Delhi District Court
Cbi vs Surender Pandey on 6 August, 2012
IN THE COURT OF SHRI P.S. TEJI : DISTRICT JUDGE &
ADDL. SESSIONS JUDGE, I/C (EAST) cum SPECIAL JUDGE
(CBI), KARKARDOOMA COURTS, DELHI.
AC No.12/2008
Unique Case ID No.02402R0360692008
FIR No.RCDAI2007A00041
U/s 7 and 13(2) r/w Sec.13(1)(d) of PC Act, 1988.
CBI Versus Surender Pandey
S/o Sh. Rajmal Pandey
R/o 10D, Police Colony,
Model TownII, PCR Lane,Delhi.
Vill. & Post: Mahipalwa,
Darauli Chhapra, Bihar.
Date of Institution : 09.05.2008
Date of judgment reserved : 27.07.2012
Date of judgment : 06.08.2012
JUDGMENT
Accused Surender Pandey (on bail) has been sent to face trial by the Anti Corruption Branch of the CBI, for the offences punishable under Section 7 and 13(2) read with Section 13(1)(d) of PC Act, 1988.
AC No.12/2008 CBI Vs. Surender Pandey Page 1 of 35 2 At the time of commission of the offence, accused was posted as Assistant SubInspector in P.S. Welcome, North East District, Delhi.
3 Briefly stating, the facts of the present case are that the FIR, Ex.PW6/D1 of the present case was registered against the accused on the basis of a written complaint dated 4.10.2007, Ex.PW6/C made by Abid Khan (PW6) (hereinafter shall be referred as complainant) to the CBI. In the complaint Ex.PW6/C, it was alleged that Mumtaz, daughter of Hashmat Ali, had been missing since 27.09.2007. Mumtaz was sisterinlaw(Sali) of his brother Munna. On 28.09.2007, case of kidnapping of Mumtaz was got registered by Hashmat Ali in PS Welcome and he also got lodged missing report in this regard. IO of the said case was accused Surender Pandey, ASI. Sh. Hashmat Ali was not able to pursue the matter due to old age and had requested the complainant to look after the same and to get his daughter recovered. On 3.10.2007, he met accused Surender Pandey and requested him to get the the girl recovered but he demanded the bribe of Rs. 3,000/. Accused also told the complainant that he would investigate the matter properly only on payment of bribe. Thereafter, accused called the complainant AC No.12/2008 CBI Vs. Surender Pandey Page 2 of 35 again and again on telephone and also asked to pay the bribe. Since the complainant was not willing to pay the bribe, he made the complaint to CBI.
4 The complaint Ex.PW6/C was entrusted to Inspector Shyam Prakash (PW9) for verification and to lay a trap. In order to verify the genuineness of the complaint, a digital recorder was arrange and two independent witnesses, namely, Dinesh Kumar(PW8) and Gyan Prakash (PW7) were arranged. Complainant was asked to contact accused on his mobile number. Complainant called from his mobile number 9212683828 to the mobile phone number 9868442011 of accused. The said conversation was recorded in digital recorded and played. The conversation confirmed that accused demanded bribe from the complainant and agreed to accept Rs. 2500/ on the same day at about 6.00 p.m. The said conversation was transferred to a cassette Ex.P17 and its cloth wrapper Ex.P18. Its transcription Ex.PW7/G was prepared. A verification memo Ex.PW6/A1 was prepared in this regard.
5 A trap was laid by Inspector Shyam Prakash(PW9) constituting himself, Inspector Alok Kumar, SI R.K. Shivanna, independent witnesses and complainant. The complainant was AC No.12/2008 CBI Vs. Surender Pandey Page 3 of 35 introduced to trap party members and the allegations against accused were informed to all. The complainant produced a sum of Rs.2500/ consisting 3 GC notes of Rs.500/ denomination each and 1 GC note of Rs.1000/ denomination, numbers of which were recorded in Handing Over memo Ex.PW6/B. The GC notes were treated with phenolphthalein powder. Practical demonstration of reaction between phenolphthalein powder and sodium carbonate was given by Inspector Alok Kumar. A compact cassette recorder and a few blank cassettes were also arranged. The complainant(PW6) was personally searched to ensure that he was not having any incriminating material. The tainted GC notes were kept in left side shirt pocket of complainant with the directions to hand over it to accused on his specific demand and to some other person on his specific directions. The complainant was allowed to keep his mobile phone No. 9212683828 with him. Formal voices of both the independent witnesses were recorded in digital recorder after ensuring that it did not contain any pre recorded voice. Independent witness Gyan Prakash (PW7) was directed to act as a shadow witness and to remain close to complainant, try to hear the conversation and see the transaction. Other witness Dinesh Kumar (PW8) was asked to remain AC No.12/2008 CBI Vs. Surender Pandey Page 4 of 35 with other trap party members. Gyan Prakash(PW7) as well as the complainant(PW6) were directed to give signal by scratching their head with both their hands after completion of transaction. 6 Thereafter, trap party along with independent witnesses and complainant proceeded towards PS Welcome. On reaching nearby police post, complainant was asked to contact accused at about 6.25 p.m. The complainant did so and the said conversation was recorded. Digital recorder was played and on hearing the conversation, it revealed that accused asked the complainant to come at Police Post Janta Colony, PS Welcome within 510 minutes. Digital recorder was handed over to the complainant with the directions to switch it on meeting the accused. Both the complainant as well as shadow witness(PW7) proceeded towards Police Post Janta Colony, whereas other trap party members followed them in discrete manner. After 1520 minutes, accused was seen arriving at Police Post. Complainant and shadow witness wished accused and thereafter they went inside along with accused. After about 15 minutes, complainant(PW6) and shadow witness(PW7) came outside Police Post and gave preappointed signal. On receipt of same, CBI team rushed towards Police Post and accused was AC No.12/2008 CBI Vs. Surender Pandey Page 5 of 35 challenged whether he demanded and accepted the bribe from the complainant, which he admitted. The tainted bribe amount was seen having held by accused in his left hand. Accused stated that he took out tainted money from back side pant pocket to count the same. On being asked, shadow witness(PW7) informed that inside the Police Post, accused talked with complainant for about 15 minutes, then complainant took out tainted bribe money and handed it over to accused who accepted it with his right hand and kept it in his back side right pant pocket.
7 Independent witnesses Dinesh Kumar(PW8) recovered the tainted money of Rs.2500/ Ex.P7 to Ex.P10 from the left hand of the accused. The number of recovered GC notes tallied with the numbers mentioned in handing over memo Ex.PW6/B and found tallied. Thereafter, washes of right hand and left hand of accused were taken in a solution of sodium carbonate and their colour changed into pink. Pant of accused was got removed and its back side right pocket was dipped in colourless solution which turned into pink colour. The washes were transferred in glass bottles marked RHW Ex.P1(right hand wash), LHW Ex.P2(left hand wash) and PPW(pant pocket wash) Ex.P3 and their cloth wrappers are Ex.P12 AC No.12/2008 CBI Vs. Surender Pandey Page 6 of 35 to Ex.P14. Pant Ex.P11 of accused was seized.
8 The digital recorder was taken back from the complainant and played. The conversation recorded therein confirmed the demand and acceptance of bribe by accused. The said conversation was transferred to a cassette Ex.P15 and its cloth wrapper is Ex.P16. The transcription of the conversation recorded at the spot is Ex.PW7/H. A rough site plan Ex.PW7/C was prepared. Further proceedings were conducted in the room of Addl SHO, PS Welcome. Accused was arrested vide personal search cum arrest memo Ex.PW7/B. The office almirah of accused was searched vide Almirah search memo Ex.PW7/D and from the same, police FIR No. 692/07 Ex.PW9/A was taken. The proceedings conducted at the spot were recorded in recovery memo Ex.PW7/A. 9 On 5.10.2007, accused voluntarily gave his specimen voice in the presence of independent witnesses and specimen voice recording memo Ex.PW7/E was prepared. It was transferred to an audio cassette Ex.P19 and its cloth wrapper is Ex.P20. 10 During investigation, the washes as well as cassettes containing conversations and specimen voice were sent to CFSL for obtaining expert's opinion vide covering letters Ex.PW9/B and AC No.12/2008 CBI Vs. Surender Pandey Page 7 of 35 Ex.PW9/C. Voices contained in cassettes were examined in CFSL by Sh. Deepak Kumar Tanwar (PW2) vide report Ex.PW2/1, whereas washes in CFSL were examined by Sh. V.B. Ramteke (PW1) vide report Ex.PW1/1. During investigation, call details of mobile phone Nos.9212683828 and 9868442011 were obtained. Sh. M.N. Vijayan (PW3) Nodal Officer of Tata Tele Services Ltd. proved letter Ex.PW3/A and its annexures with regard to telephone No. 9212683828. Sh. R.S.Yadav(PW5) from MTNL proved letter Ex.PW5/A vide which the call details Ex.PW5/B of mobile Phone No. 9868442011 were sent to CBI. Further investigation of the case was conducted by Inspector G.K.Pradhan(PW10) after obtaining permission from the court vide order Ex.PW10/A. He prepared transcriptions Ex.PW7/G and Ex.PW7/H vide transcription memo Ex.PW7/F. Sanction Ex.PW4/A for prosecution of accused was granted by Sh. Jaspal Singh(PW4) the then DCP(North East). 11 After completion of the investigation, the challan was put up in the court where the accused was supplied with the copies of the chargesheet and the documents of the CBI.
12 The charges under Section Section 7 and 13(2) read with 13(1)(d) of P.C. Act were framed against accused on 28.11.2008 AC No.12/2008 CBI Vs. Surender Pandey Page 8 of 35 which reads as under :
"That, on 4.10.2007, you Surender Pandey being a public servant while working as ASI, Police Station, Welcome, North East District, Delhi, demanded and accepted Rs.2500/ as illegal gratification from Abid Khan for investigating the case relating to kidnapping of Ms. Mumtaj @ Choti, daughter of Hashmat Ali, relative of the complainant and thereby you committed an offence punishable under Section 7 of P.C.Act, 1988 and within the cognizance of this Court.
Secondly, you while working as such, in the said capacity on 4.10.2007 at the said place and time by corrupt or illegal means or by otherwise abusing your position as public servant obtained the pecuniary advantage to the tune of Rs. 2500/ and thereby you committed an offence punishable under section 13(1)(d) and punishable under Section 13(2) of the P.C. Act, 1988 and within my cognizance."
13 Accused pleaded not guilty to the charges framed against him and claimed trial.
14 The prosecution has examined 10 witnesses in support of its case. Out of those witnesses, PW6 Abid Khan is the complainant. PW2 Sh. Deepak Kumar Tanwar examined voices whereas PW1 Sh. V.B. Ramteke examined washes in CFSL. PW3 Sh. M.N. Vijayan proved the call details of mobile phone no.9212683828 AC No.12/2008 CBI Vs. Surender Pandey Page 9 of 35 whereas PW5 Sh. R.S. Yadav proved the call details of mobile phone no.9868442011. PW4 Sh. Jaspal Singh accorded sanction for prosecution of accused. PW7 Gyan Prakash and PW8 Dinesh Kumar are the independent public witnesses. PW9 Inspector Shyam Prakash and PW10 Inspector G.K. Pradhan are the investigating officers. 15 Statement of accused has been recorded under Section 313 Cr.PC. The accused has denied the present case against him. He has stated that he is innocent and has been falsely implicated in the present case. He further stated that complainant (PW6) is the BC of Police Station Welcome and to take revenge, he has falsely implicated him. Accused opted to lead evidence in his defence. 16 Accused examined six witnesses viz. Inspector Pardeep Kumar (DW1), HC Virender Kumar (DW2), HC Rajpal (DW3), Asmat Ali (DW4), Islam (DW5) and Ikrar Hassan Idrishi (DW6).
17 I have heard Shri S. Krishna Kumar, learned PP for CBI and Sh. R.S. Goswami, Ld. Counsel for accused. I have also carefully gone through their submissions and the material available on record.
18 It has been argued by Ld. PP for CBI that from the AC No.12/2008 CBI Vs. Surender Pandey Page 10 of 35 complaint as well as testimony of witnesses, it has been duly proved that accused demanded and accepted bribe from the complainant. He has further argued that a trap was laid and during trap, accused was caught red handed at the spot while demanding and accepting bribe money. Public witnesses have also supported the case of prosecution and their testimony are sufficient to bring home the guilt of accused. He has further argued that the reports of wash and voice Expert also go to prove the case of the prosecution.
19 On the other hand, Ld. defence counsel has argued that the initial demand of bribe as well as demand at the spot has not been proved by the prosecution. He has vehemently argued that the complainant has not supported the case of prosecution. He has not stated that he made any complaint to the CBI or that any demand or acceptance of bribe money was made by accused from him. Even the recovery of bribe money has not been proved from the testimony of alleged independent witnesses.
Sanction 20 To prove the sanction accorded for prosecution of the accused, CBI has examined PW4 Sh. Jaspal Singh,the then DCP North East District, Delhi. He deposed that being DCP, he was AC No.12/2008 CBI Vs. Surender Pandey Page 11 of 35 disciplinary authority of ASI Surender Pandey and was competent to remove him from services. He further deposed that he had perused the material placed before him by CBI in the form of documentary evidence such as handing over memo, recovery memo, statements of witnesses and other documents. Being satisfied, he accorded sanction vide order dated 24.04.2008 Ex.PW4/A. 21 During cross examination, he stated that an application was moved for according sanction. He denied that no such application was moved and that he accorded sanction in routine manner. He stated that sanction was typed on his dictation and it was complete from all aspects at the time of signing. 22 Perusal of sanction order Ex.PW4/A shows that witness PW4 had examined complaint, FIR, memos, statements of witnesses and other documents collected during investigation and therefore accorded sanction for prosecution of accused. It has not been disputed that PW4 was a disciplinary authority of accused and was competent to remove him. No defect in the sanction order has been shown. Therefore, in my considered opinion, PW4 Sh. Jaspal Singh was competent to accord sanction for prosecution of accused and sanction order does not suffer from illegality and is valid one. AC No.12/2008 CBI Vs. Surender Pandey Page 12 of 35 Demand of bribe at initial stage 23 The case of the prosecution is that on 4.10.2007 when complainant approached the accused with regard to missing of Mumtaz, accused demanded bribe of Rs. 3,000/ from him for locating the missing girl. It is also case of prosecution that before laying trap, a conversation between complainant and accused had taken place in CBI office which also confirmed the demand of bribe by accused.
24 On the other hand, ld. Defence counsel has submitted that the complainant has not supported the case of prosecution and has denied that he ever made complaint to CBI against accused or that accused ever demanded any bribe from him.
25 To prove the demand of bribe by accused before laying trap, prosecution has examined the complainant (PW1). The complainant deposed that Hashmat Ali was living in his colony and was known to him. On 10.03.2007, Hashmat Ali requested him to go to CBI office for some work. Daughter of Hashmat Ali left her house without any information and for this reason, he tried to lodge a report with PS Welcome. It was told to them that complaint of Hashmat Ali was handled by accused. On 29.09.2007, FIR regarding missing of AC No.12/2008 CBI Vs. Surender Pandey Page 13 of 35 Mumtaz was registered and prior to that a case was registered against the complainant under section 354 IPC. Accused demanded money from Hashmat Ali. Hashmat Ali and 23 other persons had a talk with accused from the mobile phone of complainant. On 3.10.2007, they went to CBI office and met SP of CBI Mr. Bhupender Singh who introduced them to Inspector Shyam Prakash. Inspector Shyam Prakash asked Hashmat Ali to make a call to accused. Complainant further deposed that accused demanded Rs. 3,000/ at first instance and later on matter was decided at Rs. 2500/.
26 During cross examination by defence counsel, complainant stated that he was taken to CBI Office by Hashmit Ali on 4.10.2007. He categorically stated that he did not make any complaint to the Inspector, CBI, Anti Corruption Department and did not know who wrote complaint Ex.PW6/C, however, it bears his signatures. He clarified that complaint Ex.PW6/C was written by one CBI Officer but its contents were not narrated to him before his signatures. He stated that he signed the complaint at the instance of CBI officer and that he never made any complaint against accused. He further stated that he knew accused since long as he used to visit PS Welcome as he used to reside in Welcome Colony. He further AC No.12/2008 CBI Vs. Surender Pandey Page 14 of 35 stated that he was having mobile phone number of accused and accused was also having his mobile phone number. They used to talk with each other prior to missing of daughter of Hashmat Ali and subsequent thereto. He denied having stated to police(CBI) that accused demanded Rs. 3,000/ at first instance and later on matter was decided for Rs. 2500/. He also denied having stated that the amount was being asked for taking necessary action in kidnapping case. He denied having stated to police that he was asked to contact accused and that conversation took place. He categorically stated that he had not signed even a single paper on 4.10.2007, rather all the papers bearing his signatures were got done on 5.10.2007 in CBI office. With regard to transcription Ex.PW7/G and Ex.PW7/H, complainant stated that he signed the same at the instance of CBI officials. He further stated that he heard the voice only at the time when cassette Ex.P17 was played and he could not identify the voice of other person. He further stated that he signed all the exhibits at the instance of CBI and the documents were not read over and explained to him. He further stated that Mumtaz was not in his relation nor he had any relation with her father Hashmat Ali.
27 It is the case of prosecution that complaint Ex.PW6/C AC No.12/2008 CBI Vs. Surender Pandey Page 15 of 35 was made voluntarily by the complainant against accused that he was demanding bribe for taking action in the kidnapping case of Mumtaz. In the complaint Ex.PW6/C, it is mentioned that kidnapped girl Mumtaz and her father Hashmat Ali were in relation to the complainant. But the complainant has demolished the case of prosecution by saying that Mumtaz and Hashmat Ali were not related to him. With regard to making of complaint Ex.PW6/C, complainant has stated that he did not make any complaint against accused. He also stated that he did not know who wrote complaint Ex.PW6/C and on the other hand, he stated that it was written by CBI officer but its contents were not narrated to him. Though he admitted his signatures on the complaint but he clarified that he signed the same at the instance of CBI officials. He further clarified that he signed all the documents on 5.10.2007 and not on 4.10.2007, the date on which the alleged complaint was lodged against the accused. He also stated that the documents which he signed were not read over and explained to him.
28 As per case of prosecution, prior to laying of trap, accused demanded bribe from the complainant on 3.10.2007, as mentioned in complaint Ex.PW6/C. But the complainant has stated AC No.12/2008 CBI Vs. Surender Pandey Page 16 of 35 that he had not made any complaint against accused. He has even denied his relationship with Mumtaz or her father Hashmat Ali. In view of this position of the matter, the prosecution has failed to establish the making of complaint Ex.PW6/C by the complainant against accused that he had demanded bribe from the complainant for taking action in the kidnapping case of Mumtaz. Apparently, complaint Ex.PW6/C was the basis for registering FIR of the present case against accused, genuineness of which is at stake as the complainant has not supported the case of prosecution that he made any complaint against accused or that Mumtaz or her father Hashmat Ali were in relation with him.
29 It is also case of the prosecution that on 4.10.2007 after making complaint, a talk between the complainant and accused was arranged in CBI office which also confirmed the demand of bribe by accused. As per prosecution said talks were recorded in Ex.P17 and its transcription Ex.PW7/G was prepared. The complainant has also not supported the case of prosecution on this aspect. He stated that he heard his voice only at the time when cassette Ex.P17 was played. But he could not identify the voice of other person. With regard to transcription Ex.PW7/G, complainant stated that he signed AC No.12/2008 CBI Vs. Surender Pandey Page 17 of 35 the same at the instance of CBI officials. He further stated that he did not go through the voice and same was not played in his presence. 30 The independent witness Gyan Prakash (PW7) has also not supported the case of prosecution. First of all, during his examination in chief, the conversation in cassette Ex.P17 was not played in his presence in the Court to get the voices contained therein identified by this witness. Another thing is that during cross examination, he stated that there was no conversation of demand of money and rank of police official in the conversation which was recorded in CBI office.
31 I have gone through the ratio of judgment in case of A. Subair Vs. State of Kerala (2009) 6 SCC 587 in which it was held that primary requisite of an offence under Section 13(1)(d) of the Act is proof of a demand or request of a valuable thing or pecuniary advantage from the public servant. It was further observed that in the absence of proof of demand or request from the public servant for a valuable thing or pecuniary advantage, the offence under Section 13(1)(d) of P.C. Act cannot be held to be established. 32 In the present case, prosecution has failed to establish convincingly that demand of bribe was made by accused on AC No.12/2008 CBI Vs. Surender Pandey Page 18 of 35 3.10.2007 or on 4.10.2007 before laying of trap. The complainant has not supported the case of prosecution that he made any complaint against accused that he had demanded bribe from him. So far as alleged demand of bribe by accused at the time of conversation recorded in CBI office is concerned, the complainant as well as independent witness PW7 were not confronted with the voices contained in cassette Ex.P17. The voice of accused allegedly containing in cassette Ex.P17 has not been identified. Moreover, both these witnesses have stated that accused had not made any demand of bribe. Therefore, the report of Voice Expert Ex.PW2/1 is of no help to the prosecution as the above witnesses have categorically stated that no demand of bribe was made by accused. The complainant has also falsified the transcription Ex.PW7/G which was transcription of conversation contained in cassette Ex.P17 by stating that his signatures on the same were obtained by CBI officials and its contents were not read over or explained to him. So, the prosecution can not get any help from transcription Ex.PW7/G also. 33 Thus, the prosecution has failed to establish one of the essential ingredients of trap case that there was demand of bribe by accused prior to laying of trap.
AC No.12/2008 CBI Vs. Surender Pandey Page 19 of 35 Demand at spot, acceptance and its recovery 34 It is alleged against accused that at the time of trap, he demanded bribe from the complainant and accepted it with his right hand and kept it in back side pant pocket. It is also alleged against him that recovery of tainted GC notes was effected from his left hand.
35 On the other hand, Ld. Defence counsel has argued that there is no evidence as to demand of bribe by accused at the spot. He has further argued that accused never demanded any bribe from the complainant nor its recovery was ever effected from him. 36 To prove the trap and demand of bribe by accused at the spot and its recovery from his person, prosecution has examined the complainant. Complainant in his deposition has stated that on 4.10.2007, he along with Hashmat Ali and two other persons reached CBI office where two persons from Income Tax Department were summoned. Some powder was summoned which was applied on the currency notes given by Hashmat Ali. Those currency notes were in the denomination of 3 notes of Rs. 500/ and one note of Rs. 1000/. A Handing over Memo Ex.PW6/B was prepared and after completing formalities, they left for PS Welcome. He stated that he along with AC No.12/2008 CBI Vs. Surender Pandey Page 20 of 35 Hashmat Ali, one Kalim and 1012 persons of CBI went there. After reaching Jafrabad, Hashmat Ali made a call and accused asked him to come to Police Post within 510 minutes. After about 10 minutes, accused came there, took seat in Police Post and had a long conversation with 23 police persons. Thereafter, Hashmat Ali and one person who came from Income Tax Department went to accused and gave currency notes to him. The complainant has stated that he was available at a short distance from Hashmat Ali and that money was given in his presence.
37 In his entire testimony, complainant has not uttered even a single word that he had any talk with the accused at his office. He has stated that he was at some distance of Hashmat Ali who had a talk with accused. As per his testimony, he had no conversation with accused at the spot. If this testimony of complainant is to be accepted, then he was accompanied by Hashmat Ali and one Kalim to the police post, but it is not the case of prosecution that any Hashmat Ali or Kalim were present at the spot at the time of laying trap. The IO (PW9) in his testimony has also not stated that any person by the name of Hashmat Ali and Kalim were the part of raiding party. There is nothing in the testimony of complainant that any demand of bribe AC No.12/2008 CBI Vs. Surender Pandey Page 21 of 35 was made by the accused from him at his office. During cross examination also, the complainant stated that accused never demanded any bribe from him.
38 The independent witnesses(PW7 and PW8) in their testimony have also not corroborated the version of complainant that they were accompanied by Hashmat Ali and Kalim at the time of laying trap.
39 The shadow witness Gyan Prakash (PW7) in his testimony has also not stated anything that any demand of bribe was made by accused in his presence. In his deposition, he stated that he along with Mr. Khan reached Police Post and one police man came there. All three of them went inside the police picket. Mr. Khan had a conversation with that police man and its topic was some girl who had run away. Police man told Mr. Khan that he had searched the girl at various location and raided some places but girl could not be located. Police man asked Mr. Khan to give precise address and thereafter Mr. Khan took out tainted notes and handed over to the police man. Witness further deposed that at first police man said that there was no need for money and what he required was proper address for locating the girl.
AC No.12/2008 CBI Vs. Surender Pandey Page 22 of 35 40 As per testimony of independent witness Gyan Prakash (PW7) who was acting as shadow witness, no specific demand of bribe was made by accused at the spot from the complainant. As per his deposition, there were some talks between accused and complainant at the spot but the same were confined to missing of a girl and nothing more.
41 It is the case of prosecution itself that apart from complainant (PW6) and shadow witness (PW7), no other member of the raiding party was present to witness the demand of bribe at the spot as rest of the trap party members were scattered near the spot. 42 In view of above discussion, there is no evidence against accused that he demanded any bribe from the complainant at the spot. There is nothing in the testimony of complainant as well as in the testimony of shadow witness (PW7) that accused demanded any bribe from the complainant at the time of laying trap. 43 So far as acceptance of bribe by accused and its recovery from him is concerned, the complainant has not supported the case of prosecution in this regard also. In his deposition, complainant (PW6) stated that at the police post, Hashmat Ali and one person who came from Income Tax Department went to accused AC No.12/2008 CBI Vs. Surender Pandey Page 23 of 35 and gave currency notes to him. He stated that he was available at a short distance from Hashmat Ali and money was given in his presence. A signal was given, CBI people came inside and caught hold the hands of accused from wrists. He has not stated anything in his entire testimony from as to where the recovery of tainted GC notes was effected.
44 During his examination in chief, alleged recovered GC notes Ex.P7 to Ex.P10 were put to him which he identified to be the same which were produced by him at CBI office. He has not identified these notes as the same which were recovered from accused. The complainant has also not stated anything to the fact that the alleged recovered GC notes from accused were ever tallied with the Handing Over Memo Ex.PW6/B. 45 So far as acceptance of money is concerned, the complainant has stated that he had not dealt with accused at the time of alleged transaction, rather the said transaction had taken place between the accused and Hashmat Ali. But a careful reading of testimony of complainant shows that accused had not demanded any bribe either from him or from Hashmat Ali, rather Hashmat Ali of his own gave money to the accused for the reasons best known to him. AC No.12/2008 CBI Vs. Surender Pandey Page 24 of 35 Thus, the complainant has demolished the case of prosecution by stating that he had not dealt with accused at the spot, rather it was Hashmat Ali who transacted with accused.
46 So, there is nothing in the testimony of complainant that accused voluntarily accepted bribe from him or its recovery was effected from him.
47 As per case of prosecution, independent witness Gyan Prakash (PW7) who was acting as shadow witness had also witnessed the transaction of bribe money. In his testimony,PW7 has stated that in Police Post, accused asked complainant to give precise address so that raid for search of girl could be successful. He further stated that the complainant told the accused that he would give precise address and then took out tainted notes and handed over to accused. At first, accused said that there was no need for money and he required only proper address for locating the girl. Thereafter, accused accepted money and kept it in his back side pant pocket. With regard to recovery, PW7 stated that the tainted notes were recovered from back side pant pocket of accused by Inspector Shyam Prakash. He categorically stated that he had not seen the same because he was outside. He further stated that he was called inside AC No.12/2008 CBI Vs. Surender Pandey Page 25 of 35 and Inspector Shyam Prakash asked him to check whether the recovered notes were same which were treated at CBI office, but he did not check the number of currency notes.
48 As per testimony of this witness, the money accepted by accused was not in pursuance of demand of bribe, rather the complainant himself had thrust the same into the hands of accused. It has not come in his evidence that the money accepted by the accused was bribe. So far as recovery is concerned, witness PW7 has stated that he was outside at the time of recovery and came to know that recovery of notes was effected by Inspector Shyam Prakash from the back side pant pocket of accused.
49 Inspector Shyam Prakash (PW9) in his testimony has stated that after receipt of preappointed signal, when he along with CBI team rushed into the police post, accused was found having bribe money in his left hand. He further stated that independent witness Dinesh Kumar recovered bribe money from the left hand of accused. 50 Independent witness Dinesh Kumar (PW8) has controverted the testimony of IO by stating that CBI took notes from the hands of accused and showed to them.
51 As per chargesheet, the recovery of alleged bribe AC No.12/2008 CBI Vs. Surender Pandey Page 26 of 35 money was recovered from the left hand of accused by independent witness Dinesh Kumar (PW8). But the fact remains that neither the complainant (PW6) nor independent witness Gyan Prakash (PW7) who was also a shadow witness have supported the case of prosecution. On the one hand, complainant has not stated anything in his testimony with regard to recovery of bribe money from accused. On the other hand, shadow witness (PW7) has stated that recovery of GC notes was not effected in his presence as he was outside and he came to know that the same were recovered by Inspector Shyam Prakash(PW9). His testimony has been controverted by PW9 IO Inspector Shyam Prakash who stated that bribe money was recovered from the left hand of accused by independent witness Dinesh Kumar (PW8). Dinesh Kumar has not supported the case of prosecution as he has not stated that he recovered bribe money from the accused, rather it was recovered by CBI officials and then shown to all of them. 52 In view of above discussion, I am of the considered opinion that the prosecution has failed to establish that the money was accepted by accused voluntarily as bribe. Prosecution has also failed to prove recovery of bribe money from the person of accused beyond reasonable doubt. As the complainant and independent witnesses AC No.12/2008 CBI Vs. Surender Pandey Page 27 of 35 have not supported the case of prosecution on these counts, the prosecution cannot get any help from the reports of wash expert and voice expert.
53 I have gone through the ratio of judgment in case of Banarsi Dass Vs. State of Haryana AIR 2010 SC 1589. In the said case, Hon'ble Apex Court while relying upon earlier pronouncement in case of Suraj mal Vs. State (Delhi Admn.) MANU/SC/0268/1979 held that mere recovery by itself cannot prove the charge of prosecution against the accused in the absence of any evidence to prove payment of bribe or to show that accused voluntarily accepted the money.
54 I have also gone through another judgment of Hon'ble Apex Court in case of C.M. Sharma Vs. State of A.P. Th. I.P. AIR 2011 SC 608 in which it was also held that mere recovery of currency notes itself does not constitute the offence under the Act, unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be bribe. 55 In the present case, the prosecution has miserably failed to prove that accused demanded bribe from the complainant. Neither the complainant (PW6) nor the shadow witness (PW7) AC No.12/2008 CBI Vs. Surender Pandey Page 28 of 35 supported the case of the prosecution that accused demanded and accepted bribe from the complainant. Complainant (PW5) has completely demolished the case of prosecution by saying that he had not dealt with accused at the time of laying trap and no transaction of bribe had taken place between him and accused. Even the prosecution has failed to prove the recovery of bribe money from the person of accused beyond reasonable doubt.
56 Thus, in my considered opinion, the prosecution has miserably failed to establish that at the spot, accused demanded bribe from the complainant. Prosecution has also failed to establish that accused accepted bribe from the complainant in police post or that its recovery was effected from him.
Defence 57 Accused has taken the defence that he has been falsely implicated in the present case by the complainant Abid Khan who was BC of the area and with a view to take revenge, he falsely implicated him in the present case.
58 To prove the fact that complainant (PW6) is the BC of the area, accused examined DW1 Inspector Pardeep Kumar. DW1 deposed that he was posted in PS Welcome on 29.09.2007 and AC No.12/2008 CBI Vs. Surender Pandey Page 29 of 35 investigation of the case FIR No.692/2007 was marked to him for investigation. The FIR was lodged by Hasmat Ali and Abid Khan was not a witness in the said case. During investigation, he found that Abid Khan (PW6) was not having any concern nor he was a relative of Hasmat Ali as well as Mumtaz @ Chooti, daughter of Hasmat Ali. He further deposed that investigation of FIR No.692/2007 was never handed over to accused and he did not make any inquiries. 59 During crossexamination, DW1 stated that at the relevant time, he was Addl. SHO. He further stated that Abid Khan never visited him in connection with investigation of FIR No. 692/2007. He has stated that as per Ex.PW9/A, accused Surender Pandey was having missing report of Chooti. He further stated that accused recorded statement of Hasmat Ali and made his endorsement, on the basis of which FIR was registered.
60 Perusal of documents Ex.PW9/A show that a report was made by Hasmat Ali regarding her missing daughter Chooti. The said missing report was marked to accused who recorded statement of Hasmat Ali and made his endorsement thereon. On the basis of endorsement made by accused, FIR No.692/2007 was registered under Section 365 IPC. Perusal of copy of FIR shows that the AC No.12/2008 CBI Vs. Surender Pandey Page 30 of 35 investigation of the case was assigned to Inspector Pardeep Kumar Sharma (DW1).
61 So, it has been shown that after the registration of FIR of missing of Chooti, case was being investigated by DW1 and accused had no concern with the same.
62 Witness DW2 HC Virender Kumar has proved one document as Ex.DW2/A as per which complainant Abid (PW6) was involved in four cases of PS Welcome. Ex.DW2/A shows that four cases bearing FIR No.115/2007 u/s 452/354/323/506 IPC, FIR No. 190/92 u/s 18/9/55 of Gangster Act, FIR No.691/2007 u/s 354/34 IPC and FIR No.741/2007 u/s 186/332/253/223/225/34 IPC were registered in PS Welcome against complainant Abid. Even, complainant (PW6) during the course of his corssexamination has admitted that he is BC of PS Welcome and five cases were registered against him. Ex.DW2/A as well as admission of complainant probabilises the defence of accused that complainant Abid Khan (PW6) was BC of the area.
63 Asmat Ali, father of Mumtaz @ Chhoti has been examined by accused as DW4. He stated that in the year 2007, he lodged a missing report of his daughter Mumtaz. Police conducted AC No.12/2008 CBI Vs. Surender Pandey Page 31 of 35 inquiry and she returned at her home. He stated that he did not know accused and did not remember if any inquiry was conducted by him. He further stated that he did not have any complaint against police official in the matter of missing of his daughter. He further stated that he did not make any complaint against the police to anyone. 64 DW4 Asmat Ali is the father of Mumtaz whose missing report and FIR No.692/2007 was lodged. DW4 categorically stated that he did not make any complaint against any police official with regard missing of his daughter. DW4 appears to have no grudge against any police official that any demand of bribe was made from him.
65 To prove the fact that complainant Abid Khan (PW6) was having grudge against the accused, defence witness Ikrar Hassain Idrishi (DW6) has deposed that he knew accused Surender Pandey as he was division officer and was posted in PS Welcome. He further deposed that one Abid was running his rickshaw garage illegally on road and said garage was removed by accused Surender Pandey being division officer. Since then, Abid started having enmity with accused and threatened to teach him a lesson.
66 Testimony of DW6 probabilises the defence of AC No.12/2008 CBI Vs. Surender Pandey Page 32 of 35 accused that he has been falsely implicated in the present case by complainant as he was having grudge against him. Conclusion 67 In totality of discussion made above, the prosecution has failed to establish that there was demand of bribe by accused from the complainant prior to laying of trap. The complainant (PW6) has not supported the case of prosecution. He has stated that he had not made any complaint against the accused regarding demand of bribe. He has even stated that there was no demand of bribe by accused from him at any point of time.
68 The prosecution has also failed to establish that at the time of laying trap there was any demand of bribe by accused from the complainant. The complainant (PW6) has stated that he had no conversation with accused at the spot, rather Hashmat Ali had a talk with him and he was at some distance from Hashmat Ali. The shadow witness (PW7) has also not supported the case of prosecution. In his entire testimony, shadow witness (PW7) has not stated anything whether he heard the conversation between accused and complainant at the spot. There is no other evidence on record to establish that any demand of bribe was made by accused at the time of laying trap. AC No.12/2008 CBI Vs. Surender Pandey Page 33 of 35 69 Prosecution has also failed to establish that there was any acceptance of bribe by accused or its recovery from his person. Both complainant (PW6) as well as shadow witness (PW7) have not supported the case of prosecution. Complainant has stated that he had not dealt with accused at the spot. He has stated that Hashmat Ali gave money to the accused, but he had not disclosed the purpose for which money was given to the accused. In the absence of any evidence, the prosecution has failed to prove that accused accepted bribe money at the spot.
70 The recovery of bribe money from the accused has also not been convincingly established. The complainant (PW6) has not stated anything in his testimony that tainted GC notes were recovered from the person of accused. Shadow witness (PW7) has also not supported the case of prosecution. He stated that at the time of recovery of alleged bribe money, he was outside the room and when he entered the room, he came to know that bribe money was recovered by Inspector Shyam Prakash (PW9). The recovery witness Dinesh Kumar (PW8) also not supported the case of prosecution. He has stated that the alleged recovery was effected by CBI officials which was shown to trap party members after its recovery. He had AC No.12/2008 CBI Vs. Surender Pandey Page 34 of 35 not stated that he recovered the bribe money from the person of accused. In view of this position of matter, prosecution has failed to establish beyond reasonable doubt that recovery of bribe money was effected from the person of accused.
71 Consequently, in view of above discussion, I am of the considered opinion that the prosecution has miserably failed to establish the charges against the accused. Therefore, accused Surender Pandey is hereby acquitted of the charges framed against him.
72 Accused is directed to comply with the provisions of Section 437A of Cr.P.C.
Announced in the open Court ( P.S. TEJI )
Dated: 06.08.2012 District Judge & ASJ, I/C (East)
Special Judge (CBI)
Karkardooma Courts : Delhi
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