc 473, Hon'ble Supreme Court of India while relying upon the Section 71 of the IPC and Section 220 of the Cr.P.C., held that a single act of accepting illegal gratification can fall under two distinct offences of Section 7 and 13 (1) (d) of the PC Act, 1988 with the rider that the offender should not be punished with a more severe punishment than the Court could award to the person for any of the offences. Thus, offences under Section 7 and 13 (1) (d) of the PC Act, 1988 can be proved on the same series of facts constituting the transaction of bribe amount and one can be convicted for these two offences on the same set of facts.
CBI Vs. Hari Ram (Bhupinder Singh)
CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi.
Page No.130 of 131
Conclusion:
72. In view of the aforesaid observations, discussions and the cited case laws it is observed that incriminating facts and circumstances are incompatible with the innocence of the accused. He being a public servant is not disputed, exchange of calls between the accused and the complainant on the day of verification and trap are not only proved but are not disputed as well, the conversations recorded have been proved to be authentic, voice contained therein have been duly identified, transcripts have been proved to be true version of the conversation, demand and acceptance of gratification by the accused stands proved. Recovery of the gratification amount has been proved to have been affected from the person of the accused. Further that the burden of presumption u/s 20 of the P.C Act, 1988 has not been discharged by the accused.
73. As such, the ingredients of offences under Section 7 and 13(2) r/w Section 13(1) (d) of the PC Act, 1988 against the accused are satisfied. The prosecution has been successfully able to prove its case against the accused on the basis of the testimonies of PWs and documents proved through them.
CBI Vs. Hari Ram (Bhupinder Singh)
CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi.
Page No.131 of 131
74. The accused is thus held guilty for the offence punishable under Section 7 and Section 13(2) r/w Section 13(1) (d) of the PC Act, 1988 and is, accordingly convicted.
Announced today the 29th day of January, 2024.
(Bhupinder Singh)
Spl. Judge(PC Act) (CBI)-06
RADC/New Delhi/29.01.2024
CBI Vs. Hari Ram (Bhupinder Singh)
CC No.271/2019 Spl. Judge, CBI (PC ACT)- 06, RADC, Delhi.