Delhi District Court
98.In State Of Rajasthan vs . Smt. Kalki And Another, (1981) 2 Scc on 29 January, 2020
CBI - 221/2019 RC No. 38(A)/2018
DLCT110008792019
THE COURT OF SH. PULASTYA PRAMACHALA
SPECIAL JUDGE (PC ACT) CBI-13,
ROUSE AVENUE DISTRICT COURT, NEW DELHI
Registration No. : CBI - 221/2019
Under Section : U/s 120 B of IPC r/w U/s 7 and 7A of PC Act
1988 (as amended in 2018) and
substantive offences u/s 7 and 7A of PC
Act, 1988 (as amended in 2018).
Branch : CBI, ACB, New Delhi
FIR No. : RC-DAI-2018-A-0038
CNR No. : DLCT11-000879-2019
In the matter of: -
CBI
VERSUS
1. SH. ANIMESH KUMAR
S/o. Sh. S. K. Choudhary,
R/o. 503/1, Bagri Mohalla, Pana Udyan,
Narela, Delhi.
2. SH. JITENDER SINGH
S/o Sh. Raj Singh Dahiya,
R/o Vill-Nilauthi, Teh. - Bahadurgarh,
Distt- Jhajjar, Haryana.
........ACCUSED PERSONS
Page 1 of 118 (Pulastya Pramachala)
Special Judge (PC Act) CBI-13,
Rouse Avenue District Court,
New Delhi
CBI - 221/2019 RC No. 38(A)/2018
Complainant : SH. Sunil Kumar Sehrawat
S/o. Sh. Bhagwan Sehrawat,
R/o. H.No. 52, Village-Shinghu,
Delhi-110040.
Date of Institution : 20.04.2019
Date of reserving judgment : 18.01.2020
Date of pronouncement : 29.01.2020
Decision : Convicted.
(Section 437-A Cr.P.C. complied with by both the accused
persons)
JUDGMENT
THE CASE SET UP BY THE PROSECUTION
1. Briefly stated, the relevant facts of the case are that complainant Sh. Sunil Kumar Sehrawat, S/o Sh. Bhagwan Sehrawat R/o H.No. 52, Village Shinghu, Delhi-110040, made a complaint dated 03.12.2018 to CBI alleging therein that Sh. Animesh Kumar, who was posted as Assistant Public Health Inspector (Contractual), Narela Zone, MCD, had demanded bribe of Rs. 10,000/- from the complainant for not sealing his water plant running at Village Singhu, Delhi-110040. Complainant being afraid, paid bribe of Rs.8,000/- to Sh. Animesh Kumar on 29.11.2018. After two days, Sh. Animesh Kumar informed the complainant that the file related to sealing of his water plant was transferred to Sh. Jitender Singh, who had joined MCD office Narela in place of Animesh and complainant had to pay bribe of Rs. 10,000/-
Page 2 of 118 (Pulastya Pramachala)Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 to him to save his water plant from sealing. As the complainant did not want to pay the bribe amount, he submitted the present complaint to SP, CBI, ACB, Delhi, for taking legal action against the accused persons.
2. After completion of investigation, both the accused persons were charge sheeted for offences punishable under Section 120-B IPC r/w Section 7 and 7A of PC Act 1988 (as amended in 2018) and substantive offences under Section 7 & 7A of PC Act 1988 (as amended in 2018) (herein after referred to as the Act). Since, both the accused persons were public servants (though contractual), hence, sanction for prosecution in respect of both the accused persons namely accused Animesh Kumar and accused Jitender Singh was obtained from competent authority.
3. In the charge sheet, it is alleged that after verification of demand of bribe, case was registered by CBI. A trap was laid on 03.12.2018, by a trap team consisting of CBI officers, complainant and independent witnesses. Complainant produced amount of Rs.10,000/- in the form of five currency notes of Rs.2,000/-, which were treated with phenolphthalein powder and kept in the pant pocket of complainant. Complainant and accused Jitender as well as accused Animesh had several telephonic talks, which were recorded in a memory card using a DVR, during verification proceedings as well as trap proceedings. Complainant visited office of accused persons and met them and handed over the bribe amount as per demand, to accused Animesh. Accused Animesh handed over that amount to accused Page 3 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 Jitender and Jitender was taking seat in a Maruti car, where one Mr. Sant Kumar was sitting on driver seat. Jitender handed over that amount to Sant Kumar and by that time TLO reached there and apprehended Jitender. Other team members also apprehended accused Animesh and Mr. Sant Kumar. Their hand washes were taken in separate solution of water and sodium carbonate and transferred to separate bottles, which were sent to CFSL for expert opinion. The chemical examination report No.CFSL-2018/C-1293 dated 31.12.2018, received from CFSL, confirmed presence of phenolphthalein powder in the washes. The specimen voices of both accused persons were also taken and subsequently sent to CFSL, New Delhi, in sealed condition for their examination and comparison with recorded conversations. It is alleged in the charge sheet that accused Jitender demanded and obtained bribe amount as reward with intention for forbearing to seal the water cooling plant of the complainant. It is further alleged that accused Animesh after his transfer, obtained such bribe amount for accused Jitender under assurance to the complainant that he will persuade Jitender not to seal the water cooling plant of the complainant. CHARGES
4. On 22.05.2019, order on charge was passed and consequently vide order dated 31.05.2019, charges were framed against both the aforesaid accused persons for offences punishable under Section 120-B IPC read with Section 7 & 7A of PC Act, 1988 (as amended in 2018). Separate charge for substantive offences punishable under Page 4 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 Section 7 & 7A of PC Act 1988 (as amended in 2018) was also framed against accused Animesh and further separate charge for offence punishable under Section 7 of PC Act, 1988 (as amended in 2018) was framed against accused Jitender, to which they pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
5. CW-1 : Sh. P.K. Gottam, Principal Scientific Officer, Photo, CFSL, CBI, New Delhi. This witness was not in the list of prosecution witnesses, however, on the basis of evidence appearing on the record and facts of this case, it was found to be relevant to examine Mr. Gottam as a witness in this case. Hence, exercising powers under Section 165 Evidence Act r/w Section 311 Cr.P.C. Mr. Gottam was summoned to appear before the court as a witness and he was examined as a CW-1.
6. Prosecution examined 15 witnesses in support of its case, as per following descriptions: -
Sl. No. & Role of witness & Description of Proved documents/ Name of documents case properties Witness PW1/Ms. She was working as Commissioner Ex.PW-1/A(sanction Varsha North DMC, Dr. S.P.M Civic Centre, order accorded for Joshi Jawahar Lal Nehru Marg, New Delhi- prosecution of both
2. She knew accused Animesh Kumar accused namely and Jitender Singh, as both of them Animesh Kumar and were employees of North DMC. She Jitender Singh).
was the appointing, removing as well as disciplinary authority qua these accused.
Page 5 of 118 (Pulastya Pramachala)Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 She identified her signature appearing at point X on both pages of the sanction order, which was accorded by her for prosecution of both accused persons.
PW2/Dr. He was working as Dy. Health Officer, Ex.PW2/A (carbon Rajesh Narela Zone since June 2018. He copy of challan no. Rawat knew both accused, as both of them 84860 dated were working as Assistant Public 19.02.2018); Health Inspectors (APHI) under him Ex.PW2/B(note since June 2018. prepared to issue the He identified copy of order no. PA/ closure notice to MHO/NDMC/2017/284 dated 05.09. complainant Sh. Sunil 2017, vide which the power to challan Sehrawat, in file D- u/s 417 DMC Act had been delegated 6A, which pertained to APHI from Municipal Health Officer. to re-inspection of He identified signatures of accused water cooling plant in Animesh Kumar appearing at points X the name of and X1 on carbon copy of challan no. complainant); 84860 dated 19.02.2018, which was Ex.PW2/C(The office issued by accused Animesh Kumar in copy of closure the name of complainant Sh. Sunil notice) & Sehrawat for running trade of water Ex. A-11 (Copy of cooling plant without municipal health order no. PA/MHO/ trade license and also under insanitary NDMC/2017/284 condition at H.No. 1, Village Singhu. dated 05.09.2017).
He identified signature of accused Animesh Kumar appearing at points X & X1 in the note prepared to issue the closure notice to complainant Sh. Sunil Sehrawat, in file D-6A, which pertained to re-inspection of water cooling plant in the name of complainant at H.No.1, Village Singhu. This file was put up before PW2 and he marked this file to accused Animesh Kumar for putting up the closure notice before him. PW2 identified his signature for this purpose on same note sheet appearing at point Y. He identified his signature appearing at point X on Page 6 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 photocopy/office copy of aforesaid closure notice. The original copy was sent to complainant/Sh. Sunil Sehrawat. The closure notice was served upon the addressee by APHI and a copy was also sent through post.
He identified both accused persons during proceedings of this case.
PW3/Sh. He was working as Nodal Officer in Ex.PW3/A (D-17 i.e. Surender Airtel company since 03.08.2015. A forwarding letter vide Kumar notice was received in his office from which PW3 handed CBI to provide CAF & CDR in respect over the requisite of nos. 9971354515 &9871169385 for documents to CBI period w.e.f. 29.11.18 to 03.12.18, officer);
certificate u/s 65-B of Evidence Act Ex.PW3/B (certified
and Tower location chart. copy of CAF of
He identified his signature with official mobile no. seal appearing at point X on D-17 i.e. 9971354515); forwarding letter through which he Ex.PW3/C(copy of (PW3) had handed over the requisite driving license documents to CBI officer. He had furnished alongwith handed over certified copy of CAF of CAF by the mobile no. 9971354515 alongwith consumer);
CDR for aforesaid period to CBI
officer. Ex.PW3/D(two pages
of CDR of aforesaid
He identified his signature with official number); seal appearing at point X on certified copy of CAF of aforesaid number; on Ex.PW3/E(certified copy of driving license furnished copy of E-KYC of alongwith CAF by the consumer, which mobile number was given as per record maintained in 9871169385); respect of aforesaid CAF and on two Ex.PW3/F(certified pages of CDR of aforesaid number. copy of CDR of He identified his signature with official aforesaid number); seal appearing at point X on certified Ex.PW3/G(certified copy of E-KYC of mobile number copy of Cell ID chart) 9871169385; on first and last page of & certified copy of CDR of aforesaid number; on certified copy of Cell ID Ex.PW3/H(certificate Page 7 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 chart and on certificate u/s 65-B of u/s 65-B of Evidence Evidence Act. Act).
PW4/Sh. He knew accused Jitender Singh as they both belonged to Sant Kumar same native place/village and same Kunba. PW4 had taken Maruti Dzire car of accused Jitender and had come to office to return the car. His testimony was not found favourable, hence, Public Prosecutor cross examined him as well. He denied that any amount was given to him by Jitender or that he kept any amount on dickey of the Maruti car. He denied having made any statement to the contrary before IO.
He identified his signature appearing at point X on Ex.A-14 (D-20), which was the same paper on which his signature was obtained by CBI persons.
PW5/Ms. On 31.12.2018, she was posted as Sr. Ex.PW5/A (chemical Deepti Scientific Officer, Grade-II cum examination report Bhargava Assistant Chemical Examiner, CFSL, regarding presence Lodhi Road, New Delhi. of Phenolphthalein She conducted chemical examination and Sodium of solutions in five sealed glass bottles Carbonate in five marked as RHW - Animesh Kumar, sealed glass bottles); LHW - Animesh Kumar, RHW - Ex.Article/PW-5/1 to Jitender Singh, LHW - Jitender Singh Ex.Article/PW-5/5 & LHW - Sant Kumar, in this case and (five glass bottles gave her finding regarding presence of sealed with the seal Phenolphthalein and Sodium of D.B.CHEM. DIV. Carbonate in the same. All bottles CFSL.NEW DELHI) & were received in her lab sealed with Ex.Article/PW-5/7 to seal of C.B.I.A.C.B. N.D 83/2018. Ex.Article/PW-5/11, She identified her signature appearing which were taken out at point X on both sides of page of D- of a parcel 21 i.e. report which was prepared by (Ex.Article/PW-5/6). her.
She identified her signatures appearing at point X on labels of all these bottles. She also identified her seal of D.B.CHEM.DIV.CFSL.NEW DELHI on all five bottles.
Page 8 of 118 (Pulastya Pramachala)Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 She also identified her signature with endorsement in black ink appearing at point X on five cloth pieces/pullandas.
PW6/Sh. He was working as Nodal Officer, Ex.PW6/A (D-18 i.e. Kamal Reliance JIO Infocom Ltd w.e.f forwarding letter, vide Kumar 06.12.16. which he had He identified his signature appearing supplied relevant at point X on D-18 i.e. forwarding documents to CBI letter, vide which he had supplied officer); certified copies of call details of Mobile Ex. PW6/B(certified nos. 8368700074 & 8168616123, copy of Consumer customer's application form, Cell I.D. Application Form in Chart and certificate u/s 65-B of the name of Sunil Evidence Act, to CBI Officer/Ms. Veer Kumar, on the basis Jyoti in CBI office. of which mobile no.
He identified his signature with seal 8368700074 was appearing at point X on certified copy allotted by the of Consumer Application Form in the company); name of Sunil Kumar S/o Sh. Ex. PW-6/C (CDR of Bhagwan, on the basis of which mobile no.
mobile no. 8368700074 was allotted 8368700074 for the by the company. period from 29.11.18 He identified his initial with official to 03.12.18); stamp appearing at point X on each Ex.PW-6/D page of CDR of mobile no. (certificate u/s 65-B 8368700074 for the period from of Evidence Act, in 29.11.18 to 03.12.18. He also respect of aforesaid identified his signature with official CDR); stamp appearing at point X on Ex. PW-6/E (certified certificate u/s 65-B of Evidence Act, in copy of Cell ID Chart respect of aforesaid CDR and on each in respect of page of certified copy of Cell ID Chart aforesaid number); in respect of aforesaid number.
Ex. PW-6/F (D-19 i.e. He also identified his signature forwarding letter, vide appearing at point X on D-19 i.e. which he had forwarding letter, vide which he had supplied documents supplied documents pertaining to pertaining to mobile mobile no. 8168616123 to CBI officer/ no. 8168616123 to Page 9 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 Ms. Veer Jyoti. He also identified his CBI officer); signature with seal appearing at point X on Consumer Application Form (CAF) in the name of accused Jitender Ex. PW6/G (CAF in Singh S/o Sh. Raj Singh, on the basis the name of accused of which mobile no. 8168616123 was Jitender Singh, on allotted by the company. He identified the basis of which his initial with official stamp appearing mobile at point X on each page of CDR of no.8168616123 was mobile no. 8168616123 in the name of allotted by the accused Sh. Jitender Singh for the company); period from 29.11.18 to 03.12.18. He Ex.PW-6/H (CDR of also identified his signature with official mobile stamp appearing at point X on no.8168616123 in the certificate u/s 65-B of Evidence Act, in name of accused Sh. respect of aforesaid CDR. He also Jitender Singh for the identified his initial with official stamp period from 29.11.18 appearing at point X on each page of to 03.12.18);
certified copy of Cell ID Chart in
respect of aforesaid number. Ex. PW-6/I
(certificate u/s 65-B
of Evidence Act, in
respect of aforesaid
CDR) &
Ex. PW-6/J (certified
copy of Cell ID Chart
in respect of
aforesaid number).
PW7/Insp. On 03.12.2018, he was handed over Ex.PW-7/A(search
C.M.S. Negi search warrant u/s 165 Cr.P.C. by list of challan book,
Insp. Sunil Dahiya, with direction to passbook and
conduct search at the residence of cheque book of bank
accused Animesh Kumar at Bagri account and some
Mohalla, Pana Udyan, Narela. other official
He prepared bunch of a challan book, documents of MCD
passbook and cheque book of bank as per their typical
account and some other official nature, which were
documents of MCD as per their typical recovered from the
house of accused
Page 10 of 118 (Pulastya Pramachala)
Special Judge (PC Act) CBI-13,
Rouse Avenue District Court,
New Delhi
CBI - 221/2019 RC No. 38(A)/2018
nature, which were recovered from the Animesh) house of accused Animesh.
These documents were paginated and every page of documents were signed by both independent witnesses namely Mr. Lekhraj and Mr. Ankit. He seized all those documents vide a search list.
He identified his signature appearing at point X on both pages of aforesaid search list, which was prepared by him. PW7 handed over copy of that search list to Mr. Sanjay Kumar and obtained his acknowledgement on the search list itself. PW7 had obtained receiving of handing over the keys to Mr. Sanjay Kumar, which appears at encircle Y on aforesaid search list.
He also identified signature of Mr. Lekh Raj appearing at point X and of Mr. Ankit appearing at point Y on the front cover of document Ex.A-6 (D-10A) i.e. the challan book.
PW8/Mohd. As per instructions given by his depot Ex.PW-8/A (D-4 i.e. Sahid manager, PW8 had taken personal handing over files of 5 drivers of DTC to CBI Office memorandum); at Lodi Road on 03.12.18 at about 10- Ex.PW-8/B (D-5 i.e. 10.30 a.m. He was made part of recovery memo); raiding team. He gave account of pre trap and trap proceedings. Ex.PW-8/C (D-6 i.e. search cum seizure He identified both accused persons memo);
during proceedings of this case.
Ex.PW8/Article-1 He identified his signature appearing (memory card related at point X on each page of document to parcel 2/Exhibit D-4 i.e. handing over memorandum Q2);
and document D-5 i.e. recovery Ex.PW8/Article-2 memo. (main cover of He also identified his signature aforesaid memory appearing at point X on both pages of card);
document D-6 i.e. search cum seizure Ex.PW8/Article-3 memo. (brown envelope He identified his signature appearing taken out from parcel 2/Exhibit Q2);
Page 11 of 118 (Pulastya Pramachala)Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 at point X on document D-7 i.e. site Ex.PW8/Article-4 plan and document Ex.A-4 (D-8) i.e. (envelope sealed with arrest cum personal search memo of the seal of ACB CBI accused Animesh Kumar. He also ND 83/2018, bearing identified his signature appearing at endorsement of 'DVR point X on both pages of document used in CO-48/18 Ex.A-5 (D-9) i.e. arrest cum personal and RC No. search memo of accused Jitender 38(A)/2018 DLI');
Singh. Ex.PW8/Article-5
He identified his signature appearing (envelope having
at point X on an open brown envelope endorsement of 'Trap
bearing seal of CBI ACB ND 83/2018 money in RC no.
having endorsement with Q2 in RC- 38(A)/2018 DLI');
38(A)/2018, which was taken out from Ex.PW8/Article-6
a sealed parcel 2/Exhibit Q2, sealed (currency notes);
with seal of M.K.J.S.S.A(PHY)C.F.S.L. Ex.PW8/Article-7
CBI.N.D. From said open brown (memory card related
envelope, a memory card in its original to parcel-3/Exhibit S- cover was taken out and PW8 1); Ex.PW8/Article-8 identified his signature appearing on (main cover of the back side of the cover at point X. aforesaid memory card) & He identified his signature appearing Ex.PW8/Article-9 at point X on the plastic cover of the (brown envelope memory card. From which, memory taken out from card was taken out and with aid of parcel-3/Exhibit S-1). memory card reader, same was inserted in the computer.
He identified his signature appearing at point Y on each slip pasted on 5 sealed bottles i.e. Ex.PW5/Article-1 to Ex.PW5/ Article-5.
He identified his signature appearing at point X on the envelope sealed with the seal of ACB CBI ND 83/2018, bearing endorsement of 'DVR used in CO-48/18 and RC No. 38(A)/2018 DLI'.
He identified another sealed envelope bearing seal of ACB Page 12 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 CBI ND 83/2018 and endorsement of 'Trap money in RC no. 38(A)/2018 DLI', bearing his signature at point X, which was opened and 5 currency notes of Rs. 2000/- each were taken out. The number of these currency notes were compared with the number of currency notes mentioned in Ex.PW8/A and were found to be same.
He identified a sealed parcel-3/Exhibit S-1 sealed with the seal of M.K.J.S.S. A.(PHY) C.F.S.L./CBI.N.D, which was endorsed with CFSL 2018/P-1308, from which a brown open envelope was taken out from the same bearing seal of CBI ACB ND 83/2018, bearing his signature on the envelope at point X. PW-8 identified a memory card in its original cover, which was taken out from brown open envelope and identified his signature on the back side of cover at point X. He also identified his signature at point X on the plastic cover. Aforesaid memory card was taken out and with aid of memory card reader, same was inserted in the computer. In respect of conversation in audio file 181204_0606, PW8 identified his voice and stated that he had given this voice in the CBI office. In respect of conversation in audio file 181204_0611, he identified his voice and stated that he had given this voice in the CBI office.
PW9/Insp. He was posted in ACB, New Delhi. On Ex.PW9/A (D-3 i.e. Raman 03.12.2018, he was asked to verify verification memo Kumar complaint made by complainant Sh. prepared by PW9); Shukla Sunil Kumar Sehrawat, by SP ACB Ex.PW9/Article-1 CBI, New Delhi. He got registered that (containing a parcel1/ complaint in the complaint section and Exhibit-Q1); CO no.48/18 was assigned to it. He Ex.PW9/Article-2 read that complaint and made further (The main packet of enquiry from complainant about his memory card taken complaint, who informed him that out from aforesaid accused namely Animesh and Jitender envelope) & used to talk to him on telephone as Ex.PW9/Article-3 well. PW9 arranged one DVR and a (plastic packet of new memory card from the care taker. aforesaid memory He also arranged an independent card).
witness through duty officer. He also Page 13 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 checked blankness of DVR while checking presence of any file in the memory of DVR and there was none.
He also checked blankness of memory card by inserting it in DVR and checking presence of any file and there was none. He recorded introductory voice of Mr. Shekhar Kumar in that memory card.
He identified his signature appearing at point X on each page of document D-3 i.e. verification memo, which was prepared by him in this case.
He was witness to pre and post trap proceedings. He gave account of these proceedings. He identified his signature appearing at point X over envelope containing a parcel1/Exhibit-Q1, sealed with seal of MKJSSA(PHY)CFSL CBI N.D. On opening the same, a brown envelope was taken out in open condition, though having seal of ACB CBI ND 83/2018. A packet of memory card was taken out from this envelope and PW9 identified his signature appearing at point X over this packet. There was another plastic packet, which was taken out from the main packet. PW9 further identified his signature appearing at point X. PW9 identified his signature appearing at point Y on each page of handing over memo (Ex.PW8/A).
PW9 identified his signature appearing at point Y on each page of D-5 i.e. recovery memo (Ex.PW8/B).
PW9 identified his signature appearing at point Y on each page of D-6 i.e. search cum seizure memo (Ex. PW8/C). He correctly identified both accused persons before the court.
PW10/Sh. He was working as Sr. Scientific Ex. PW10/A (report M.K. Jain Assistant (Physics) in CFSL, New prepared by PW10);
Delhi, since 2008 and on 17.12.2018, Ex.PW10/Article-1 a letter was received from SP, ACB, (parcel-1/Q1); CBI, New Delhi, along with four sealed parcels i.e. Q1, Q2, S1 and S2, for the Ex.PW10/Article-2 purpose of examination, in CFSL, New (parcel-2/Q2);
Page 14 of 118 (Pulastya Pramachala)Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 Delhi. He conducted auditory analysis Ex.PW10/Article-3 and compared the linguistic and (parcel-3/S1); phonetic features in the questioned Ex.PW10/Article-4 and specimen voice of both accused (parcel-4/S2); persons. On the basis of findings recorded in his worksheets, PW10 Ex.PW10/Article-5 prepared final result of the report, (brown envelope, mentioning the details of marks given which was taken out by him and the test conducted by him from Ex.PW10/ as well as the final opinion against the Article-4); questionnaire raised by SP CBI. After Ex.PW10/Article-6 ( preparing the report, PW10 sent the packet of memory same to Director CFSL through HOD card, which was alongwith a forwarding letter. PW10 taken out from sealed the separate envelopes of Ex.PW10/Article-5) & exhibits with his seal of MKJ SSA (PHY) CFSL/CBI/ND. Ex.PW10/Article-7 (memory card, He identified his signature appearing bearing initial of at point X on each page and his stamp PW10 with S2). appearing on the last page of the report.
He identified his signature appearing at point X and rest of the writings under his handwriting on parcel-1/Q1, parcel- 2/Q2, parcel-3/S1, parcel-4/S2.
PW10 also identified his seal i.e. MKJ SSA (PHY) CFSL/CBI/ND on parcel-4/S2.
PW10 identified his handwriting and signature appearing at point X on one brown envelope, which was taken out from Ex.PW10/Article-4. He also identified his handwriting with signature appearing at point X on a packet of memory card, which was taken out from Ex.PW10/Article-5. He further identified a memory card bearing his initial with S2 in his handwriting.
PW11/Sh. He was complainant in the present Ex.PW-11/A Sunil case and was witness of verification (complaint of PW11) Page 15 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 Sehrawat pre trap and trap proceeding in the & present case. He gave account of Ex.PW11/Article-1 these proceedings, besides narrating (memory card Q1). happenings with him.
He identified his signature appearing at point X on his complaint.
He identified his signature appearing at point Y on verification memo (Ex.PW9/A).
He identified his signature appearing at point Z on each page of documents Ex.PW8/A (D-4) and Ex.PW8/B (D-5). He identified his signature appearing at point X on each page of document D-13.
He identified his signature appearing at point Z on the envelope i.e. Ex.PW9/Article-1, which contained memory card Q1. PW11 also identified his signature appearing on main packet as well as on plastic cover at point Z. PW11also identified recording pertained to his telephonic talk with accused Animesh in Audio files bearing no. 181203_1338_01 and 181203_1357_01, stored in memory card Q1. PW11 also identified recording pertaining to his telephonic talk with accused Jitender in Audio file bearing no. 181203_1346, stored in memory card Q1.
He identified recordings pertaining to his talk with accused Animesh in Audio file bearing no. 181203_1651, stored in memory card Q2/Ex.PW8/Article-1. PW11 also identified recording pertaining to his talk with accused Jitender in Audio files bearing no. 181203_1539, 181203_1641 and 181203_1703, which were stored in memory card Q2/Ex. PW8/Article-1.
PW12/Sh. He was witness to verification of complaint of complainant as Shekhar well as trap proceedings. On 03.12.18, he was working as Kumar Clerk, Bank of India, CGO Complex Branch, Lodhi Road, New Delhi. He also gave account of these proceedings. He identified his signature appearing at point Z1 on a brown envelope Ex.PW9/Article-1, which was taken out from parcel Page 16 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 Ex.PW10/Article-1.
He identified his signature appearing at point Z1 on main packet of a memory card Ex.PW9/Article-2, which was taken out from envelope Ex.PW9/Article-1. He also identified his initial at point Z1 on plastic cover Ex.PW9/Article-3, which was taken out from Ex.PW9/Article-2. Memory card was taken out from Ex.PW9/Article-3 and was played on a laptop using memory card reader. PW12 identified his voice recorded in audio file bearing no. 181203_1336. PW12 also identified audio file related to the first attempt made by complainant to make call to accused Animesh and conversation recorded in another audio file bearing no. 181203_1337, which was made in his presence by complainant and was recorded on memory card. PW12 also identified conversation taken place in his presence between accused Animesh and complainant on second attempt, recorded in another audio file bearing no. 181203_1338_01. PW12 also identified conversation taken place in his presence between accused Jitender and complainant, recorded in another audio file bearing no. 181203_1346. PW12 also identified conversation taken place in his presence between accused Animesh and complainant recorded in another audio file bearing no. 181203_1357_ 01. All these audio files were played before PW12 during proceeding of this case. Aforesaid envelope Ex.PW9/ Article- 1 was signed by him after it was sealed. The seal was handed over to PW12 by Sh. Shukla stating that PW12 should keep it safely and to produce it before the court whenever it was demanded.
He identified his signature appearing at point Y on brown envelope Ex.PW8/ Article-5.
He identified his signature appearing at point Z on each page and at point Z1 on last page of D-3/Ex.PW9/A i.e. verification memo. PW12 identified his signature appearing at point Z1 on each page and at point Z2 on page 3 of D-4/Ex.PW8/A i.e. handing over memo. PW12 also identified his signature at point Z1 on each page and at point Z2 on last page of D-5/ Ex.PW8/B i.e. recovery memo. PW12 identified his signature Page 17 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 at point Z on both pages of D-6/Ex.PW8/Ci.e. search cum seizure memo. PW12 also identified his signature appearing at point Y on D-7. i.e. site plan. PW12 also identified his signature appearing at point Y on D-8/Ex.A4 i.e. arrest cum personal search memo of accused Animesh. PW12 also identified his signature appearing at point Y on both pages of D-9/Ex.A5 i.e. arrest cum personal search memo of accused Jitender.
He identified both accused persons during proceeding of the case. He identified his signature appearing at point Z on the slip pasted on each 5 sealed bottles i.e. Ex.PW5/Article-1 to Ex.PW5/Article-5, which were the same bottles in which the hand washes were transferred at MCD office. He identified his signature appearing at point Z on a brown envelopeEx.PW8/Article-3, which was taken out from parcel Ex.PW10/Article-2 endorsed as Q2. From envelope Ex.PW8/Article-3, a memory card packet Ex.PW8/Article-2 was taken out. PW12 identified his signature appearing at point Z. Memory card in its plastic cover was taken out from aforesaid packet Ex.PW8/Article-2 and PW12 identified his initial on plastic cover at point Z. Memory card (Q2)Ex.PW8/ Article-1 was taken out from this plastic cover. Same was played on laptop through memory card reader. PW12 identified his voice recorded in audio file 181203_1530, which was played before him. PW12 also identified the conversations taken place before him in the vehicle before reaching the MCD office, recorded in audio file 181203_1641. He identified his signature appearing at point Z on a brown envelope Ex.PW8/Article-9, which was taken out from parcel Ex.PW10/Article-3, endorsed as S1. From that envelope Ex.PW8/Article-9, a memory card packet Ex.PW8/Article-8 was taken out. PW12 identified his signature appearing at point Z. Memory card in its plastic cover was taken out from this packet and he identified his initial on plastic cover at point Z, from which a memory card (S1) i.e. Ex.PW8/ Article-7 was taken out. Same was played on laptop through memory card reader. PW12 identified his voice, which was recorded in audio file 181204_0610, while taking sample voice of Page 18 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 accused. PW12 also identified voice of accused Jitender, who had so stated in his presence and same was recorded in audio file bearing no. 181204_0608. PW12 also identified his voice, which was recorded in audio file bearing no.181204_0601.
He identified his signature appearing at point Y on a brown envelope Ex.PW10/Article-5, which was taken out from a parcel Ex.PW10/Article-4, endorsed as S2. From that envelope Ex.PW10/Article-5, a memory card packet Ex. PW10/Article-6, was taken out. PW12 identified his signature appearing at point Y. Memory card in its plastic cover was taken out from this packet and PW12 identified his initial on plastic cover at point X. Memory card (S2) Ex.PW10/Article-7 was taken out from this plastic cover. Same was played on laptop through memory card reader. PW12 identified his voice, which was recorded in audio file 181204_0632, while taking sample voice of accused Animesh. PW12 also identified voice of accused Animesh, which was recorded in audio file 181204_0631.PW12 also identified his voice recorded in audio file 181204_0629 in the same proceedings.
PW13/Insp. On 03.12.18, he received copy of FIR Ex.PW13/A (D-7i.e. Sunil Kumar of this case for the purpose of site plan, which was investigation. He prepared a trap team prepared by Insp. consisting of Insp. Harnam Singh, Dharmender, in the Insp. N.C. Nawal, Insp. Raman Kumar presence of PW13) & Shukla, Insp. Dharmender, SI Pawan Ex.PW13/Article-1 Lamba and some other subordinate (DVR used by PW13 staff. He asked duty officer to provide in trap proceedings of two independent witnesses. this case.).
Duty officer sent Sh. Shekhar Kumar and Mohd. Sahid to him as independent witnesses. Insp. Raman Shukla had introduced complainant Sh. Sunil Sehrawat to him (PW13) prior to forming the trap team. PW13 was also made part of the trap team. When complainant met PW13, he explained his grievances to PW13. At the same time, PW13 also went through the complaint given by the complainant and the FIR. He introduced complainant to both independent witnesses Page 19 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 and explained his complaint to them. Complaint was also explained to other members of trap team also at the same time. Both independent witnesses had asked certain questions to the complainant also, which were replied by complainant. These questions were in respect of his complaint. Insp. Raman Shukla handed over the memory card Q1 in a sealed brown envelope to PW13. PW13 took CBI seal from Sh. Shekhar Kumar, which was used in sealing envelope of Q1. He led trap and gave account of the same. After trap, they all came back to CBI office. He formally arrested both accused Animesh and Jitender, vide separate arrest cum personal search memos. He identified both accused during proceedings of the case. He identified his signature appearing at point Z2 on all the pages except last page of D-4 i.e. handing over memo (Ex.PW8/A), which was prepared by him in this case. He also identified his signature appearing at point Z3 on the last page of Ex.PW8/A. He identified his signature appearing at point Z2 on all the pages of D-5 i.e. recovery memo (Ex.PW8/B), which was prepared by him in this case.
He identified his signature appearing at point Z1 on both pages of D-6 i.e. search cum seizure memo (Ex.PW8/C), which was prepared by him in this case in MCD office. He also identified D-6A (Ex. A-3) as the same file, which was seized vide aforesaid memo.
He identified his signature appearing at point Z on D-7 i.e. site plan, which was prepared by Insp. Dharmender, in his presence.
He identified his signature appearing at point Z on both pages of D-8 i.e. arrest cum personal search memo of accused Animesh (Ex.A-4), which was prepared by him in this case. He identified his signature appearing at point Z on both pages of D-9 i.e. arrest cum personal search memo of accused Jitender Singh (Ex.A-5), which was prepared by him in this case.
Page 20 of 118 (Pulastya Pramachala)Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 He identified D-20 i.e. superdarinama of swift car (Ex.A-14), which was prepared by him in this case, while handing over keys of swift Car to Mr. Sant Kumar, which was signed by Mr. Sant Kumar and both independent witnesses. He identified his signature appearing at point Z-1 on the label pasted on bottles i.e. Ex.PW5/Article-1, Ex.PW5/Article-3, Ex.PW5/Article-4, Ex.PW5/Article-5.
He also identified his signature appearing at point Z on envelope Ex.PW8/Article-5.
He identified his signature appearing at point Z1 on envelope Ex.PW8/Article-3. A memory card endorsed as Q2 in its main cover was taken out from this envelope and PW13 identified his signature appearing on the main cover (Ex.PW8/ Article-
2) at point Z1. PW13 also identified his signature appearing on the plastic cover of the memory card (Ex.PW8/Article-1) at point Z1.
He identified his signature appearing at point Z1 on another envelope (Ex. PW8/Article-9). A memory card endorsed as S1 in its main cover was taken out from this envelope and PW13 identified his signature appearing on the main cover (Ex.PW8/Article-8) appearing at point Z1. PW13 also identified his signature appearing at point Z1 on the plastic cover of the memory card (Ex.PW8/Article-7). He identified his signature appearing at point Z on another envelope Ex.PW10/Article-5, which was taken out from parcel Ex.PW10/Article-4. A memory card endorsed as S2 in its main cover was taken out from this envelope and PW13 identified his signature appearing at point Z on the main cover (Ex.PW10/Article-6). He identified his signature appearing at point Z on the plastic cover of the memory card (Ex.PW10/Article-7).
He identified his signature appearing at point Y on the envelope Ex.PW8/ Article-4. Envelope was endorsed with DVR used in CO-48/18 and RC No. 38A/2018 DLI. Same was opened and a DVR was taken out. PW13 identified his signature appearing at point X on the back of said DVR.
Page 21 of 118 (Pulastya Pramachala)Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 PW14/Sh. During the year 2018, he was posted as Inspector, CBI ACB, Dharmendra CGO Complex, New Delhi. On 03.12.18, he joined the trap Kumar team under Insp. Sunil Kumar in this case as instructed by Singh his SP to him. Every member of trap team were introduced by TLO to each other.
He was witness to trap proceedings. He also gave account of pre trap and trap proceedings.
He identified his signature appearing at point Z3 on each page of Ex. PW8/A. He identified his signature appearing at points Z3 on each page and at point Z4 on the last page of Ex.PW8/B i.e. recovery memo.
He identified accused persons during proceedings of the case.
PW15/Insp. She was also posted in ACB, New Ex.PW15/A (D-13 i.e. Veer Jyoti Delhi. On 10.12.18, she was assigned seizure memo which further investigation in this case, on was prepared by the instructions of her SP. Insp. Sunil PW15); Kumar/TLO handed over case file of Ex.PW15/B this case to her on same day. On the (transcripts, which same day, she sent the hand washes was prepared by taken in this case, to CFSL, New Delhi PW15) for expert opinion regarding presence of phenolphthalein and other Ex.PW15/C(D-11 i.e. chemicals in the hand washes. forwarding letter Forwarding letter was signed by the dated 10.12.18 sent then SP. to Director CFSL, New Delhi) & She prepared transcript of recorded conversations on the basis of copy of Ex.PW15/D (D-12i.e. Q1 and Q2. These copies were the forwarding letter already prepared by TLO and were dated 17.12.18 sent handed over to her in the laptop itself. to Director CFSL, Thereafter, she sent Q1, Q2, S1 &S2 New Delhi). to CFSL, New Delhi for expert opinion on voice recorded in the specimen voices with comparison to voices in recorded conversations contained in Q1 & Q2.
Page 22 of 118 (Pulastya Pramachala)Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 These exhibits were also sent through forwarding letter of the SP. Thereafter, she obtained CDRs, CAFs and location chart in respect of two mobile numbers of complainant, which were used in this case, along with one mobile number each of accused Animesh and Jitender.
She also obtained documents from MCD regarding joining of accused Animesh and Jitender and seized them vide seizure memos. She mentioned the description of seized documents in the seizure memos. She identified her signature appearing at point X on Ex.A-7 (D-14) i.e. seizure memo, vide which she had seized joining and posting orders as well as salary slips for the month of November 2018, in respect of both accused persons.
She identified her signature appearing at point X on Ex.A-10 (D-15) i.e. seizure memo, vide which she had seized 15 office orders from MCD, which related to joining of both accused persons from time to time on the basis of contract and conferring power to issue challan under DMC Act. She identified her signature appearing at point X on Ex.A-13 (D-16) i.e. seizure memo, vide which she had seized certified copies of receipt of penalty of Rs. 2000/- deposited by Sh. Sunil Sehrawat against challan no. 84860 in the court of Ms. Neha Gupta, MM, North District, Delhi.
She recorded statement of verification officer, TLO, complainant, independent witnesses, trap team members, Sh. Mohan Singh, Public Health Inspector, Sh. Rajesh Rawat, Dy. Health Officer, MCD & Sh. Sant Ram.
She identified her signature appearing at point Y on D-13 i.e. the same memo which was prepared by her.
She identified her signature appearing at point Y on each page of transcripts, which was prepared by her. She received chemical examination report from CFSL, New Delhi alongwith exhibits. Exhibits were deposited in the malkhana. Report was taken on the record. A report was prepared by her and after approval from higher officer, same was sent to CVO, MCD for obtaining sanction for prosecution u/s 19 of the P.C. Act, against both accused Animesh and Page 23 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 Jitender, vide forwarding letter signed by SP. Subsequently, sanction was received for prosecution of both accused persons, from the office of Commissioner, MCD (North). Thereafter, she prepared the chargesheet and filed the same alongwith all the documents and records, as per relied documents, in the court.
She received report from CFSL regarding voice identification alongwith the exhibits. Exhibits were deposited in malkhana and the report was filed in the court. At the relevant time, Sh. V.M. Mittal was the SP, ACB, New Delhi. She identified signature of Sh. V.M. Mittal at points X on second and third page of D-11 i.e. forwarding letter dated 10.12.18 sent to Director CFSL, New Delhi. She identified his signature as she had seen his signature in routine manner during her official duties. Vide this letter, handwashes were sent to CFSL, New Delhi.
She also identified signature of Sh. V.M. Mittal at points X on third and fourth page of D-12 i.e. the forwarding letter dated 17.12.18 sent to Director CFSL, New Delhi. Vide this letter, memory cards were sent to CFSL, New Delhi, for voice identification.
7. Accused had admitted some of the documents under Section 294 Cr.P.C, hence, formal proof of the same were dispensed with. Both accused persons were examined under Section 313 Cr.P.C. PLEA OF ACCUSED ANIMESH UNDER SECTION 313 CR.P.C.
8. Accused Animesh took plea that he is innocent and has been falsely implicated in the present case. He further took plea that neither complainant nor any witness had visited CBI office to identify their alleged voices or conversations. He further took plea that all the reports as well as sanction were allegedly taken against them under pressure of CBI. Accused Animesh opted to lead evidence in his Page 24 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 defence and examined Sh. Ravi Kumar as DW1/A1. PLEA OF ACCUSED JITENDER UNDER SECTION 313 CR.P.C.
9. Accused Jitender took plea that he is innocent and he did not demand or accept any bribe as alleged by prosecution. He further took plea that CBI officials falsely apprehended him and his relative namely Sant Ram and took them to CBI office and present case was planted upon him. He further took plea that no DVR or memory card was seen by them and that alleged bribe money was planted by CBI officers. He further took plea that complainant lodged a false complaint thereby accusing him in the same. He further took plea that all the reports and exhibits were prepared falsely to implicate him in this case. Accused Jitender did not opt to lead defence evidence. DEFENCE EVIDENCE
10.Accused Animesh Kumar (A1) opted to lead evidence in his defence and examined Sh. Ravi Kumar as DW1/A1. This witness deposed that he was mechanic of scooty. In the evening time of 03-12-2018, he was called by Animesh in the parking of MCD office. He was there when some persons claiming to be from CBI came there and took away Animesh and two more persons. There was no demand of bribe by anyone and Animesh did not take money from anyone. ARGUMENTS ON BEHALF OF CBI: -
11.Written arguments were filed by ld. PP and he made arguments on the line of the same. In his written arguments, ld. Sr. PP for CBI mentioned that there are sufficient evidence against the accused persons in respect of demand, acceptance and recovery from them, Page 25 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 to prove the case of prosecution, in light of the deposition of PWs from PW1 to PW-15. Ld. Sr. PP further mentioned that complainant Sh. Sunil Sehrawat has proved the contents of the complaint dated 03.12.2018 during proceedings of this case. Complainant identified voice of accused Jitender and Animesh Kumar, while playing the memory card marked as Q-1 and Q-2 on 03.09.2019. Ld. Sr. PP also mentioned that demand and acceptance of bribe amount are established. He further mentioned that PW11/Sh. Shekhar Kumar and PW8/Mohd. Shahid are public witnesses in the present case, who also proved the proceeding of pre trap and post trap as well as recovery of bribe amount. He also mentioned that PW9/Sh. Raman Shukla (Verification Officer) verified the demand in the presence of independent witnesses. Ld. Sr. PP further mentioned in his written arguments that accused Animesh Kumar had issued challan against the water plant of complainant and allowed to run it unauthorizedly after accepting the bribe amount of Rs.8000/-. He further mentioned that there are sufficient evidence to convict both the accused persons under Section 120-B IPC and Section 7 & 7A of the PC Act, 1988 (as amended in 2018).
12.Ld. Sr. PP for CBI relied upon certain judgments in support of his arguments, which are as follows: -
(a) State v. Saravanan & Ors. 2009 AIR (SC) 152.
(b) Gura Singh v. State of Rajasthan, (2001) AIR (SC) 330.
(c) Madhukar Bhaskarrao Joshi v. State of Maharashtra, 2000 AIR SCW 4018.
(d) State v. A. Parthiban, 2004 AIR SCW 2480.Page 26 of 118 (Pulastya Pramachala)
Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 ARGUMENTS ON BEHALF OF ACCUSED ANIMESH (A1): -
13.Written arguments were filed by ld. defence counsel as well and he also made arguments on the line of the same. In his written arguments, ld. counsel for accused Animesh Kumar (A1) mentioned that prosecution has failed to inspire confidence. According to him, particularly the kind of omission and contradictions came on the record, they have put a cloud on the credibility of the witnesses and the evidences adduced by the CBI. He further mentioned that prosecution has miserably failed to bring home the alleged guilt of the accused and he deserves a clean acquittal.
14.In respect of allegation of demand, ld. counsel for accused Animesh (A1) mentioned that Animesh had neither met complainant on 29.11.2018, nor had any telephonic talk with him either on 29.11.2018 or during the period 29.11.2018 to 03.12.2018. Ld. counsel further mentioned that from the collective reading of complaint and the testimony of PW15/Insp. Veer Jyoti, it has become crystal clear that there was no demand on the part of Animesh, prior to 29.11.2018. He further mentioned that testimony of PW11/Sh. Sunil Sehrawat, specifically demolished the case of prosecution against accused Animesh for making any kind of demand from the complainant or receiving any money from him. Even CDR does not reflect a single conversation taken place between Animesh and complainant between 29.11.2018 to 03.12.2018.
15.In respect of veracity of verification memo, ld. counsel for accused Page 27 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 Animesh (A1) mentioned that it is improbable for PW12/Sh. Shekhar Kumar to be present during verification proceeding, because his department was informed by CBI through letter and subsequently he had come to CBI office. Ld. counsel further mentioned that at the time of recording verification memo, neither Insp. Raman Shukla, nor the independent witness PW12/Sh. Shekhar Kumar was present there and no verification memo was signed by this witness.
16.In respect of handing over memo, ld. counsel mentioned that no seal was handed over by PW12 to TLO or any exhibits i.e. Q-1 or DVR was handed over by Raman Shukla to TLO, as claimed by CBI. Ld. counsel further mentioned that Mr. Shahid (PW8) kept the note in the pocket of complainant during handing over proceeding. The alleged recovered notes were different in denomination from the ones, which were handed over by complainant to CBI. Ld. counsel further mentioned that from the testimony of PW11, the presence of molecules of phenolphthalein powder in his hand has been established, which makes a dent on the preparation of handing over memo. He further mentioned that DVR with inserted memory card was kept in the shirt pocket of complainant in CBI office itself. Witnesses have given various contradictory versions with respect to the proceedings mentioned in the handing over memo i.e. denomination of notes, the person who had given demonstration, the person who had put the currency notes, the place where same were kept in the person of complainant, when the currency notes were handed over to the CBI officials, search of the complainant and Page 28 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 preparation of handing over memo, which totally demolish the story of the prosecution and reflect that no such proceedings as mentioned in the handing over memo had ever taken place and the said memo has been prepared at a later time after the raid.
17.In respect of recovery memo, ld. counsel for accused Animesh (A1) mentioned that on the contrary to PW9/Raman Kumar Shukla, Insp. Dharmender and TLO claimed that Insp. Sunil had taken back the DVR from complainant and switched it off. He further mentioned that testimony of PW12 reflects that PW12 was not the part of any proceeding and he just signed on the memos and exhibits at the instance of CBI at one go. Ld. counsel further mentioned that there are contrary characteristics of the proceedings of handwash, because when the hand of accused Animesh was dipped in Sodium Carbonate solution initially, it gave dark red colour and thereafter changed its colour to pink/light pink within a minute or two, which established that no such proceedings had taken place before this witness. Ld. counsel further mentioned that while running towards complainant at MCD office, PW13 made telephonic call to Insp. Dharmender and told him about bribe transaction being over, whereas Insp. Dharmender did not claim so. Ld. counsel for A1 further mentioned that PW13 deposed that he had taken back DVR from complainant at the moment PW13 took out Jitender from the car and PW13 switched it off. However, earlier it was claimed that Shukla Ji had taken back the DVR. Ld. counsel further mentioned that as per recovery memo, it was concluded at 7.20 AM, whereas, the MLC of accused reflects Page 29 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 that accused reached the hospital around 8.15 AM. PW13 deposed that the first call was received immediately after leaving CBI building but before taking seat in the vehicle, whereas PW8/Mohd. Shahid, PW12/Sh. Shekhar and complainant deposed contrary to testimony of PW13 and they did not testify about this call. Ld. counsel further mentioned that TLO was the person who was supervising the raid proceedings and the kind of testimony he had given with respect to taking hand washes at the spot, creates serious doubt on its preparation at the spot. Ld. counsel further mentioned that there is contradiction between the testimony of PW14/Insp. Dharmender and TLO regarding any signal or call given by complainant at the time of apprehension of accused Jitender. Ld. counsel further mentioned that solution of Water and Sodium Carbonate was prepared on the ground, which is contrary to the testimony of complainant and TLO.
18.In respect of seal, ld. counsel for accused Animesh (A1) mentioned in his written arguments that the report filed by PW10 and the forwarding letter reflect that there was another seal bearing no.45/2018, which was used in this case.
19.Ld. counsel for accused Animesh (A1) also filed crux of the submissions along with written arguments, wherein he mentioned that the complaint filed by the complainant has been totally demolished on each and every aspects. Ld. counsel further mentioned that no question of giving/handing over any money to the accused Animesh arises on 29.11.2018, as the complainant had specifically denied that he met Animesh on 29.11.2018. The CDR Page 30 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 also reflects that no conversation between complainant and Animesh had taken place between 29.11.2018 to 03.12.2018, prior to complainants reaching the CBI office. Ld. counsel further mentioned that there was no valid reason for complainant to file the complaint against Animesh Kumar, on the contrary, it has come on record that Animesh Kumar got closed water plant of complainant in the month of August 2018 and therefore, he held grudges against Animesh Kumar. Ld. counsel further mentioned that in the evidence led by prosecution, it has become crystal clear that CBI has played fraud by misusing the seal, as two seals were found to be used in this case i.e. 83 & 45. Ld. counsel further mentioned that neither the malkhana incharge nor the malkhana receipts have been produced before this court to show the sanctity of the seal and exhibits. The kind of testimony having been given by Shekhar Kumar and TLO also create serious doubt that the seal was ever handed over to the independent witness. Ld. counsel further mentioned in respect of Q1 and Q2 that testimonies of the witnesses namely Shahid, Shekhar and complainant create serious doubt as to at what place and point, manner or in whose presence it was recorded or with regard to blankness of the memory card or absence of the other voices, or length of the conversation or regarding the presence of the conversation which was never recorded as per the testimony of Shekhar Kumar and the complainant. Ld. counsel for A1 further mentioned that CBI recorded statements of witnesses under Section 161 Cr.P.C in respect of recovery memo and in his testimony, TLO Page 31 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 claimed that the specimen voice of accused in S1 and S2 contained every line thrice, but the memory card is totally contrary to that. He further mentioned that no specimen voice memo was prepared or timing of preparing the same was not mentioned anywhere, which creates serious doubt on its sanctity and gives strength to the defence version. Ld. counsel further mentioned that the deliberate act on the part of CBI to conceal true factum of events took place at the spot, particularly in respect of sitting of complainant with accused Jitender and Sant Ram in the car for about 5 minutes and presence of others creates heavy dent on the credibility of the CBI. He further mentioned that contradictory statements made by TLO, verifying officer and Dharmender Kumar about making call by TLO to Dharmender after receiving missed call from the complainant, about taking back of the DVR from the complainant, show falsity of the trap. Ld. counsel for accused A1 further mentioned that there are contradiction in the testimony of TLO, Insp. Dharmender Kumar and the complainant, particularly in respect of preparation of hand washes, the place of the preparation of hand washes and the kind of utensils used in the process. Ld. counsel further mentioned that the manner of tallying the notes demolishes the entire case of recovery. Ld. counsel further mentioned that testimony of IO/Insp. Veer Jyoti reflects that she did not make any inquiry or investigation in the present case and simply filed the chargesheet before the court as was assigned to her.
20.Ld. counsel for accused Animesh (A1) relied upon certain judgments Page 32 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 in support of his arguments, which are as follows: -
(a)Smt. Meena v. State of Maharashtra, AIR 2000 SC 337.
(b)G.V. Nanjundiah v. State, AIR 1987 SC 2402.
(c)Ramesh Thete v. State of M.P. 2020 Crl.L.J 2300.
(d)Bnarasi Das v. State, AIR 2010 SC 1589.
(e)Hem Chander v. State of Delhi, Crl.A.9/20003.
(f) M.K. Harshan v. State of Kerala, AIR 1995 SC 2178.
(g)Suraj Mal v. State, AIR 1979 SC 1408.
(h)Vishal Chand Jain v. CBI, Crl. A. No.579/2005.
ARGUMENTS ON BEHALF OF ACCUSED JITENDER(A2) : -
21.Written arguments were filed by ld. counsel for this accused also and he also made arguments on the line of the same. In his written arguments, ld. counsel for accused Jitender (A2) mentioned that prosecution has miserably failed to prove that there was any demand by A2 from the complainant. He further mentioned that neither PW11, nor any other witnesses have deposed anything about demand being made by A2. He further mentioned that neither complainant nor independent witnesses have supported the case of prosecution. Ld. counsel for A2 further mentioned that PW11 was not known to A2 prior to 03.12.2018 and this fact has been admitted by PW8, PW11 and PW12. Even, PW11 did not support the case of prosecution. Ld. counsel further mentioned that prosecution has failed to show any evidence which could suggest that A2 had ever made any demand from complainant at any point of time.
22.In respect of acceptance, ld. counsel for A2 mentioned in his written arguments that there are no traces of evidence even remotely, which could suggest that A2 had accepted any money from complainant at Page 33 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 any point of time, as it was never deposed by PW11 in his testimony. Even testimony of PW14 did not make it clear as to whom something was handed over by complainant.
23.In respect of recovery, ld. counsel for A2 mentioned in his written arguments that no recovery has been effected either from the person of A2 or at his instance, in the present matter. Ld. counsel further mentioned that there exist serious discrepancies in deposition of witnesses in respect of alleged hand washes of the persons at spot. Mere presence of phenolphthalein powder is not a conclusive proof about the acceptance of bribe amount by A2. Ld. counsel further mentioned that PW8, PW11 and PW12 have deposed contrary to each other about procedure being adopted for taking alleged hand washes of the person caught hold there. PW13 has not properly deposed about proceeding of the hand washes and pasting of slips/labels over the bottles. PW11 had not supported the case of prosecution and deposed about use of Jar for the hand washes, instead of use of bottles. Ld. counsel further mentioned that there was nothing in recovery memo to show that as to how it was conducted and who had conducted the same. Ld. counsel further mentioned that benefit must be given to accused.
24.In respect of conspiracy, ld. counsel for A2 mentioned that neither there is any evidence of meeting of mind, nor any act on the part of A2 to do any illegal act of demand of money. Ld. counsel further mentioned that there was no occasion for A2 to demand money from PW11, because PW11 was not known to A2. Ld. counsel further Page 34 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 mentioned that an offence of conspiracy cannot be deemed to have been established, merely on the basis of suspicion, surmises or inferences, which are not supported by cogent and acceptable evidence. Ld. counsel further mentioned that conspiracy has to be proved by placing substantive evidence and CBI has not adduced any evidence in this respect.
25.In respect of voice identification and custody of exhibits, ld. counsel for A2 mentioned in his written arguments that CFSL had wrongly matched the voice from S2, being voice of A2 at the instance of IO, though, S2 contained voice of A1. He further mentioned that the deposition of PW9 in respect of voice contained in S1 belonging to Animesh (A1) and S2 of Jitender (A2), is patently wrong and contrary to the recovery memo. Ld. counsel for A2 further mentioned that though in the prosecution evidence, it has come on record that during the entire proceedings conducted by CBI in this case, only one CBI seal was used, however, evidence led by CBI itself contradicts this fact and it emerges that two seals i.e. 83/2018 and 45/2018 were used by CBI for sending the exhibits to CFSL, which specifically indicates towards manipulation conducted by CBI, in order to fabricate the exhibits and falsely rope in the accused persons.
26.He further mentioned that there were no mixing of voices in S1 and S2 other than accused person, which is contrary to legal pronouncements and same is against the requirements of law. Ld. counsel further mentioned that PW10 had not given conclusive report about identification. He further mentioned that the report of CFSL is Page 35 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 suggestive in nature, which is only corroborative in nature. He further mentioned that no certificate under Section 65-B of Indian Evidence Act in respect of exhibits as well as transcripts was tendered by the prosecution, which is primary requirement to prove such exhibits or transcripts on record. Ld. counsel for A2 further mentioned in his written arguments that PW9 and PW13 had deposed contrary to one another about possession of DVR at the parking area of MCD. He further mentioned that in view of above, prosecution has failed to prove its case against A2 and hence, A2 be acquitted of charges leveled against him.
27.Ld. counsel for accused Jitender (A2) relied upon certain judgments in support of his arguments, which are as follows: -
(a)Dashrath Singh Chauhan v. CBI, 2019 CRI. L. J. 919.
(b)Vikram Singh v. CBI, 2018 (2) JCC 724.
(c)Mukhtiar Singh (since deceased) (through his legal representative) v. State of Punjab, (2017) 8 SCC 136.
(d)Sevaraj v. State of Karnataka, (2015) 10 SCC 230.
(e)P. Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh & Anr. (2015) 10 SCC 152.
(f) C.M. Girish Babu v. CBI, Cochin, High Court of Kerala, (2009) 3 SCC 779.
(g)B. Jayaraj v. State of Andhra Pradesh, (2014) 13 SCC 55.
(h)P. Parasurami Reddy v. State of Andhra Pradesh, (2011) 12 SCC 294.
(i) Sadashiv Mahadeo Yavaluje & Gajanan Shripatrao Salokhe v. State of Maharashtra, 1990 SCC (Cri) 104.
(j) Baliya Allias Bal Kishan v. Madhya Pradesh, (2012) 9 SCC 696.
APPRECIATION OF EVIDENCE AS WELL AS ARGUMENTS AND FINDINGS :-
Page 36 of 118 (Pulastya Pramachala)Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018
28.Before I look into the evidence of the case, it is appropriate to refer to the ingredients of alleged offences.
Ingredients of Section 7
29.The ingredients of offence defined under Section 7 of the Act can be summarized in the following manner :-
1.1 The accused must be working as public servant.
1.2 The accused obtains or accepts or attempts to obtain an undue advantage from the other person directly or through a third party.
1.3 The undue advantage is accepted or obtained or attempted to be obtained, 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 1.4 The undue advantage is accepted or obtained or attempted to be obtained, 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 1.5 The accused 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 directly or through a third party.
Ingredients of Section 7A
30.The ingredients of offence defined under Section 7A of the Act can be summarized in following manner :-
1.1. The accused accepts or obtains or attempts to obtain from another person any undue advantage, either for himself or for any Page 37 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 other person.
1.2. The undue advantage is accepted or obtained or attempted to be obtained as a motive or reward to induce a public servant.
1.3.Such inducement is to be caused by corrupt or illegal means;
or by exercise of his personal influence.
1.4 Public servant is to be induced to perform or to cause performance of a public duty improperly or dishonestly or to forbear or to cause to forbear such public duty by the accused public servant or by another public servant.
Ingredients of Section 120B IPC
31.The ingredients of offence defined under Section 120 B IPC were explained by Supreme Court in Lennart Schussler v. Director of Enforcement, (1970) 1 SCC 152 in following manner:-
"9. It now remains to be seen whether the alleged agreement which A-1 and A-2 arrived at in Stockholm in 1963 and again in Madras in 1965, would, if established, amount to a criminal conspiracy. The first of the offence defined in Section 120-A of the Penal Code which is itself punishable as a substantive offence is the very agreement between two or more persons to do or cause to be done an illegal act or a legal act by illegal means subject however to the proviso that where the agreement is not an agreement to commit an offence the agreement does not amount to a conspiracy unless it is followed up by an overt act done by one or more persons in pursuance of such an agreement. There must be a meeting of minds in the doing of the illegal act or the doing of a legal act by illegal means. If in the furtherance of the conspiracy certain persons are induced to do an unlawful act without the knowledge of the conspiracy or the plot they cannot be held to be conspirators, though they may be guilty of an Page 38 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 offence pertaining to the specific unlawful act. The offence of conspiracy is complete when two or more conspirators have agreed to do or cause to be done an act which is itself an offence, in which case no overt act need be established. It is also clear that an agreement to do an illegal act which amounts to a conspiracy will continue as long as the members of the conspiracy remain in agreement and as long as they are acting in accord and in furtherance of the object for which they entered into the agreement."
DEMAND
32.In respect of demand, the foremost witness of CBI was the complainant/PW11. As per relevant part of testimony of PW11, he was running the business of water plant in the name of Shri Bhagwan Water Plant from plot no.6, Village Singhu, Delhi. Somewhere in the year 2018, he received challan from MCD office at Narela in respect of his water plant and he deposited fine of Rs.2000/- in Rohini Court. Thereafter, once again he received another challan in respect of his water plant. Accused Animesh had visited his plant in his absence and thereafter, he met him in his office at Narela, MCD office in the same month, i.e. around 10 days prior to 08.09.2018. PW11 was asked to close his water plant. PW11 requested that it was a source of bread for him and thereafter, Animesh assured him to look into the matter. Subsequently, someone again visited his plant in absence of PW11 and asked to close it. PW11 closed his water plant, took its photographs and filed the photographs with his affidavit in MCD office, which were handed over to Animesh. PW11 again requested Page 39 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 Animesh to look into the matter and thereafter, on the basis of oral permission of Animesh he shifted his machineries in another plot and started running water plant. He again had talk with Animesh at his office, when Animesh talked to him and asked him to understand the things in order to run the plant and thereafter, there used to be telephonic talk between them. During such telephonic talk, Animesh asked PW11 as to what was to be done with his file and finally Animesh told him to do something handsome and then PW11 would not have any problem. PW11 had been asking as to what was to be done by him and Animesh had been telling him to understand the things. When PW11 told Animesh that he had Rs.2000-3000/-, then Animesh told PW11 that it could not be sufficient. Finally, PW11 told Animesh that at the most he could pay Rs.8000-10,000/- and then Animesh asked PW11 to meet him. PW11 met Animesh next day at Lampur Morh and gave Rs.8000/- to Animesh. Animesh objected about the amount saying that PW11 had assured for Rs.10,000/- and PW11 assured him to pay remaining amount of Rs.2000 later on. After one week or 10 days, someone again visited water plant of PW11 in his absence and raised objection against running the same. After coming to know about this, PW11 once again made telephonic call to Animesh and told him that he had already made payment, still someone had visited his plant and was raising objection. Animesh told PW11 that he was already transferred from that area and someone else had come in his place. Animesh asked PW11 to talk to the new officer. However, PW11 requested Animesh to talk to the Page 40 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 new officer as he had already made the payment. Animesh assured PW11 to talk to new officer. After 1-2 days, PW11 again made telephonic call to Animesh to know if Animesh had talked to the new officer. Animesh advised PW11 to meet the new officer and assured that the new officer would take care of him. PW11 did not want to pay again and he had the hunch feeling that once more demand would be made. Therefore, he kept deferring meeting the new Inspector for about 10-15 days. Animesh had given him the number of his successor Jitender and had asked PW11 to talk to Jitender on that mobile phone. PW11 talked to Jitender on his given mobile number and Jitender told PW11 that he could meet him at his office.
33.PW11 added in his testimony that Animesh or Jitender had not asked him specifically to make any payment to Jitender. Thereafter, someone from MCD office again visited water plant of PW11 in his absence and wife of PW11 was asked to close the plant. A challan was also handed over to her. PW11 was informed about the same and he again made telephonic call to Animesh. PW11 informed Animesh about such development and Animesh told him to talk to Jitender. PW11 talked to Jitender and he told PW11 that he could meet him at the office and then Jitender would look into the same. During telephonic talk with Animesh, PW11 had asked him to get this matter resolved and Animesh had told him that PW11 would have to oblige his successor in handsome manner i.e. to pay him the same amount, which was paid to Animesh. Such talk had taken place with Animesh at about 10-11 am and thereafter, PW11 went to CBI office Page 41 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 to make his complaint, as per advise given to him by a person namely Dharmender.
34.The aforesaid part of testimony of PW11 relates to demand made prior to complaint made with CBI. PW11 made his written complaint in CBI, which was given to Mr. Raman Shukla. PW11 had met Raman Shukla, who enquired about the whole matter and asked him to give his complaint. PW11 was also helped by Mr. Shukla to prepare his complaint by way of making corrections. Thereafter, he was taken to another chamber and two other officers made inquiries from complainant. One recording machine was brought there. 3-4 more persons had also come there. One new chip was taken out from its packet and was put in that machine. PW11 had told those officers about receiving missed call from Animesh or Jitender and he was asked to make call either to Animesh or to Jitender. PW11 could not recollect as to whom he was asked to make a call. His mobile phone was put on speaker mode and his conversation was recorded in the aforesaid machine. PW11 made two calls, one to Animesh and another to Jitender, but he could not tell as to which calls were recorded. In his conversation with Jitender, Jitender had asked PW11 about the time by which he would be coming to Jitender and PW11 had given him time of 3-4 pm. In his conversation with Animesh, Animesh had asked PW11 to meet Jitender and PW11 told Animesh that without him how could he meet Jitender or talk to Jitender, as he did not know him. Animesh had assured PW11 to look for the possibility if he could stay back in the office.
Page 42 of 118 (Pulastya Pramachala)Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018
35.PW11 proved his complaint as Ex.PW11/A. PW11 again gave description of his talks with Animesh and Jitender. In his conversation with Animesh, PW11 told him that he had around 6000-7000/- with him and he would have to take remaining amount from his home and he had given him time of 3-4 pm to reach the office. In his conversation with Jitender, PW11 had told him that he had only 5000- 6000/- and for remaining amount he had to go his home, which may take some time. Jitender told PW11 that PW11 could meet him next day as well, but PW11 insisted to meet him same day and then Jitender told him that PW11 should make call to him, whenever he reached his office. PW11 had also told Animesh during his conversation with him that he could not pay more than Rs.10,000/- and that PW11 would also pay Animesh remaining amount of Rs.2000/-. Animesh had told PW11 that he need not pay him remaining amount of Rs.2000/- and PW11 had to pay Jitender only and Jitender would take care. Conversations of PW11 with Animesh and Jitender were being heard by other persons present there and only after hearing such conversation, they took decision to go along with PW11. All those persons were from CBI and there was no person from outside of CBI.
36.The last alleged instance of demand took place during trap and as per testimony of PW11, he went inside the MCD office into the parking area, as per the place fixed for meeting by Animesh. He was already given instructions by TLO. In the parking area, Animesh was standing and was having conversation with someone. They were Page 43 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 around 4-5 persons. PW11 went to Animesh and shook hand with him and Animesh kept talking with others. PW11 had conversation with Animesh and Animesh told him not to worry. PW11 told Animesh that he had already paid once and he could not pay money again and again. Some talk took place involving 2-3 persons also and the crux of the talk was that PW11 should take care of them and they would take care of PW11. Animesh told PW11 to hand over the money and to go. When PW11 took out the money, Animesh asked PW11 to hand it over to a person standing beside him. Though, PW11 did not know that person. Hence, PW11 told Animesh that he would hand over the money to Animesh only. Animesh had also told PW11 that PW11 need not make payment of remaining Rs.2000/- to Animesh and he had to pay for his successor only.
37.Apart from above mentioned testimony of PW11, CBI has also relied upon the testimony of verification officer i.e. Insp. Raman Kumar Shukla/PW9 and independent witness namely Sh. Shekhar Kumar/ PW12. As per case of CBI, these two persons were present during verification proceedings, when PW11 had telephonic conversations with Animesh and Jitender.
38.As per relevant part of testimony of PW9, his SP assigned the complaint of PW11 to him for verification. Complainant was introduced to him by SP, ACB, CBI. PW9 came to his chamber along with PW11 and read the complaint. He made inquiry from PW11 about the complaint and asked duty officer to arrange one independent witness. Mr. Shekhar Kumar/PW12 was sent to PW9.
Page 44 of 118 (Pulastya Pramachala)Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 PW9 introduced PW11/complainant to PW12/Sh. Shekhar Kumar. PW12 was told about grievances of complainant. PW12 also read the complaint. PW11 informed PW9 that both accused used to talk to him on telephone. PW9 arranged one DVR and a new memory card from the care taker. He took out the memory card from the packet in the presence of PW12. Blankness of DVR and memory card was checked and after ensuring the same, introductory voice of PW12 was recorded in that memory card using the DVR. PW11 was asked to make call to Animesh. Mobile phone of PW11 was kept on speaker mode. His conversation with other person i.e. Animesh was recorded in that memory card. In this conversation, Animesh asked PW11 to pay Rs.10,000/- to Jitender. Thereafter, PW9 asked PW11 to make call to Jitender on his mobile phone. This call was picked by other persons i.e. Jitender and this conversation was also recorded in the same memory card. In this conversation, Jitender agreed to accept Rs.10,000/- for not sealing the water plant of PW11 and he asked PW11 to come at MCD office, Narela with Rs.10,000/- at 5 pm on same day. Thereafter, PW9 asked PW11 to make call to Animesh, so as to inform him about aforesaid conversation with Jitender. PW11 again made call to Animesh and this conversation was also recorded in the same memory card. In this conversation, PW11 asked Animesh to persuade Jitender to lower down the amount of bribe and Animesh assured PW11 to be present there and to ask Jitender to lower down the amount.
39.PW9 was satisfied about demand of bribe from aforesaid Page 45 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 conversations and accordingly, he prepared his verification report i.e. Ex.PW9/A and recommended for registration of FIR. This memo was signed by PW11 and PW12 as well.
40.The next witness is PW12/Sh. Shekhar Kumar. As per testimony of PW12/Sh. Shekhar Kumar, on 03.12.2018, manager (administration) of his bank asked him to report at CBI office for secret duty on same day and he reached office at 1 pm. He met Mr. Shukla Sir (PW9), who took him to a room, wherein complainant/PW11 was already sitting. PW12 was informed about demand of bribe being made from complainant and that they had to verify his complaint. PW9 brought a DVR and a new memory card. It was shown to PW12 that there was no memory card in that DVR and thereafter, said DVR was played to show its blankness. Thereafter, new memory card was inserted in DVR and voice of PW12 was recorded therein. It was informed by PW9 that call would be made to those who demanded bribe and such conversation shall be recorded in that memory card. At the instance of PW9, PW11 made call, but in the first attempt call could not be connected. The call was connected in the second attempt. Phone was kept on loud speaker mode and conversation of complainant with other person was recorded. The conversation was in Haryanvi tone and PW12 could grasp some part of conversation only. As per this conversation, PW11 was talking like he had already talked to the other person (Animesh) in past in respect of a file and PW11 was asking that person to get cleared his file. The other person told PW11 that he did not have the file as a new Inspector had come and the file Page 46 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 was with him. PW11 told that person that PW11 did not know the new person, therefore, how could he talk to him. PW11 asked the other person to get this work done through other inspector and to introduce PW11 to that Inspector. The other person had told PW11 to talk to new inspector as that person did not know much about this matter. PW11 referred to some payment already made by PW11 to the other person. PW11 further told that other person that PW11 was a poor person and how could he manage the money again. The other person told PW11 that he would have to arrange the affairs from the new inspector.
41.Thereafter, PW11 made call to the new inspector namely Jitender, while keeping his mobile phone on speaker mode. In their conversation, Jitender had told PW11 that he was not available in the office at that time. PW11 made request to new inspector to get his work done and then Jitender asked PW11 to come at Narela Office of MCD at about 5 p.m. on same day. PW11 had talk with Jitender also in respect of amount of Rs.10,000/-. This conversation was also recorded in memory card. Thereafter, PW11 told them that PW11 did not know Jitender and hence, how could PW11 identify him. PW11 further told them that till now PW11 had been talking to Animesh only. Mr. Shukla told PW11 to again make a call to Animesh and tell Animesh about the time given by Jitender.
42.Thereafter, PW11 again made call to Animesh in same fashion. PW11 told Animesh about his talk held with Jitender. PW11 further told Animesh that Jitender had called PW11 on same day at 5 p.m. in Page 47 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 Narela Office. PW11 had further talked to Animesh about money matter and had referred to amount of Rs.10,000/-. Animesh had assured PW11 that his work would be done and PW11 asked Animesh to talk to new inspector.
43.Now, I shall refer to the relevant part of testimony of these witnesses during their cross-examination either by prosecutor or defence counsel. PW11 in his cross-examination by ld. PP admitted the suggestion that he had narrated all his grievances in his complaint Ex.PW11/A. He further stated that he was taken to SP by Insp. Raman Shukla and he denied the suggestion that he had made complaint to SP, ACB. He admitted the suggestion that Insp. Raman Shukla had called a public witness from the bank, but he could not recollect his name. He further admitted that all the telephonic calls made by him to Animesh and Jitender from CBI office, were done while keeping the mobile phone on speaker mode and all those conversations were recorded in the recording machine. He also admitted that after recordings, the chip was taken out from that machine and thereafter, he had signed over packet of that chip and that the said chip in its cover was put in an envelope, which was sealed by CBI officer. He signed over that envelope as well. He had identified his signature on identification memo as well. During his cross-examination by defence counsels, on the basis of going through the challan, he stated that challan was issued to him on 19.02.2018. He also identified his affidavit dated 31.08.2018 in the file Ex. A3, which was handed over to Animesh. He further stated that Page 48 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 he did not meet Animesh on 29.11.2018, rather he had telephonic talk with him on that day. He further stated that he did not mention about his telephonic talk with Animesh on 03.12.2018 at about 10-11 am, in his complaint Ex.PW11/A, because it would not have remained in his conscious. He denied the suggestion that he did not have such telephonic talk with Animesh. He could not remember the day and month, when amount of Rs.8000/- was paid to Animesh at Lampur Morh. In respect of happenings at parking area of MCD office, Narela, PW11 further deposed that he had talked to Animesh for about 1/2-1 minutes and thereafter, Animesh introduced him to Jitender. He could not remember, if he was introduced to a person namely Ravi by Animesh. He was very nervous at that time and hence, he was not aware of other persons. He denied the suggestion that he also took seat in Maruti car for about 5 minutes along with Jitender and Sant Ram. He denied the suggestion that he did not hand over amount to Animesh or that Animesh did not demand any amount from him or that even in the past Animesh did not ask him to hand over any amount to Jitender. Subsequently, PW11 deposed that he did not remember, if he had any talk with Animesh on 03.12.2018 prior to making complaint to CBI or if he did not have any telephonic talk with Animesh between 29.11.2018 to 03.12.2018. PW11 after hearing the recorded conversations played from memory card Q1 and Q2, had identified different audio files containing his telephonic talk with accused Animesh or Jitender and he denied the suggestion of defence that he had falsely identified these recordings before the Page 49 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 court. He further deposed that he met Jitender for the first time on the day of raid. He further deposed that he did have telephonic talk with Jitender before making complaint to CBI, but Jitender had not demanded money directly from him and the allegation of demand of money by Jitender as mentioned in his complaint Ex.PW11/A was exaggerated allegation, which was so added there on the advise of CBI officers. However, at the same time he also deposed that whatever conversation had taken place between him and the accused persons, the contents of his conversation/dialogue was not being prompted or supplied by CBI officers. He had conversation with Animesh and Jitender during raid in MCD office and at that time other persons present there were having conversations among themselves, but he was not able to hear the other persons.
44.PW12 also took stand that after recording of telephonic conversations (during verification proceedings) the cover of memory card was signed at the same time and envelope of the same was also sealed in his presence. PW9 deposed that the cutting/ overwriting in the complaint was already existing and denied the suggestion that he had dictated the complaint to the complainant. He admitted that he did not verify as to when Jitender asked money from complainant. He had handed over copy of contents of memory card to TLO in a pen drive and this copy was taken by him in his laptop.
45.In respect of complaint and demand, following part of testimony of several witnesses were pointed out by defence counsel, so as to highlight the contradictions appearing in prosecution evidence:-
Page 50 of 118 (Pulastya Pramachala)Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 "PW15/Insp. Veer Jyoti - I had asked complainant about the first demand being made by accused from him and he had told me that such demand was firstly made on 29.11.18.
PW11/Sh. Sunil Sehrawat - I do not have any idea of time of visit of Animesh Kumar at my plant on 29.11.18, because, I was not present at the plant and it was so informed to me by my worker. I had not met Animesh on 29.11.18. Vol. I had telephonic talk with him on that day.
..........I would have gone to him around 10 days prior to 08.09.18. He asked me to close my water plant, stating that it was unauthorised .........Thereafter, I closed my water plant, took its photographs and filed those photographs with my affidavit in MCD office....... Thus, our talk was going on in indirect manner as neither I was speaking openly about anything nor he was speaking......
Then I met him next day at Lampur Mode, fixed by him. I gave him Rs. 8000/- and he asked me as to how much was it.......
After one week or 10 days, once again someone visited my water plant in my absence and raised objection........I once again made telephonic call to Animesh Sir......... He asked me to talk to the new officer......
After 1-2 days once again I made telephonic call to Animesh Sir to ask if he had talked to the new officer......I kept on deferring my meeting with new inspector........I had accordingly, gained time for around 10-15 days......I had talked to Jitender on the given mobile number and he had told me that I could meet him at his office........
Thereafter, someone from MCD again visited my water plant in my absence.....They had again asked my wife to Page 51 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 close the plant and had handed over challan....Such talk was held at about 10-11.00 a.m.........
Thereafter, I went to CBI office near Nehru Stadium to make my complaint.......
Lampur Mod is at a distance of about 10 kilometers from my plot. I did not visit .......I had not mentioned before any CBI officer about paying Rs. 8000/- to Animeshji at Lampur Mod.... I do not remember the day or month when this amount was paid to Animesh.....I do not remember if I had any telephonic talk with Animesh on 03.12.18, prior to making complaint to CBI.....
I met Jitender for the first time on the day of raid.....I do not remember the date when I came to know that Jitender had taken charge of my area......I cannot make any guess as to how many days prior to 03.12.18.....I did have telephonic talk with Jitender before making complaint to CBI, but he had not demanded money directly from me and the fact of demand of money by Jitender, as mentioned in my complaint Ex. PW11/A was exaggerated allegation. It was so added there on the advice of CBI officers....."
46.To challenge veracity of verification proceeding and memo, following part of testimony of several witnesses were pointed out by defence counsel, so as to highlight the contradictions appearing in prosecution evidence:-
"PW8/Mohd. Sahid - I remained in the cabin of Raman Shukla for around 1-1.30 hours. Complainant Sunil Sehrawat or Shekhar Kumar did not visit cabin of Raman Shukla in my presence. Nothing was done in respect of present case in the cabin of Raman Shukla in my presence....Page 52 of 118 (Pulastya Pramachala)
Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 PW9/Raman Kumar Shukla - My SP ACB had called me in his chamber on 03.12.18 at about 12 noon.......Shekhar came to me for verification proceedings at about 12.30 p.m. PW12/Shekhar Kumar- On 03.12.18, I was working.........On this date, Manager Administration Incharge of my bank handed over photocopy of a letter sent by CBI and asked me to report at CBI.....I reported at CBI office at about 1 p.m. First of all, I met Shukla Sir.
PW11/Sunil Sherawat - After I gave my complaint, I was also taken to chamber of that officer and some more officers were also present there and that officer had told Shuklaji to go ahead. Thereafter, I was taken to another chamber, where 2 more officers were present, who made enquiry from me. Shuklaji had left that cabin. While those officers were making enquiries from me.......One recording machine was also brought. One new chip was opened from its packet and it was put in that machine......2 calls were made by me, one to Animesh and another to Jitender. I do not know that which calls were recorded....
My conversations with Animesh and Jitender were being heard by other persons present there also.....The chip put in the recording machine was not taken out in my presence and I do not know what happened with this chip before going raid. During such conversations and proceedings, all persons were from CBI and there was no person from outside CBI. My signature was not obtained on any other paper, before leaving for raid.
PW9/Insp. Raman Shukla - Prior to attending office of SP ACB at 12 noon, I was doing some general official work."
47.Ld. Prosecutor took plea that the contradictions pointed out by ld.
Page 53 of 118 (Pulastya Pramachala)Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 defence counsel are not material and they do not go into the roots of the case. On the other hand, ld. defence counsel took plea that such contradictions not only demolish the case of prosecution, but at the same time they also show that there had been no demand on the part of Animesh as alleged by complainant/PW11. He further submitted that the allegations made by PW11 are not credible and reliable, because the CDRs proved by CBI show that there was no telephonic conversation between Animesh and PW11, between 29.11.2018 to 03.12.2018, and thus, the claim of PW11 regarding telephonic conversation with Animesh stands falsified. In respect of verification proceedings also, ld. counsel argued that the aforesaid contradictions show that it was manipulated proceeding as PW8/Mohd. Sahid remained in the chamber of VO/PW9 and he claimed that neither PW11 nor PW12 came there.
48.Apart from aforesaid evidence, CBI has also relied upon the recorded conversations between complainant and accused persons, to support the allegations of demand. Therefore, I find it appropriate to deal with this piece of evidence as well, before making a final analysis and reaching a conclusion regarding allegations of demand. RECORDED CONVERSATIONS AND REPORT OF FSL EXPERT:-
49.During the course of oral arguments, ld. defence counsel made arguments that report given by expert PW10 is inadmissible in evidence, because CFSL, New Delhi is not notified to be authorised agency for examination of electronic evidence, as per provision under Section 79-A of Information Technology Act, 2000. He further referred Page 54 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 to Section 45-A of Evidence Act, 1872, to submit that by virtue of this provision opinion of authorised examiner of electronic evidence only can be relevant and therefore, report of expert/PW10 deserves no credence.
50.This argument is based on the basis of provisions u/s 79-A of Information Technology Act. This issue is a legal issue, so as to decide that in absence of notification u/s 79-A of Information Technology Act, whether report given by an expert from CFSL, New Delhi regarding examination of electronic evidence, would be admissible in evidence?
51.In order to look for an answer to aforesaid legal issue, I would refer to the relevant law provisions in this regard. Section 79-A of I.T. Act was enacted in the year 2000, which came into force w.e.f. 17.10.2000. This provision provides that the Central Government may for the purposes of providing expert opinion on electronic form evidence, specify, by notification, any department, body or agency as an examiner of electronic evidence.
52.The provision u/s 79-A I.T. Act or provision u/s 45-A Evidence Act do not say that in absence of such notification, opinion based on scientific examination given by a person well versed or skilled in such science, cannot be admissible in evidence. Unless such bar is created in law, it cannot be read as an extension of section 79-A of I.T. Act that the report given by any other body/lab shall be inadmissible in evidence.
53.Madras High Court in the case of K. Ramajayam v. Inspector of Page 55 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 Police, Chennai reported in 2016 Cr.LJ 1542, facing similar kind of situation relied upon the report given by an expert regarding examination of electronic evidence, even though such expert was not notified under Section 79-A IT Act. The court observed that-
"It is axiomatic that the opinion of an expert, which is relevant under Section 45 of the Indian Evidence Act, 1872, when accepted by the Court graduates into the opinion of the Court. The Central Government has not yet issued notification under Section 79A of the Information Technology Act, 2000 on account of which Section 45A of the Indian Evidence Act, 1872 remains mute. Therefore, the methods evolved by Kala (PW-23) and Pushparani (PW-24), Scientific Officers of the Tamil Nadu Forensic Sciences Department to analyze and give their opinions on the electronic data, are correct and cannot be faulted."
54.It is worth to mention here that the Information Technology Act was enacted in the year 2000, after much advancement in the use of electronic data, transactions being carried out by means of electronic data and other means of electronic communication. It was so enacted to provide necessary safeguards and for legal recognition to such transactions. However, recorded conversations were being produced during criminal trial of a case since long and much prior to 2000 and same were duly relied upon by the courts, subject to certain precautionary measures, for the purpose of giving decision in such case.
55.It is also worth to be seen that section 293 Cr.P.C. refers to certain government scientific experts and provides that report of such experts may be used as evidence even without calling that expert Page 56 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 before the court. Thus, report of these certain experts were given special status to become admissible even without formally calling such expert to prove the same. In the year 2005, legislature added one more category in section 293 (4) Cr.P.C. to include any other government scientific expert specified by notification by the Central Government for this purpose. This addition took effect from 23.06.2006. Thereafter, w.e.f. 27.10.2009, legislature again came up with section 45-A Evidence Act, to say that opinion of examiner of electronic evidence referred in Section 79-A of I.T. Act shall be a relevant fact in respect of any information stored in any computer resource or any other electronic devise. Thus, it can be seen that legislature had been taking steps one after another, for the purpose of due legal recognition of opinion of expert on electronic evidence in formal manner.
56.It cannot be said that prior to 2009, opinion of any scientific expert over recorded conversations was waste in any court proceedings. Section 45 of Evidence Act in itself is enabling provision to accept opinion of such expert in the court proceedings. Obviously, the courts over the passage of time, have evolved certain precautionary measures for the purpose of appreciation of any such opinion. May be in future notification u/s 79-A of I.T. Act, would further lay down a basis to accept report of such notified expert under Section 293(4) (g) Cr.P.C., without formal proof of the same. It is also to be appreciated that other experts viz. handwriting experts, have to prove their opinion or report before the court, after appearing as witness. Their Page 57 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 opinion/reports are evaluated on merits, rather than being rejected on the grounds that they are not notified experts. For above mentioned reasons, I do not find it proper to reject the evidence and report given by expert/PW10, merely on the basis of afore said plea taken by defence.
CREDIBILITY OF RECORDED CONVERSATION AND REPORT GIVEN BY EXPERT : -
57.Now, the question is that whether the recorded conversation actually contained the voice of accused persons and whether the recorded conversations can be relied upon by this court. Supreme Court in the case of Ram Singh v. Col. Ram Singh, 1985 Supp SCC 611 did lay down certain precautionary guidelines for appreciation of recorded conversations, which are as follows:-
"1.1 The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker.
1.2 The accuracy of the tape-recorded statement has to be proved by the maker of the record by satisfactory evidence- direct or circumstantial.
1.3 Every possibility of tampering with or erasure of a part of a tape- recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.Page 58 of 118 (Pulastya Pramachala)
Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 1.4 The statement must be relevant according to the rules of the Evidence Act.
1.5 The recorded cassette must be carefully sealed and kept in safe or official custody.
The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances."
58.As per testimony of PW9, PW11 and PW12, the telephonic conversations taken place between PW11 and accused Animesh and Jitender during verification proceedings, were recorded in a memory card. All these persons had signed over the plastic and main cover of this memory card, after the recordings. The memory card in its main cover was put in envelope and the envelope was sealed with seal of CBI bearing no.83/2018. This envelope was also signed by all these persons. This memory card was given mark as Exhibit Q1. This memory card was produced before the court for the first time during examination of PW9. It was a parcel bearing seal of PW10 and during examination of PW10, he identified his seal along with his signature and handwriting on this parcel. The parcel was exhibited as Ex.PW10/Article-1. From this parcel, envelope was taken out and PW9, PW11 and PW12 as well as PW10 identified their signature on this envelope. PW10 had deposed that he had put his endorsement on this envelope with his signature, when he received the same in his lab. The plastic cover and main packet of the memory card were also found bearing signature of aforesaid witnesses. PW10 had also Page 59 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 identified his initial on the memory card. These were the steps taken by PW9 and PW10 respectively, to ensure that same memory card could be identified and distinguished from any planted memory card. Ld. defence counsels pointed out to forwarding letter sent by SP, CBI, ACB i.e. Ex.PW15/D, vide which electronic exhibits i.e. memory cards Q1, Q2, S1 and S2 were sent to CFSL, New Delhi for examination with queries. During cross-examination of PW10, a copy of same forwarding letter was obtained on the record, which is Ex.PW10/D-1. At serial nos.3 and 4 of description of the exhibits as well as at serial nos.2 & 3 of the request paragraph, there are additions of the name of Jitender Singh and Animesh Kumar, respectively. It was further pointed out that in the report Ex.PW10/A, envelops of Q2, S1 and S2 were mentioned to be having seal of CBI bearing no.45/2018. As per recovery memo Ex.PW8/B, the specimen voice of A1 was recorded in memory card S1 and specimen voice of A2 was recorded in memory card S2. Though, as per report given by PW10 i.e. Ex.PW10/A, specimen voice of Animesh/A1 was referred to be contained in S2 and specimen voice of Jitender/A2 was referred to be contained in S1. Defence took plea that such manipulation in the forwarding letter and a different seal being mentioned in the report of expert, show that in the memory cards allegedly containing specimen voice of these accused persons, there had been manipulations.
59.I have already pointed out signature of PW9, PW10, PW11 and PW12 being identified by them on the envelope, cover and memory card Q1. Similarly, PW8, PW12 and TLO/PW13 identified their Page 60 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 signature on the envelope, plastic and main cover of memory cards Q2, S1 and S2. Memory card Q2 was for the first time produced before the court during examination of PW8 and the parcel containing the envelope of memory card was once again found with seal of PW10. The memory card S1 was also produced for the first time during examination of PW8, while the memory card S2 was produced for the first time during examination of PW10. On all these parcels, PW10 identified his handwriting with his signature as well as his seal. PW10 also identified his initial on all four memory cards. Thus, one thing is clear that the parcels of these memory cards as produced before the court remained intact after delivery of these parcels from PW10 to CBI. The envelopes of all these four memory cards during their production before the court, were found to be having seal of ACB, CBI bearing no.83/2018. But, in the report given by PW10, there is mention of CBI seal bearing no.45/2018 on the envelops of Q2, S1 and S2, which has created anxiety in this case. In this respect, it is relevant to note the testimony of PW10, wherein he deposed that on 24.05.2019 he started working on this case and he opened all four sealed parcels. All parcels were sealed with seal of CBI ACB ND 83/2018 and he had compared the seal with the specimen seal impression received by him. Thus, it is well established that the envelopes containing aforesaid four memory cards were sealed with the seal of CBI bearing no.83/2018. Description of a different seal as appearing in respect of three memory cards in the report Ex.PW10/A, is therefore, nothing, but Page 61 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 typographical mistake and hence, same cannot be given undue importance.
60.Ld. defence counsel had also pointed out to differences appearing in the testimony of independent witnesses regarding handing over of seal to PW12 by PW9 and subsequently after completion of trap proceedings by PW13. PW12 had produced same seal bearing no.83/2018 before the court during his examination. The defence pointed out to following contradictions in the prosecution evidence in this respect : -
"PW8 - That other civilian person did not hand over any article to any of the CBI officer at that place. None of the CBI officer handed over any particular article to another CBI officer.
PW12 - I had not carried the seal to CBI office on 19.12.18. I have brought today, the summons received from this court.......It is not mentioned in the summons received by me from the court to bring the aforesaid seal with me yesterday....There was no specific reason not to carry this seal to CBI office on 19.12.18.
.........He had given seal to me without any envelope.
PW13 - The seal was handed over back to Shekher on 04.12.18 at about 7.30 a.m....I had given instructions to Shekher to produce the seal before Court if so called by Court or before CBI if so called by CBI......... ........I sent both accused to Safdarjung Hospital for their medical check up. Jitender was admitted in Safdarjung Hospital and Animesh was brought back to CBI office. Thereafter, I prepared recovery memo.........
PW15 - I do not know if sealed parcel containing memory Page 62 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 card Q2, S1 & S2 were having seal of CBI with number of 45/2018, hence, I cannot admit or deny this suggestion."
61.Barring testimony of PW8, I do not find any contradiction in the testimony of other witnesses regarding handing over of seal to PW12. It was not necessary for PW12 to carry this seal to CBI office on 19.12.2018 as well, because as explained by him, on 19.12.2018 he went to CBI office directly from his bank after receiving the requisition letter in the bank, though the seal was kept at his home. There is no relation between handing over of seal to PW12 and medical examination of accused persons. Moreover, the MLCs of both the accused persons do not actually mention the time of their arrival in the hospital at the given column. On the top of these MLCs a time was given, but one cannot be sure, if that was the time of production of the accused persons. In absence of any concrete evidence and explanation sought from relevant agency/doctor, it cannot be assumed that the accused persons were produced for their medical examination at 8.14 am. Furthermore, even if for the sake of argument it is assumed that accused persons were taken for medical examination at 8.14 am, it would only show that TLO did not give correct statement regarding time of medical examination of these accused persons and probably these accused persons were taken for medical examination after conclusion of recovery memo. There is no reason to disbelieve the testimony of PW12 as well as PW9.
62.There is discrepancy regarding description of memory card containing specimen voice of both accused persons, in the recovery Page 63 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 memo. It once again appears to be a case of human error, because TLO did not mention it correctly as to in which memory card, specimen voice of which accused was recorded. However, the report given by PW10 makes no mistake in this regard and it is clearly mentioned therein that S2 contained specimen voice of Animesh and memory card S1 contained specimen voice of Jitender. This mistake was probably intimated to IO/PW15 subsequently from CFSL, New Delhi. Initially, she had simply relied upon the recovery memo to prepare the forwarding letter i.e. Ex.PW15/D and therefore, this forwarding letter contained wrong description of name of accused qua memory card S1 and S2. As per her testimony, when it was so informed to her, then she made corrections in another copy of forwarding letter and sent it back to CFSL. Mentioning the wrong name either in the recovery memo or in the forwarding letter cannot change the actual situation. I fail to understand as to how such error can lead to presume that manipulation were done in these memory cards, especially when these memory cards were also containing voices of independent witnesses and as per report given by PW10, these memory cards were also tested to check tampering in the same, but no tampering was found therein. For this purpose, he had checked the continuity in the wave form and had concluded that recordings were continuous in all these four memory cards. From the cross-examination of PW10 or from the arguments, I am unable to find any established reason to discard such finding of PW10. Unlike report given by PW10 in respect of identification of voice, the test of Page 64 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 continuity in the recordings in aforesaid memory cards was a scientific test and it is not a case of opinion being given by PW10. Rather, it is a case of finding on the basis of scientific test. Unless, it is established that the test carried out by PW10 was not sufficient or relevant to check continuity in the recordings, a different conclusion cannot be given. For the same reason, I do not find any merit in the other contradictions pointed in the testimony of PW8, PW11 and PW12 in respect of recordings being done in these memory cards. One cannot loose sight of the limitation over the capacity of a person to recollect all the happenings in exact manner. There are bound to be instances of varying descriptions being given regarding a fact by different witnesses or giving descriptions out of overlapping memories. Thus, as far as integrity of aforesaid memory cards is concerned, I am satisfied with the same and I do not find any occasion of manipulation in these memory cards.
63.Now, I shall deal with the question of reliability of recorded telephonic conversations. This analysis will also cover the questions arising out of contradictions in oral testimony of several witnesses regarding allegations of demand or recording of conversations during verification proceedings as well as subsequently. All the recorded conversations were duly played before PW8, PW11 and PW12. It was so done, because as per case of CBI, PW11 was participant in the recorded conversations and PW8 & PW12 were the independent witnesses before whom such telephonic conversations and specimen voices were recorded.
Page 65 of 118 (Pulastya Pramachala)Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018
64.PW8 was not present during verification proceedings, though, he claimed that he had gone to CBI office at 10-10.30 a.m. and had handed over certain documents to Insp. Raman Shukla/PW9 in a different case. Thereafter, PW9 told him that he had to go for a raid as well and despite his protest, he was detained there. He was taken to a cabin where two civilians and some CBI officers were present and it was informed that they had to go for a raid to catch a culprit. Apparently, this was not a gathering for verification process, rather such statement refers to pre-trap proceedings. Defence has taken plea that this witness remained in the cabin of PW9 since morning and the verification proceedings were conducted subsequently by PW9. This witness denied that PW11 or PW12 visited cabin of PW9, though, PW9 claimed that he had brought PW11 to his cabin for verification process.
65.To challenge veracity of verification proceeding and memo, following part of testimony of several witnesses were pointed out by defence counsel, so as to highlight the contradictions appearing in prosecution evidence:-
"PW8/Mohd. Sahid- I remained in the cabin of Raman Shukla for around 1-1.30 hours. Complainant Sunil Sehrawat or Shekhar Kumar did not visit cabin of Raman Shukla in my presence. Nothing was done in respect of present case in the cabin of Raman Shukla in my presence...
PW9/Raman Kumar Shukla- My SP ACB had called me in his chamber on 03.12.18 at about 12 noon.......Shekhar came to me for verification proceedings at about 12.30 Page 66 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 p.m. PW12/Shekhar Kumar- On 03.12.18, I was working.........On this date, Manager Administration Incharge of my bank handed over photocopy of a letter sent by CBI and asked me to report at CBI.....I reported at CBI office at about 1 p.m. First of all, I met Shukla Sir.
PW11/Sunil Sherawat- After I gave my complaint, I was also taken to chamber of that officer and some more officers were also present there and that officer had told Shuklaji to go ahead. Thereafter, I was taken to another chamber, where 2 more officers were present, who made enquiry from me. Shuklaji had left that cabin. While those officers were making enquiries from me.......One recording machine was also brought. One new chip was opened from its packet and it was put in that machine......2 calls were made by me, one to Animesh and another to Jitender. I do not know that which calls were recorded.... My conversations with Animesh and Jitender were being heard by other persons present there also.....The chip put in the recording machine was not taken out in my presence and I do not know what happened with this chip before going raid. During such conversations and proceedings, all persons were from CBI and there was no person from outside CBI. My signature was not obtained on any other paper, before leaving for raid.
PW9/Insp. Raman Shukla- Prior to attending office of SP ACB at 12 noon, I was doing some general official work."
66.On perusal of the testimony of these, I do not find the contradictions, pointed out by defence, showing a different picture of the proceedings. PW11 had rather shown absence of PW9 during verification proceedings, but PW12 has deposed otherwise.
Page 67 of 118 (Pulastya Pramachala)Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 According to PW12, he alongwith PW11 and PW9 were there when PW11 had made several calls to accused persons which were recorded.
67.Contradictions in the testimony of different witnesses to same fact may appear on account of two reasons. The one reason may be that such witness is deliberately twisting the facts and the second reason may be that either witness was confused, or he had forgotten some aspects of those facts or there was overlapping of memory regarding different facts. It is well recognised that account of same fact cannot be given in same fashion by different witnesses. Every witness gives account of such facts in his own manner, as per his ability to grasp and understand those facts and recollection. Therefore, the contradictions appearing in the testimony of aforesaid witnesses have to be analysed, keeping in view the above-mentioned possibilities. I cannot give much importance to the testimony of PW8 regarding verification proceedings, because he was not joined in verification proceedings and it may be possible that he was not referring to verification proceedings at all. The estimate of time given by any witness does not happen to be based on noting down the actual time. It is not feasible to keep noting the actual time of every happening. Such estimate, thus, happens to be based on certain presumptions and therefore, they cannot be given undue importance.
68.PW11 was the complainant and from his testimony, I can gather that he had been changing his stand in respect of same fact even before the court. On one hand, he deposed that he prepared complaint as Page 68 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 per his allegations and subsequently, during cross-examination by defence, he very conveniently added that there was no demand from accused Jitender and he simply levelled those allegations against Jitender in his complaint on the advice of CBI officers. At the same time, when audio files from memory card Q1 were played before PW11, then he deposed that those recordings pertained to his telephonic talk with Animesh, Jitender and Animesh respectively. It was not so easy to twist this fact, because PW11 was well aware that recordings were done in the presence of others and he had already made allegations of demand of bribe. In that situation, it could not be easy task for PW11 to come up with different account of his conversations. PW12 had also identified his introductory voice in this memory card. There was audio file no. 181203_1337 which did not contain any conversation and PW12 pointed out that this audio related to first attempt made by PW11 to make call to Animesh. It is worth to mention here that before such audio files were played, PW12 had already testified that in the first attempt the call could not be connected. Thus, it was a corroboration to his testimony regarding this particular happening during verification proceedings. PW12 also heard three other audio files, which were also identified by PW11 to be having recording of his telephonic conversations with Animesh, Jitender and Animesh respectively and even PW12 identified these recordings to be the same as per conversations taken place before him. Therefore, there remains no doubt in respect of these three telephonic conversations being recorded in memory card Q1/Ex.
Page 69 of 118 (Pulastya Pramachala)Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 PW11/Article-1. I have already recorded my satisfaction regarding integrity of all the memory cards, including Q1.
69.Similarly, recordings in memory card Q2 were played before PW8, PW11 as well as before PW12. PW8 identified two audio files bearing no. 181203_1651 & 181203_1641 to be containing telephonic conversation between PW11 and the caller in the moving vehicle. He could not say anything in respect of audio file number 181203_1539. He identified his voice in audio file no. 181203_1531. Initially in respect of another audio file no. 181203_1530, he deposed that it contained voice of A1, but subsequently, during his cross- examination by prosecutor, he conceded that he had wrongly identified the voice in that recording to be pertaining to A1. When the audio files from this memory card were played before PW11, he deposed that recording in audio file bearing no. 181203_1539 pertained to his telephonic talk with accused Jitender. He further deposed that recording in audio file bearing no. 181203_1641 pertained to his telephonic talk with accused Jitender. He further deposed that recording in audio file bearing no. 181203_1651 pertained to his telephonic talk with accused Animesh. He further deposed that recording in audio file bearing no. 181203_1703 pertained to his conversations with accused Animesh and Jitender at the parking of MCD office. PW12 identified his voice in this memory card in the audio file bearing no. 181203_1530. He also identified conversations recorded in audio file no. 181203_1641, to be the same conversation which had taken place before him in the vehicle Page 70 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 before reaching the MCD office. However, he could not say anything in respect of recordings in audio file no. 181203_1539 and 181203_1651. PW12 also duly identified his voice in memory cards S1 & S2, apart from the voice of accused Jitender in memory card S1 and voice of accused Animesh in memory card S2.
70.CBI officials PW9 and PW13 deposed about recording of telephonic conversations PW11 and accused persons, when they started from CBI office for trap proceedings and those recordings in this memory cards, were at least identified by PW11, who was participant in such conversations. In these circumstances, any contradiction regarding recording of any particular telephonic conversation in the moving vehicle (as appearing in the testimony of PW8 and PW12), becomes insignificant. Moreover, all these recordings were examined by the expert/PW10 CFSL, New Delhi.
71.As per testimony of PW10, he had been working as Senior Scientific Assistant (Physics) since the year 2008. He had copied the contents of all memory cards in his computer and had conducted auditory analysis using Gold Wave Software. He compared linguistic and phonetic features in the questioned and specimen voice and noted down his findings in the worksheets. Analysis was done in respect of questioned and specimen voice of each accused separately. He had also conducted spectrography test using Speech Science Lab Professional Edition 4.1 Software on computer. The software prepares spectrograms of the files chosen by the expert and those spectrograms were compared, so as to find out intonation pattern.
Page 71 of 118 (Pulastya Pramachala)Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 After conducting these examinations, on the basis of findings recorded in his worksheets, PW10 prepared his final report which is Ex. PW10/A. In his report PW10 opined that voice marked in memory card Q1 and Q2 as exhibits Q-1 (3)(J), Q-2 (1)(J), Q-2 (2)(J) & Q-2 (4)(J), are the probable voice of Jitender Singh, whose specimen voice was contained in S1 and marked as Ex. S-1(1) (J). Similarly, PW10 opined that voice marked in memory card Q1 and Q2 as exhibits Q-1 (1)(A), Q-1 (2)(A), Q-1 (4) (A) & Q-2 (3) (A) & Q-2 (4) (A), are the probable voice of Animesh Kumar, whose specimen voice was contained in S2 and marked as Ex. S-2(1) (A). These opinions were based on results of auditory examination and voice spectrography examination. The witness had appeared before the court alongwith his office record containing worksheets as well. During his cross-examination by defence, he deposed that it was requirement to obtain transcript of recorded conversation, because in absence of the same, it would take around 10 times more time to complete such examination in a case, as they would have to first of all prepare the transcript and only thereafter, they would be able to conduct examination. I do not find anything wrong with the transcripts being supplied to such expert for his ready reference to mention the words picked from the questioned and specimen voices. I am unable to find any reason out of cross-examination of this witness or the arguments made before me by the defence, to presume that PW10 did not conduct examination properly or he gave his report in connivance with CBI officials. In fact, I find that the report given by Page 72 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 PW10 corroborates the identification of such conversations by PW11 and identification of specimen voices by PW12. Therefore, the report given by PW10 corroborates that memory cards Q1 and Q2 contained voice of accused Animesh and Jitender as per transcript placed on the record i.e. Ex. PW15/B.
72.These transcripts were prepared by IO/PW15. She had also prepared a voice identification memo i.e. Ex. PW15/A. Several questions have been raised against preparation of these transcripts and aforesaid voice identification cum transcription memo. The court has to see if the transcripts are as per the recorded conversations or otherwise. IO stated that such transcripts were prepared on the basis of voice identification by PW11 and the correctness of the transcripts was vouched by PW8 and PW12 before her. As per memo such recordings were played on desktop before all these three persons, who confirmed their respective voices and they also confirmed the conversations to be the same which they had heard on the day of trap. Such part of this memo is basically based on the statement made by these three persons before the IO, which should have been recorded in the form of statement u/s 161 Cr.P.C. Section 162 Cr.P.C. bars a statement of a person given before police to be signed by him. However, IO obtained signatures of all these persons on this memo, due to which this memo is hit by Section 162 Cr.P.C. in respect of above-mentioned contents. It can be read only in respect of the proceedings related to preparation of transcripts. In my opinion, correctness of transcript need not be mandatorily vouched by any Page 73 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 witness as the same can always be checked by the court on hearing the recordings. In fact, I have heard all the recordings and I do not find any material discrepancy in the transcripts proved on the record. Actually on hearing the recordings, one can realise that it is not always possible to project transcript of the conversations in very exact and accurate manner. There are overlappings in the conversations on several occasions. However, what is material is to see if the transcripts give correct picture of the overall conversation and it is so in this case.
73.I find that recorded conversations in this case are not only reliable and credible, rather their reliability is on higher footing than the oral testimony of the witnesses. Obviously, they are being relied upon, only on satisfaction about absence of any manipulation therein. As already observed herein above, there is limitation over the ability of a person to recollect the things in exact manner. It is very difficult if not impossible, to narrate an incident and a conversation in exact manner in which they take place. However, the scientific equipment make it possible for us to know the exact picture of an incident or conversation. The recorded conversations in this case are therefore, said to be on higher footing than oral testimony of the witnesses, because, they project all the conversations in exact and complete manner. In Naveen v. State of Uttaranchal, 2012 SCC OnLine Utt 2787, court made following observations in respect of scientific evidence:-
"Human being may tell a lie, but scientific evidence can Page 74 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 not. A fusion of law and medicine has gone a long way to nab the real culprits. The courts are required to read the mind of the witnesses to unearth the truth. The voyage to the discovery of truth becomes easier when the courts rely upon science. Scientific evidence, unlike people, never tell a lie."
74.I find that even in the present case, the above-mentioned observations are very much applicable. The reason for saying so, can be explained after reproducing the relevant part of conversations between PW11 and accused persons from memory card Q1 & Q2. I had personally heard recordings in all three memory cards i.e. Q1, Q2, S1 & S2. The relevant part of transcript of recorded conversation in memory card Q1, is as follows:-
"In audio file no.181203-1338-01 (contained in memory card Q1) PW11/complainant - ib baat aisi thee na aapne mere ko kya bola tha shuru me, ek baat sachchai bolna bhai sahab. Accused Animesh - haan.
PW11/complainant - aapne bola tha ki Sunil ab ye jo paise hai uske baad aapne dene nahi padenge. Accused Animesh - maine bilkul yahi kahaa tha. PW11/complainant - fir dobara main main. Accused Animesh - fir dobara bhai, achha dekh bhai teri file mere paas thee na.
PW11/complainant - haan file aapke paas thee ab Jitender Ji ke paas chali gayi.
Accused Animesh - nahin nahin file ka maine samadhan karwa diya lekin ab jab area badalta hai to main abhi saari baat Inspector sahab se kah rha hun lekin jo aaya hai naya uski toh thodi bahut dekhni padegi naa, aisi baat toh hai nahin kee jo naya aaya hai wo aise hi ghoomega, toh ab jimmedari uski hai itne din chala rakhe koi dikkat hui.Page 75 of 118 (Pulastya Pramachala)
Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 PW11/complainant - chalo thik hai sir aisa karte hain fir main aa jata hun dekho thode bahut jo aapke rah rahe wo do hazar rupaye wo de deta hun.
Accused Animesh - arey meri chhor tu meri, ab koi tension nahi hai jo naye Inspector sahab hai unse mil. ...................................... PW11/complainant - wo toh baat theek hai, ab ye aur bata do kitne paise lekar aaoon, ghar par toh saat aathh hazar pade hai bas.
Accused Animesh - maine toh uss din idea tujhe us din bataa hi diya thaa, chal tere too ek kaam kar. PW11/complainant - haa jee.
Accused Animesh - usme das tu lekar ke le aa main Inspector sahab ko kah dunga.
PW11/complainant - theek hai jee das le aata hun, fir main toh aap suno ib do aapke ho jaenge das unke ho jaenge, baarah ho gaye ye toh.
Accused Animesh - arey meri chhod yaar tu, main fir se kah raha hun meri chhod tu, rahne de, too apna mamla nipata le.
PW11/complainant - toh paanch baje tak aa jaaun main. Accused Animesh - main ek baar pehle baat kar leta hun ki wo kahaan hai agar idhar nahi honge fir aane ka koi fayda nahi hoga na.
PW11/complainant - toh das kar laaun main das hazar. Accused Animesh - haan main ek baar baat pehle main Inspector sahab se baat karta hun kee wo kahaan hain.
In audio file no.181203-1346 (contained in memory card Q1) PW11/complainant - Achha, main nyu kah rha tha aapki miss call aa rahi thee bhai sahab.
Accused Jitender - wo gaye the plant par subah.
PW11 - achha.
Accused Jitender - haan jabey mara thaa phone. ............................
Accused Jitender - aa jao aap, paanch baje tak ta aa Page 76 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 loge?
PW11/complainant - haan, paanch baje tak aa lunga, main nyu kahun thaa saat hazar me kaam chalega ki thode aur batti laag jayenge.
Accused Jitender - bhai, dekh mil.
PW11/complainant - bhai sahab nyu tha na ib jukar paanch chhah hazar jeb me pade hain. Paanch chaar hazar ghar se das tak hazar rupye le leta theek hai, ib aage roj roj yo pareshani waali baat na hoti bhai sahab. Accused Jitender - bhai sahab Animesh ke kahe pichhe mere sar pe ta bojh utar jaega.
PW11/complainant - achcha.
Accused Jitender - ek baar aake mil lete naa usme -- PW11/complainant - fir bhi mere nyu ho jata jukar ib fir das hazar me kaam chal jaega?
Accused Jitender - aa jao aap. Chaal rahaa hai kaam ta un bhi chaal jaaega.
PW11/complainant - ib nyu kukar chal jaega ib batao aap aaj somwaar ne gharaa bhi gae ho, manne nahin pataa aap gharaa gae the, main toh yun Panipat tha na, kihe ne mere te batayi aapki miss call gaadi me pada tha phone charging pe toh maine dekha.
Accused Jitender - chalo aa jaao aa jaao paanch baje tak aa jao aap.
In audio file no.181203-1357-01 (contained in memory card Q1) PW11/complainant - haan toh main yahi kah raha tha das hazar rupaye ki aapne baat bol di unko, ki nahin boli unko.
Accused Animesh - main abhi unse mil lo wo kya kahte hain saari baat hai wo.
PW11/complainant - wo toh ye kah rahe hai naa kee das hazar rupaye le ke aa ja toh usme se kuchh kam ho jaenge kee nahi?
Accused Animesh - abhi dekho main kuchh nahi kah sakta ye baate aap aao unse mil lo baith jao, aamne Page 77 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 saamne karwa dunga baat kar lena isme kya baat ho gayi. ..............................
PW11/complainant - main len den aap se hi karunga aur kisi se nahi karunga.
Accused Animesh - pahle aap aa jao.
PW11/complainant - theek hai sir."
75.As per undisputed file related to water plant of PW11 i.e. Ex.A3 and particularly office note of Animesh/A1 i.e. Ex.PW2/B, a closure notice dated 16.08.2018 was issued to PW11, directing to close his water plant. As per Ex.PW2/B, Animesh made office note to report that he again inspected the site on 08.09.2018 and found that there was no water cooling plant. He also mentioned about reply and affidavit submitted by PW11. This reply of PW11 was received in MCD office, vide diary no.1708 dated 07.09.2018 along with affidavit dated 31.08.2018. In this note itself, there was reference to challan dated 19.02.2018, which was issued against PW11 and aforesaid closure notice was issued on the basis of subsequent note given by Animesh.
76.Even the above mentioned portions from recorded conversations from memory card Q1 make it amply clear that accused Animesh and PW11 had been in contact. The conversation further shows that PW11 was told about a new Inspector i.e. accused Jitender by Animesh. Animesh also acknowledged receiving money from PW11 and his assurance given in past to PW11 that PW11 would not be required to pay more. There cannot be any other meaning of such conversation between PW11 and Animesh, but to reflect that in the past PW11 had paid money to Animesh. It is also well reflected that Page 78 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 said money was taken on the pretext of Animesh having file of PW11. Thereafter, the file was transferred to Jitender. It is also well reflected that PW11 kept running water cooling plant wihin knowledge of Animesh. It is no ones case that PW11 had obtained requisite licence to run this plant. Furthermore, Animesh did not react to the version of PW11 that PW11 would also pay remaining Rs. 2000/- to him. Rather, Animesh told him not to have tension about that and to meet the new Inspector. It is also well reflected from the aforesaid conversation that in the past Animesh had given idea to PW11 as to how much was to be paid and he again told him during verification proceedings to come alongwith 10. Animesh told PW11 to leave Rs. 2000 for him, which signifies that there had been such due against PW11, meaning thereby the claim of PW11 made before the court that out of Rs. 10,000/-, he had paid Rs. 8,000/- only, is not false claim. It is also well reflected that Animesh assured PW11 that he would talk to Jitender.
77.From the conversation between PW11 and accused Jitender during verification proceedings, it is well reflected that Jitender had visited plant of PW11 in the morning and at that time, Jitender had made call to PW11. Jitender asked PW11 to come at 5 p.m., but he did not react when PW11 said if Rs. 7,000/- would be sufficient or he will have to pay more. Rather, he asked him to meet. Jitender also acknowledged that Animesh had talked to him about PW11 and when he was again asked by PW11 if Rs. 10,000/- would be sufficient, then he told PW11 to come and that it would be sufficient.
Page 79 of 118 (Pulastya Pramachala)Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018
78.From the above-mentioned conversations between the parties, it is well established that accused Animesh had taken some amount from PW11 in the past, on the pretext of allowing him to run his water plant. After his transfer, he had talked to Jitender and PW11 was asked to pay to Jitender as well.
79.There is no defined specific form of demand, which is required to be established on the record. The demand can be made in various ways. In the present era, there are various means to make other person pay bribe. Putting pressure without asking money in too many words, is also one of such way to make a person pay bribe. Very often, even code words are used to make demand of bribe. Therefore, to expect that in all the cases, the public servant would use specific word in specific manner to demand bribe, will be unrealistic approach to the prevailing situation in the society. The court has to raise inference on the basis of all the surrounding circumstances. In the present case the above-mentioned conversations are only in addition to what has been alleged by PW11 regarding past transaction and his conversation with accused persons, in his testimony before the court. I find the maximum portion of his oral testimony regarding the background and subsequent happenings, so as to make him pay bribe in the past and thereafter to demand more bribe after transfer of Animesh, is well corroborated and confirmed by the above-mentioned recorded conversations. In any other situation, there could not be any reason for Jitender to keep a positive silence with a nod to say that Rs. 10,000/- would be Page 80 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 sufficient. There could not have been any occasion for Jitender to entertain such bargain by PW11, had not there been such demand made through Animesh in the past.
80.Explanation 2(ii) to Section 7 of the Act provides that "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." Therefore, it becomes immaterial if Jitender was not found making this demand in very explicit manner. Above mentioned conversations make it amply clear that he was a party to demand for Rs.10,000/- from PW11 through Animesh and out of such understanding with Animesh only, he nodded to PW11 that this amount would be sufficient.
ACCEPTANCE AND RECOVERY
81.For the purposes of establishing acceptance and recovery of bribe amount from accused persons, CBI has examined members of trap team i.e. PW4, PW8, PW9, PW11, PW12, PW13 and PW14. In order to establish recovery, CBI has also relied upon the report given by Assistant Chemical Examiner from CFSL, New Delhi i.e. Mrs. Deepti Bhargava/PW5. According to the CBI officials i.e. PW9, PW13 and PW14, after constitution of trap team, TLO/PW13 introduced every one to each other and explained the purpose of assembly. Complaint of PW11 was told to everyone. On demand of PW13, PW11/ complainant produced Rs. 10,000/- in the denomination of five currency notes of Rs. 2,000/- each. PW14 gave demonstration of use of phenolphthalein powder before everyone and for this purpose he Page 81 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 applied phenolphthalein powder over the five currency notes of Rs. 2,000/-, which were handed over by PW11 to PW13. PW8 was asked to touch those currency notes and thereafter a solution of water and sodium carbonate was prepared in a glass tumbler. As per instructions, PW8 touched those currency notes and thereafter, dipped fingers of his right hand into that solution. On doing so, the said solution turned pink in colour. Thus, it was explained that phenolphthalein powder after coming into contact with solution of water and sodium carbonate, gave pink colour in the solution. Thereafter, PW12 took search of PW11 and except for mobile phone, nothing else was left with him. PW8 was asked to put the phenolphthalein treated currency notes into the pocket of pant of the complainant/ PW11, which he did. Thereafter, all members of trap team washed their hands. Solution as well as remnants of phenolphthalein powder were disposed off. PW13 prepared a trap kit containing sodium carbonate powder, water bottles, glass bottles, sealing materials, glass tumbler, papers, stationaries etc. He also took FIR and some new memory cards. DVR was already handed over to PW13 by PW9. Handing over memo was prepared by PW13, which was signed by everyone. PW13 took out one new memory card. He demonstrated blankness of DVR to independent witnesses. Memory card was inserted in the DVR and thereafter, introductory voice of PW8 and PW12 were recorded in that memory card. The team left for trap. When they were about to start for trap, a call was received on the mobile phone of PW11 from Jitender. This call was Page 82 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 picked by PW13, while keeping his mobile phone on speaker mode and the conversation was recorded in the memory card in the presence of PW8 and PW12. Role of PW8 and PW12 were explained to them by PW13. PW8 was instructed to act as shadow witness and to remain with PW11 during the time of handing over of bribe. He was also asked to overhear the talk and to oversee the transaction. PW12 was asked to remain with trap team. PW11 was given instructions not to touch the currency notes before handing over the same to accused persons and to hand over the same on demand by the accused. He was also asked to give missed call after completion of transaction, as a signal to TLO. In one vehicle PW11, PW8, PW12, PW9, PW13 and one SI Pawan had taken seat. When they were on their way to MCD Office, another call was received from Jitender on mobile phone of PW11, which was also recorded in the memory card. Jitender was asking about expected time to reach his office. When they reached near MCD office, PW11 was asked to make a call to Animesh, so as to find out his location. This conversation was also recorded in the memory card, wherein Animesh asked PW11 to reach in the parking area. DVR was put in the switch on mode and it was kept in the front pocket of the shirt of the complainant and thereafter, PW11 went inside the office campus. PW8 followed him. PW13 also went inside the campus, following PW11 and PW8, remaining members of the team took position near gate of MCD office. PW13 had taken position in the parking area near a structure and from that position he was able to watch movement of PW11. PW13 saw that PW11 was talking Page 83 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 to two persons in the parking area, near a swift car. PW14 had taken position in the building of MCD office alongwith Insp. Nawal, in a passage. PW14 saw that PW11 handed over something to one of the two persons, with whom he was talking and their conversation continued. On the other hand, PW13 received a missed call from the complainant and he rushed towards PW11. In this duration, he also made telephonic call to PW14 and told him about bribe transaction being over. PW14, Insp. Nawal and PW8 also rushed towards that car. PW13 had caught hold of Jitender, who was sitting in that swift car and who was holding money in his right hand. PW13 had caught hold of his left hand. PW13 asked his name and Jitender introduced himself. While introducing himself, Jitender handed over that money to another person sitting on the driver's seat. PW13 introduced himself to Jitender. By this time, PW14 and others had also reached there. PW14 asked the person on driver's seat and he caught hold of his right hand. His name was disclosed as Sant Ram and Sant Ram was holding money in his left hand. When PW14 asked him as to why he was having money in his left hand, then Sant Ram became nervous and threw that money over dickey of that car. DVR was taken back from PW11 immediately after reaching that place by one of the CBI officers. Different versions were given by different officers. PW9 claimed that he took it back, while PW13 claimed that he took it back. PW14 did not remember about it. Thereafter, PW12 was asked to lift those currency notes from dickey and to count them. They were five currency notes of Rs. 2000/- each. PW8 and PW12 matched Page 84 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 number of those currency notes with the numbers mentioned in the handing over memo. These numbers were already noted in CBI office during pre-trap proceedings. They were found to be the same currency notes, as per description mentioned in the handing over memo. PW11 was asked to narrate the happenings and he told that he handed over those notes to Animesh. Animesh took it through his left hand and transferred them into his right hand. Thereafter, Animesh gave that money to accused Jitender. Jitender accepted those notes with his right hand and thereafter, took them into his left hand. Thereafter, washes of both hands of Animesh and Jitender were taken in the solution of water and sodium carbonate. All these solutions had turned pink, which were transferred into separate empty bottles of glass. Every time fresh solution was prepared, after washing the tumbler. The hand wash of left hand of Sant Ram was also taken in the similar manner. All these hand washes, after being transferred in the glass bottles, were sealed with the seal of CBI. Descriptions of those hand washes were mentioned over paper, which was pasted over each bottle. These paper slips were signed by PW13, PW8 and PW12. The currency notes were put in a brown envelope, which was also sealed with the seal of CBI and this envelope was also signed by PW8, PW12 and PW13. PW13 obtained telephone number of MCD officers and thereafter, keys of office room of both accused were arranged. One peon of the office came with keys and thereafter, a search in the office room of the accused persons was taken in the presence of PW8, PW12 and Page 85 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 accused Animesh. Animesh took out file related to PW11, which was seized by PW13. Thereafter, trap team came back to CBI office. PW13 had also issued search warrant u/s 165 Cr.P.C., which was handed over to PW7 in the mid way, so as to search the house of Animesh. PW14 had prepared a site plan also. After reaching back CBI office, both accused were formally arrested. After interrogation Sant Ram was left and keys of said swift car was handed over to him. Recorded conversations from memory card were played in DVR and thereafter, memory card was taken out. PW13 prepared a copy of contents of that memory card using write blocker, in his laptop and thereafter, the memory card was endorsed as Q2. This memory card was put back in his plastic cover and main cover. PW13 alongwith PW8 and PW12 signed over those packets. The cover was thereafter, put in a brown envelope, which was also signed by aforesaid three persons. PW13 made endorsement on that envelope regarding particulars of this case and memory card as Q2. The envelope was also sealed with seal of CBI.
82.PW13 heard recorded conversations from copy of memory card in his laptop. He picked some sentences from those conversations as identified by accused Animesh and Jitender. He asked these accused persons regarding their willingness to give their voice sample and they agreed for the same. Thereafter, PW13 opened new memory card and inserted the same in DVR. He demonstrated blankness of the same and thereafter, recorded introductory voices of PW8 and PW12. Thereafter, specimen voice of Animesh was recorded, while Page 86 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 asking him to read the sentences picked by PW13. Thereafter, concluding remarks of PW8 and PW12 were recorded. The memory card was endorsed as S1 and it was again kept back in its plastic cover and packet and thereafter, in an envelope in the same fashion, as done with other memory cards. This time also PW8, PW12 and PW13 signed over the cover, packet and envelope of memory card. Envelope was sealed with seal of CBI. In the same manner specimen voice of Jitender was recorded in another new memory card, which was also sealed. DVR was also sealed in another envelope and then PW13 prepared recovery memo, giving details of proceedings, which was signed by all.
83.PW8, PW11 and PW12 also deposed in respect of aforesaid pre-trap and trap proceedings. PW4 deposed only in respect of happenings in the parking area. However, there had been some contradictions in respect of several facts. PW4 claimed that he had come to parking area as per instructions of Jitender to wait in the car. Jitender came to the car and the moment he was sitting in the car, around 15-20 persons of CBI came and caught hold of his hands. They also caught hold of hands of PW4. Therefore, they took them to their office and his statement was forcibly taken by compelling him to say that Jitender had given money to him. In his cross-examination by ld. Prosecutor, he denied the suggestion that Jitender came to the car and handed over money to him so as to keep it or that he had kept that money on the dickey of car, when Jitender and himself were apprehended by CBI persons.
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84.PW8 first of all claimed that, though PW11/complainant was present in that room, but he was not told about his complaint and his grievances. Therefore, he did not know about his complaint. He further deposed that PW11 did not narrate his grievance to him, though it was narrated before CBI officers in the same cabin. He further deposed that PW11 was sitting at a distance of about 1 meter from him and he was able to hear what PW11 was saying. Thereafter, PW8 disclosed as to what was being said by PW11. PW8 deposed that PW11 was saying that someone was making demand of bribe of Rs. 10,000/- from him, but he did not tell the purpose of such demand. One can find that aforesaid part of testimony of PW8, contradicts his own version and apparently PW8 had twisted the facts. This witness was cross-examined by ld. Prosecutor and during his cross-examination, he admitted that he was shown complaint of PW11 and was also informed that PW11 had alleged against Animesh and Jitender about demand of Rs. 10,000/- for not sealing his water plant. Thus, it is well apparent that PW8 was basically lying at first instance. This is added reason to be very careful while appreciating the evidence of this witness.
85.PW8 further denied that PW11 produced amount of Rs. 10,000/- before PW13 in his presence. He, though, deposed that amount of Rs. 10,000/- was kept over the table in the denomination of Rs. 2000/- each and number of those currency notes were noted down by CBI officers in their documents. He further deposed that he was told that some chemical was applied over those currency notes and he Page 88 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 was also asked to count those currency notes. Thereafter, his hand wash was taken in a glass of water which turned pink. At the same time, he deposed that chemical was not applied over those currency notes in his presence. He was shown a white powder, but he was not told the name of same. The hand wash was thrown in wash basin and CBI officer kept that glass and powder in their bag. He further deposed that no one took search of complainant. Amount of Rs. 10000/- was kept in an envelope by CBI officer. He was asked to wash his hand in the wash basin and he did so. But no one else had washed their hands. He was also not explained the role to be played by him in this raid and was asked simply to accompany them. PW11 was given mobile number of CBI officer with instructions to give missed call after giving bribe. CBI officer had also brought a recording instrument, which was like a mobile phone, but it was not a mobile phone. He further deposed that nothing else was brought or inserted in that instrument. Though, his voice and voice of complainant/PW11 were recorded in that instrument. Thereafter, said instrument was kept by CBI officer. CBI officer had written in handwriting as to what was stated by the complainant. CBI officer had also prepared a document in his handwriting regarding the proceedings taken place in that office. That document was shown to him and was explained in Hindi and thereafter, his signature was taken on the same. Complainant also signed the same and thereafter, they left that office. While being on the way to MCD office, a call was received on mobile phone of PW11, which was recorded.
Page 89 of 118 (Pulastya Pramachala)Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 Complainant was asked to reach Narela MCD office. In the vehicle itself, PW8 was asked to accompany PW11, but he was reluctant for the same and hence, it was decided that complainant would go alone. Complainant was handed over Rs. 10,000/- in the CBI office itself, which was kept by the complainant in his right front pocket of his pant. PW8 took position near gate of the MCD office and he could see that complainant had gone to the swift car. Complainant had taken seat inside that swift car and within 5 minutes, complainant and one other person came out of that swift car. Thereafter, they all proceeded towards that car and one CBI officer had caught hold of both hands of the other person. Rs. 10000/- was lying over dickey of that car. The apprehended person was saying that he did not demand anything. Hand washes of both hands of that person was taken one by one and every time the water had turned slightly pink, which were transferred in separate bottles and the bottles were sealed. A slip was pasted over both the bottles, mentioning name of that apprehended person. Prior to taking hand wash, PW8 on instructions, had counted those currency notes and number of those currency notes were matched with the numbers mentioned in the document prepared at CBI office. The currency notes were found to be the same. Currency notes were kept in an envelope, which was signed by CBI officer, PW8 and other public witness. CBI officer had also checked the office room of the apprehended person and had taken certain documents from that office. Another person was also present in the same vehicle, who was also apprehended and both hand washes of second Page 90 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 person was also taken in the same manner. In the CBI office, CBI officer recorded voice of both apprehended persons alongwith PW8 and other public witness. Some chip was put in that instrument before recording the voice of apprehended person and these witnesses. During cross-examination by ld. Prosecutor, PW8 admitted the suggestion that PW11 was directed not to touch those currency notes, unless specific demand was made by Jitender. He denied other several suggestions given by prosecutor. He could not remember anything about new memory cards being taken or other members of team washing their hands, though, he admitted that before inserting memory card, blankness of DVR was demonstrated before them. He could not remember if any call was received by PW11 from Jitender just before leaving CBI office. He also admitted that before PW11 went inside the MCD office, DVR was kept in the pocket shirt of PW11. In response to court question regarding contradictory statements made by PW8 in the examination chief and thereafter in cross-examination conducted by ld. Prosecutor, PW8 deposed that answers given during cross-examination were correct and prior to that during lunch time, he concentrated over the facts and could realise that everything had happened in his presence. In the cross-examination by ld. defence counsel, PW8 could not remember the language in which the complaint was written, nor could he remember if PW12 had also gone in the same vehicle with him for raid.
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86.Complainant/PW11 in his examination in chief deposed that in the team a muslim had come from DTC (referring to PW8) and another person was from bank (referring to PW12). His complaint was explained before whole team, though no one asked any question from him. The recording machine was put into his pocket before leaving the office. He handed over Rs. 10000/- in the denomination of 3 currency notes of Rs. 2000/- and 8 currency notes of Rs. 500/-. These notes were kept before everyone and some white powder was applied over the same. Importance of that powder was explained. Demonstration of that powder was given. Someone had took his search and except for phone, nothing was left with him. The currency notes were kept in the pocket of his shirt and he was instructed not to touch the same. Before leaving the office, PW11 pointed out that those currency notes were kept in the pocket of his shirt and CBI officer also asked to put recording machine in the same pocket. Then PW11 was asked to take out currency notes from the pocket of shirt and keep it in the pocket of his pant. Accordingly, he kept those currency notes in the right side back pocket of his jeans. No call was received before leaving that place in the vehicle. When they were on their way to MCD office, he received one call either from Animesh or Jitender, which he did not remember. Before reaching office, PW11 made call to Animesh, so as to ask which place he was to meet him and he was asked to come in the parking. After deboarding the vehicle, recording machine was switched on. When PW11 had talked to accused in the moving vehicle, no one else had heard the same, Page 92 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 nor it was recorded. In the MCD office, PW11 went to Animesh in the parking area. He handed over money to Animesh and thereafter, he started looking into his phone, so as to give the missed call. He could not see as to what was done by Animesh with that money, because he remained busy in giving missed call. It took 2-3 attempts and then he gave missed call to PW13. Thereafter, he walked towards gate of the campus for around 10 steps and when he turned back, then he saw that right hand of Animesh was caught hold by some member of team. PW13 had caught Jitender, who was sitting in that car. The third person namely Sant Ram was standing behind that car and someone had also caught hold of him. The witness was using vague terms to answer the questions. He was given directions to give answer in specific terms and thereafter, he narrated about money being there on dickey of that car and hand washes of all three persons being taken one after another. He further deposed that the hand washes were transferred in 5-6 jars. When the water bottles of hand washes were produced before him then, he deposed that he had seen these bottles for the first time in the court.
87.PW12 deposed mostly on the lines of testimony of CBI officers. However, he deposed that the currency notes were put into the front pocket of pant of PW11 by him. He gave same description of persons sitting in same vehicle, but deposed that when they were on their way to Narela, a call was received on mobile phone of complainant from Jitender. However, this call was not recorded, nor any other call was recorded during that movement. Even the call made before Page 93 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 deboarding the vehicle was not recorded. Though, in this call PW11 had called about his reaching that place and PW11 was asked to come in parking area. PW11 and PW8 went inside that office. PW8 maintained a distance from PW11. PW13 had also entered that office, but he did not go alongwith PW11. After sometime, PW12 saw PW9 and other members rushing inside the MCD office and he also followed them. In the parking area, he saw PW13 and other officers had caught hold of 3 persons through arms. A Maruti Swift car was also there and both of its back doors were in open condition. Some currency notes of Rs. 2000/- were lying on the dickey of that car. PW12 was asked to lift those currency notes and tally the number of the same with the numbers mentioned in the document prepared at CBI office. PW8 alongwith PW12 tallied number of those currency notes and found them to be the same as per numbers mentioned in that document. The currency notes were put into an envelope, which was signed by PW8, PW12 and PW13. Hand washes of all three persons were taken one after another and the hand washes were transferred in separate bottles. The hand washes had turned the solution pink. Some writing was made on the stickers over those bottles and their signatures were obtained on the same. Office room of accused was searched, wherein Animesh was asked to take out file of water plant of PW11. He took out a file and gave it to CBI officer, which was taken by CBI officer.
88.In his cross-examination by defence, PW12 reiterated that PW11 had handed over 5 currency notes of Rs. 2000/-. He further deposed that Page 94 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 phenolphthalein powder was thrown in CBI office itself and sodium carbonate powder was taken to the spot. He further deposed that the colour of the sodium carbonate solution was same throughout the proceedings of dipping hands by different persons. He further deposed that at the spot of trap, PW11 explained before them that Jitender was sitting on rear seat of swift car and had handed over money to Sant Ram, who was sitting on the front seat of the car. PW12 had entered parking area after PW9. No wash of the particular point of dickey of the car was taken, where currency notes were kept.
89.To challenge veracity of recovery memo, prepared in respect of hand washes, bottles, preparation or S1 & S2, manner of arrest, events taken place at the spot as well as tallying of notes, following part of testimony of different witnesses were pointed out by defence counsel, so as to highlight the contradictions appearing in prosecution evidence:-
"In his examination, PW8/Mohd. Sahid deposed that I was also asked to accompany the complainant, but I was reluctant to go with him and I said that I was new for such work. Thereafter, it was decided that complainant would go alone.
Complainant had taken seat inside that swift car and within 5 minutes, complainant and one other person came out of that swift car....The CBI officer poured water in the glass from a bottle and at that place itself, while keeping that glass over the dickky.
In his cross-examination, PW8/Mohd. Sahid deposed that I had taken position on the main gate of that office alongwith one CBI officer.....Page 95 of 118 (Pulastya Pramachala)
Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 Vol. It was being ticked by CBI officer, though myself and Shekher were tallying the numbers.
I do not remember if any CBI officer was noting down any word or sentence from that recording. A CD was prepared from that memory card before sealing the same.
In his examination, PW9/Raman Shukla deposed that I had taken back DVR from the complainant and I switched it off. .....DVR was switched on by SI Pawan before it was put in the pocket of complainant....
In his examination, PW11/Sunil Shehrawat deposed that ....I do not know if any new chip was put in the recording machine before keeping the same in my pocket of shirt... When we were on our way to Narela MCD office, I had received one call either from Animesh or Jitender.....Before reaching the office, I had made call to Animesh Sir.... When I had talked to accused in the moving vehicle, no one else had heard the same, nor it was recorded nor it was in speaker mode....
I went into the parking of that office, where Animesh was standing and was having conversation with someone. They were 4-5 persons........He shook hands with me and kept talking with others.....because, I remained busy in giving missed call, which took 2-3 attempts. After giving missed call to Sunil Sir, I walked towards the gate of that campus for around 10 steps.......Sunil Sir had caught Jitender, who was sitting in that car. On the dickky of car, water bottles were kept and on the same dickky....There were 5-6 jaars, which were sealed and while sealing the same, I was also asked to come near, so as to see the process of sealing. Again said there were only 3 jaars.....I can identify those jaars today, if shown to me. No one had counted the money kept on the dickky of the car in my presence.....
In my presence, no ones voice was recorded by CBI officer. I do not know what happened with the chip put in the recording Page 96 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 machine. Nothing was given to any of the public witnesses by CBI officers in my presence.
At this stage, Ct. Finny Sam from Malkhana has produced 5 glass bottles.......Witness states that he has seen these bottles for the first time in the court room today. The chips from the recording machine were not sealed in my presence.........No one had explained me the contents of the document which was signed after returning back to CBI office.
My vehicle was parked in a gali adjacent to the MCD office. It would be around 50 meters away from the main gate.....
In his examination, PW12/Shekhar Kumar deposed that "While we were on the way to Narela, a call was received on the mobile phone of the complainant from Jitender. However, that call was not recorded. No other call was recorded during our movement in vehicle........After reaching that place and before deboarding the vehicle, complainant had made call, but I do not remember to whom this call was made. This call was not made on speaker mode and it was not recorded. ......Some currency notes of Rs.2000/- was lying in the dickey of that car.....Some documents were got signed from me and Sahid related to arrest etc. Recording was not played before me on this date.
While leaving CBI office on 04.12.18, I had signed on some document in CBI office, but I do not remember about nature of that document. I cannot recall if it was a slip of paper or a complete document or bunch of document or handwritten document. I had not read the contents of documents, which were signed by me.
The MCD office would be around 600-700 meters from that place.
It was being explained by complainant before all of us when we had assembled near the swift car during trap proceedings that Jitender was sitting on the rear seat of that swift car and had handed over money to Sant Ram, who was sitting on front seat of the car.Page 97 of 118 (Pulastya Pramachala)
Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 .......TLO had taken seal from me once only. He had given seal to me once only.
.......At MCD office, I moved/rushed towards parking area after around 15-20 minutes of complainant. I do not remember as to after how much time of my reaching that parking area, the DVR was switched off. .....The colour of sodium carbonate solution had the same colour throughout the proceedings of dipping hands by different persons, whenever such proceedings took place before me.
In his examination, PW13/Insp. Sunil Kumar deposed that "While running towards the complainant at MCD office, I made telephonic call to Insp. Dharmender and told him about bribe transaction being over....... .......I had taken back DVR from the complainant at the moment when I took out Jitender from the car and I had switched it off.
.......I gave those sentences to Animesh to read and asked him to read the same thrice, which was recorded in the above-said memory card.....
.....I sent both accused to Safdarjung Hospital for their medical check up. Jitender was admitted in Safdarjung Hospital and Animesh was brought back to CBI office. Thereafter, I prepared recovery memo......... .......First call was received immediately after leaving CBI building but before taking seat in our vehicles...... ......I cannot tell the exact distance between the parking of our vehicles and main gate of MCD office, but it could be somewhere between 100-150 meters..... .......After transaction of bribe, complainant gave only one missed call to me. At that time, I was about 30 meters away from complainant.....
.....I do not remember who had prepared solution of water and sodium carbonate or that who had taken hand washes. I do not remember if labels on all five glass bottles were already pasted on the bottles or they were so pasted at the Page 98 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 spot of trap.....
No other person was standing with complainant and accused Jitender and Animesh in the parking area, while they were having conversations among them before apprehension of accused persons......
In his examination, PW14/Insp. Dharmender deposed that ....Our vehicles were stopped at a distance of about 500 meters from MCD office......
......I did not see complainant giving any signal. I rushed towards that car when I saw TLO apprehending Jitender. TLO had not given me any signal or any call to reach there.....
Solution of water and sodium carbonate was prepared on the ground......"
90.I have already observed herein above that PW8 had given contradictory statements before the court in respect of same fact i.e. regarding knowledge of complaint. Even PW11 had been very shaky during his examination before the court. As far as evidence related to recording of conversations are concerned, I have already mentioned my reasons herein before while dealing with the aspect of demand, to believe in the integrity of the memory cards containing the recording of conversations as well as to believe upon the recorded conversations, which give the accurate and clear picture of the happenings. These recordings confirm the correctness of account of facts given by PW9, PW12, PW13 and PW14 to a substantial extent. Now, I shall reproduce some relevant part from the recorded conversations in memory card Q2, which relate to the conversation taken place between PW11 and both accused persons in the parking Page 99 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 area of MCD office.
"In audio file no.181203-1703 Accused Jitender - Jitendra Dahiya. Accused Animesh - koi dikkat wali baat nahi hai maine kah diya hai badhiya aadmi hai.
PW11/complainant - arey bhai sahab aapne nyu kahi thee ki itne de denge, itna kaam ho jaega aap fir. Accused Animesh - dekh dekh main tere hisaab karta hun.
Accused Jitender - bhai dekh is cheej ka jab pta chalega jab aur seal ho lenge we.
Accused Animesh - ib too das din ruk jaa. Accused Jitender - haan das din me nipta lenge. Accused Animesh - das din das din theek hai teri file too dekh lega teri bach jaegi baaki ki seal ho jaegi is baat ka tujhe tab pata lagega.
....................
PW11/complainant - kitne dene hai yu batao kyon gareeb aadmi nyu mare ho.
Accused Animesh - ye Inspector sahab khare hain, main kuchh nahi kahta, Inspector sahab bhi naram hi hai, koi dikkat wali baat nahin, dekh lo Inspector sahab aaram se. Accused Jitender - saal bhar ka hi kar le jab te main kahun tere se roj roj.
PW11/complainant - saal bhar ka batao kitne dene hai? ..............
Accused Animesh - ek baat bataa, jiska liya jaye uska bachaw bhi kiya jata hai, bachaw karne itne na ki hum sabke bachaw kar sake.
Accused Jitender - sabka naa liye jaate. PW11/complainant - aapne jab wo file kari thee, jab aapne nyu kahi thee kee das hazar rupye de de aage koi dikkat nahi hogi, us din main aath de gya tha, aapte haath paon jod ke ki bhai sahab do hazar rah gaye, aap le liyo, fir aap bole Dahiya sahab aa gae.
Accused Jitender - dekh yaar chhote apne man ne mat Page 100 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 dukhawe hamari baat jo ho li so ho li.
Accused Animesh - koi baat nahi, file teri dekh file teri maine teri file rukwane ke liye the, teri file ruk rahi hai, theek hai, baki Inspector sahab hain, tere area me ab inka bhi to dhyan rakhega. Inspector sahab ke haath me pakda. PW11/complainant - gin lo gin lo.
Accused Animesh - pahle sun to sahi, kitne. PW11/complainant - dukhi mat kariyo. Accused Jitender - arey nahi dukhi.
Accused Animesh - tere samne khade hai Inspector sahab.
PW11/complainant - das hazar hain.
Accused Animesh - das de Inspector sahab ko. PW11/complainant - gin to sahi.
Accused Jitender - koi nahi - - - gin rakhe hai. Jab tane kah dee.
Accused Animesh - jab tere te kah dee to, isme ke baat ho gayi Inspector sahab hai koi dikkat wali baat nahi hai theek.
Accused Jitender - dekh bhai Sunil chala koi tension nahi hai hamaari or se naa kade aawe, ek dusri baat, ek baar jab tere gaon wale seal honge na, panch minut jab bodreshan aaegi, tab complaint karne ki sochenge, theek hai, us time bhi rasta dikha denge tumhe. Accused Animesh - us time ka bhi nikalenge rasta. Accused Jitender - kyonki inke jab band honge to, wa lugai kudegi jiske gate nahi hai kone me, dukan hai parchun ki teri gali se pahle nahi, kone pe plant hai jo. ................
Accused Animesh - achha tu ek baat bata mere bakhtawarpur, mere khyal se lagbhag lagta hai saal do saal, saal dedh saal se upar ho gaye, mai tere te kuchh kahne ke liye gaya, tera chalan kaata, kuchh kiya, bataa, jab tak mamla kuchh nahi hota na jab tak hum bhi nahin jate, jab too mauj liya saare le rahe the maine to kisi se kuchh nahi kaha.
Accused Animesh - ek baar thodi si complaint aayi thee, Page 101 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 chalan kaat ke chhor diya, han gaya hun to bataa. PW11/complainant - ab isi me apne do hazar kar liyo. Accused Animesh - ho gaye, tu befikra rah, tu mere se jab bhi kah raha thaa, phone par ki aapke do, maine kaha jab kaam ho gaya na apni jeb me jaane ke lie nahi, tera kaam hona chahiye, maine saab se kar karaa ke jo tha, maine kaha, itna aae maine kar kra ke - sahab se bhi kar diya kaam khatam, yahan aisa nahi hai ki saare kaam apne haath me hai - upar se bhi bahut kaam karwane padte hain.
Accused Jitender - chalo nikal jaun fir main. Accused Animesh - haa theek hai niklo. Accused Jitender - chalo bhai sahab. Accused Animesh - theek hai.
Accused Jitender - aap befikr raho iss cheej se. Accused Animesh - befikr rah, main tere se bar bar kha thaa, ki tu meri uski tension na le, tera file ka kaam karwa diya naa, jo kaam ho gaya, wo ho gaya, chahe wo hazar bach rahe do hazar, paanch sao, uski chinta na thee, main uske baad tujhe phone kiya kade, ki bhai Sunil too kuchh kah raha tha mauj le ja.
Accused Jitender - ye bhai sahab us time dekhoge jab auro ke bund honge.
Accused Animesh - Inspector sahab ka number hai hi, koi dikkat nahi hai, badhiya mauj lo kaam kar."
91.I have reproduced only some part of the conversation for the sake of brevity. This particular audio file contains some other conversations as well. Before I further discuss about aforesaid recording and conversation, it is worth to mention that the undisputed CDRs proved on the record, duly corroborate the given time period and date of all the recorded telephonic conversations between PW11 and both accused persons. The CDR further shows that on 29.11.2018 Page 102 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 Jitender had made call to PW11 in the morning hours, which reflects importance of the date of 29.11.2018. Now, I shall discuss the above mentioned recorded conversation taken place at parking area in MCD office.
92.The initial part of the recording has sound of walking only, for around 2.21 minutes. Thereafter, there is recording of conversation of Animesh with some different person, which shows that Animesh was talking to some different person and after freeing that person, he started talking to PW11. The conversation between PW11 and both accused persons continued from 2.50 minutes upto 7.35 minutes. Thereafter, there had been some conversation in low voice and at 8.09 minutes, there is sound wherein Jitender introduced himself to someone by telling his name as Jitender Dahiya. This part confirms that when TLO/PW13 reached there, he asked name of Jitender and Jitender introduced himself.
93.If I appreciate all these recordings alongwith the recordings in 3 other audio files in same memory card, wherein PW11 had conversation with Jitender (on 2 occasions) and lastly with Animesh, I find that those conversations are the same as per description given by CBI officers and to some extent by PW8, PW11 & PW12 as well. These recordings show that the testimony of these public witnesses that such conversation in vehicle were not recorded, is hence, not correct. It further shows that the DVR could not have been put in the pocket of PW11 in the CBI office itself and it was falsely claimed by PW11.
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94.Now, I shall deal with the aspect of currency notes. I find that PW11 has deliberately twisted the facts to give a different description of denomination of currency notes handed over by him to PW13, which were treated with phenolphthalein powder. Testimony of all other remaining witnesses had been consistent and those currency notes were also produced in sealed envelope with same seal of CBI before the court as well. This is such instance of contradiction wherein this witness appears to have deliberately twisted the facts. It is not unheard or uncommon development now a days, where a witness is win over before he testifies in the court. It is not necessary for such witness to deny all the things altogether. That is a risky step as well. The easier way is to twist some important facts in such a manner, so that benefit of the same could be availed by the accused persons. Same has happened in this case as well. PW8 and PW11 have made some false statements in this case, which become apparent on the basis of intact integrity of other piece of evidence, involving scientific evidence.
95.Though, PW11 declined to identify the bottles of hand washes to be the same in which the hand washes were transferred at the spot, however, I fail to presume any gain for CBI in changing the bottles of hand washes, because even PW11 deposed that the handwashes had turned the solution pink in colour. Moreover, all these 5 bottles bore signatures of PW8, PW12 and PW13. Testimony of PW5 supports the contention of PW13 that such bottles were sealed with same seal of CBI bearing no. 83/2018. PW5 after conducting test Page 104 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 using TLC technique, found presence of phenolphthalein powder and sodium carbonate in all 5 bottles. She had also put her signature on each bottle, cloth wrappers removed from each bottle and envelope containing those cloth wrappers. She had found all bottles in sealed condition. She identified her signatures on the same before the court. From her cross-examination by the defence, I do not get any such material, so as to presume that she did not conduct any test or that she gave a false report. The hand washes were taken at the spot, and it does not matter as to the same were taken while standing there, using dickey of swift car or were taken by sitting on the ground. PW11 deposed that he had shaken hand with Animesh. He also deposed that he had taken out the currency notes from the pocket of his shirt and had put the same in his back pocket of jeans. However, the second part of his statement is again twisted fact. Even PW8 has twisted the facts in respect of keeping these currency notes in an envelope initially and thereafter, he changed his version to say that this amount was given to PW11 in office itself and PW11 himself kept that money in his right front pocket of the pant. Both these witnesses have lied over this aspect.
96.In appreciating such testimony, it has to be seen if CBI officers were fool enough to allow PW11 to keep the currency notes himself in his pocket. It cannot be so. There is no reason for CBI officers as well as PW12 to tell lie in respect of manner in which currency notes were put in the pocket of PW11. Moreover, phenolphthalein powder is not alleged to be rubbed into the hands of both accused and Sant Ram at Page 105 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 the spot. No such suggestions were given to any witness by any accused, nor any such fact could come in the testimony of any witness. The recorded conversation reproduced herein above reflects that PW11 was insisting to hand over the amount to Animesh and thereafter, PW11 also asked them to count the currency notes. Thus, the currency notes were actually handed over by PW11 to Animesh and it could reach Sant Ram only in the manner as testified by PW13. PW11 falsely stated that he could not see that what was done with that amount by Animesh. His conversation shows that Jitender was there only and PW11 had insisted for counting of notes. Thereafter, PW11 had further conversation with both accused. Hence, it is not possible that PW11 did not see transaction of bribe amount to Jitender.
97.There is some discrepancy in respect of PW14 being present at CBI office till end of the proceedings. However, these kind of discrepancies do not go deep into the roots of the matter. These are procedural aspects. Even if some lapses may have taken place, wherein PW14 signed recovery memo, though he did not remain there till morning of 04.12.18 and his signature would have been obtained subsequently by PW13, same does not have any bearing on allegations against accused persons. Ideally, TLO should take note presence of every one during the proceedings and should mention if anyone left the proceedings in half way. But such fact in itself does not wash away the established crime committed by accused persons. In respect of other contradictions pointed out by defence counsel Page 106 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 also, I have the same opinion. Some minor discrepancies, therefore, is not treated to be fatal for the case of prosecution. Time and again Supreme Court had been making such observations and a few of them are as follows:
98.In State of Rajasthan Vs. Smt. Kalki and Another, (1981) 2 SCC 752 (FB), Supreme court observed that :-
"In the depositions of witnesses there are always normal discrepancies however honest and truthful they may be. Those discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person."
99.In State of U.P. Vs. M.K. Anthony, AIR 1985 SC 48, Supreme Court held that :-
"While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinise the evidence more particularly keeping in view the deficiencies, draw-backs and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit Page 107 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 rejection of the evidence as a whole. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate Court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross examination is an unequal duel between a rustic and refined lawyer."
100.In Vidhya Rani and Madan Lal Vs. State (Delhi Admn.), Criminal Appeal Nos.186 and 385/1997, it was held that :-
"5. Overmuch importance cannot be attached to minor discrepancies. The reasons are obvious:
a) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
b) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprised.
The mental faculties therefore cannot be expected to be attuned to absorb the details.
c) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
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d) By an large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape-recorder.
e) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess-work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
f) Ordinarily a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
g) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.
h) Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all important 'probabilities factor' echoes in favour of the version narrated by the witnesses."
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101.In State of U.P. Vs. Anil Singh, AIR 1988 SC 1998, Supreme Court held that :-
"With regard to falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version. It is also experienced that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses."
102.In respect of testimony of a witness who is very often termed as hostile, Supreme Court in the case of Gura Singh v. The State Of Rajasthan, 2001 AIR SC 330, made following observations, which are relevant for this case as well: -
"From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stand thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the Page 110 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 record, that part of his testimony which he finds to be credit worthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto."
103.In the present case, though I find that PW8 and PW11 had twisted some facts deliberately before the court, but remaining part of their testimony are well in conformity with similar kind of picture depicted by other PWs related to trap team. Therefore, only those twisted facts are to be discarded, which have been identified on the basis of other credible evidence available on the record.
104.Accused Animesh had summoned a witness in his defence namely Mr. Ravi, who was examined as DW1/A1. This witness claimed that he was present in the parking area, when a person (later on, informed to be Sunil) came to Animesh. Sunil talked to Animesh in respect of documents of his plant and Animesh referred him to Jitender and thereafter, Jitender and that person went towards a Swift car and took seat in that car. He further went on to say that some 3-4 persons came rushing to said Swift car and those persons took out Jitender from that car and then came towards Animesh. Those persons asked this witness and other persons present there, to leave that place. He further went on to say that during aforesaid proceedings, Animesh did not ask any money from Sunil nor did Sunil give any money to Animesh.
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105.However, the recorded conversation between PW11 and both accused persons, as taken place in the parking area, along with testimony of PW13 and PW14, leave no doubt that PW11 had handed over money to Animesh and that they all had conversation together and at no point of time PW11 went away along with accused Jitender. Thus, it becomes clear that DW1/A1 deposed falsely before the court about Sunil/PW11 moving away with accused Jitender towards Swift car and taking seat in that car for sometime. Even PW8 made false statement regarding PW11 taking seat in the car. PW8 also falsely stated that no memory card was inserted in DVR, in CBI office. DW1/A1 also deposed falsely that PW11 did not give any money to Animesh. In respect of this witness, there are two probabilities. Either he was not present at this place at all or if he was present at this place during relevant time, then he gave false description of happenings there. In both these situations, I come to find that this witness made false statement before the court, for obvious reasons that he wanted to save Animesh. Hence, his testimony cannot be given any attention.
106.In view of my foregoing discussions, I find that it is well established that bribe money was actually accepted by Animesh and Jitender together, while meeting PW11 in the parking area of MCD office. This money was recovered from that spot itself i.e. from dickey of the car, as the same was put/thrown there by Mr. Sant Ram, to whom the money was handed over by Jitender. In these circumstances, I find that even Mr. Sant Ram, who was examined as PW4 in this case, Page 112 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 also made false statement before the court to the effect that Jitender did not hand over money to him or that when Jitender was apprehended by CBI persons, then PW4 had not kept that money over dickey of the car.
Presumption under section 20 of the Act:-
107.My foregoing discussion on evidence, establishes the existence of demand, acceptance as well as recovery of bribe amount from the accused persons. In such situation, as far as offence under Section 7 of the Act is concerned, a presumption under Section 20 of the Act also comes into play.
108.In the case of M. Narsinga Rao Vs State of Andhra Pradesh, Supreme Court 2001 CRI. L. J.515, a three judge bench of Supreme Court was dealing with legal question that "can a legal presumption be based on a factual presumption?" In that case the complainant and independent witness to the trap proceedings had turned hostile and they did not support the allegations of the prosecution that accused had demanded and accepted bribe amount of Rs. 500/- from PW-1. In the appeal, accused took plea before the court that the presumption u/s 20 of the Act could be drawn only when the prosecution succeeded in establishing with direct evidence that the delinquent public servant accepted or obtained gratification. Defence also argued that "that premise cannot depend on an inference for affording foundation for the legal presumption envisaged in section 20 of the Act." It was further argued by defence that it is not enough that some currency notes were handed over to the public servant, to Page 113 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 make it acceptance of gratification. Prosecution has a further duty to prove that what was paid amounted to gratification.
109.While dealing with such arguments, larger bench of Supreme Court held that:-
"the only condition for drawing such a legal presumption u/s 20 is that during trial, it should be proved that the accused has accepted or agreed to accept any gratification. The section does not say that the said condition should be satisfied through direct evidence. It's only requirement is that it must be proved that the accused has accepted or agreed to accept gratification. Direct evidence is one of the modes through which a fact can be proved. But that is not the only mode envisaged in the Evidence Act."
110.The court made further observations as under:
"In reaching the conclusion, the court can use the process of inferences to be drawn from facts produced or proved. Such inferences are akin to presumptions in law. Law gives absolute discretion to the court to presume the existence of any fact which it thinks likely to have happened. In that process, the court may have regard to common course of natural events, human conduct, public or private business vis-a-vis the facts of the particular case. The discretion is clearly envisaged in section 114 of the Evidence Act."..........
"Illustration (a) to section 114 of the Evidence Act says that the court may presume that "a man who is in the possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession." The illustration can profitably be used in the present context as well when prosecution brought reliable materials that Page 114 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 appellant's pocket contained phenolphthalein smeared currency notes for Rs. 500/- when he was searched by PW7 DSP of the Anti Corruption Bureau. That by itself may not or need not necessarily lead to a presumption that he accepted that amount from somebody else, either stuffing those currency notes into his pocket or stealthily inserting the same therein. But the other circumstances, which have been proved in this case and those preceding and succeeding the searching out of the tainted currency notes, are relevant and useful to help the court to draw a factual presumption that appellant had willingly received the currency notes."
111.The court further referred to another observation made by a three Judge Bench of same court in the case of Raghuvir Singh v. State of Haryana, AIR 1974 SC 1516. In this case, J.Krishna Iyer observed that the very fact of an assistant station master being in possession of the marked currency notes against an allegation that he demanded and received that amount is "res ipsa loquitur".
112.The court further referred with approval to following observations made by same bench in the case of Madhukar Bhaskar Rao Joshi v. State of Mahrashtra, 2000 AIR SCW 4018, so as to dispel the argument of defence that it was not gratification which the appellant had received:-
"The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established, the inference to be drawn is that the said gratification was accepted "as motive or reward" for doing or forbearing to do any official act. So that word 'gratification' need not be stretched to mean reward because reward is the outcome Page 115 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like 'gratification or any valuable thing'. If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for the official act, the word 'gratification' must be treated in the context to mean any payment for giving satisfaction to the public servant who received it."
113.Thus, the Supreme Court in aforesaid case negated the argument that in absence of direct evidence, presumption u/s 20 of the Act cannot be raised or in such situation, case of prosecution is bound to fail. In the present case, as per my findings, prosecution has also established recovery of tainted money apart from demand and acceptance. Therefore, even otherwise, in absence of rebuttal to presumption u/s 20 of the Act, it has to be presumed that both accused had accepted such amount as a motive and reward to favour complainant/PW11 so as to allow him to run his water cooling plant, even without obtaining license for the same. DECISION
114.Thus, on the basis of foregoing discussions and my observations, I find that evidence on the record establishes that Animesh had demanded and taken amount of Rs.8000/- from PW11, as consideration/reward for allowing him to run his water plant even without requisite licence, though on the file its closure was shown by him. Such amount was taken prior to registration of this case. Since, PW11 had been much fluctuating in giving account of exact time of Page 116 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 such payment, therefore, the exact date cannot be said with certainty. However, it appears to have been paid somewhere between 16-08- 2018 and 29-11-2018.
115.It is further established on the record beyond doubt that after transfer of Animesh to other area and Jitender taking charge from Animesh, both entered into an understanding/agreement, to demand further money from PW11 for Jitender, as reward to forbear to prosecute PW11 for running water plant even in absence of requisite licence. This amount was to be demanded by Animesh for Jitender.
116.It is further established on the record beyond doubt that Animesh demanded Rs.10,000/- as bribe for Jitender from PW11 and assured PW11 to exercise his personal influence over Jitender so as to make him to forbear to take action against PW11 for running water plant without requisite licence.
117.It is further established on the record beyond doubt that in persuance to aforesaid agreement, Animesh and Jitender met PW11 at MCD office, Narela on 03-12-2018 during evening time, in the parking area and Animesh accepted amount of Rs.10,000/- from PW11 towards bribe, meant for Jitender. It is also established that Jitender accepted that amount from Animesh, and handed over the same to his known person namely Sant Ram, knowing it to be reward from PW11 to forbear to take action against him for running water plant without requisite licence.
118.Therefore, both accused Animesh and Jitender are held guilty for offence punishable under Section 120-B IPC read with Sections 7 & Page 117 of 118 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI - 221/2019 RC No. 38(A)/2018 7-A of the Act.
Accused Animesh is held guilty for offences punishable under Sections 7 & 7-A of the Act.
Accused Jitender is held guilty for offence punishable under Section 7 of the Act.
Both accused Animesh and Jitender are convicted accordingly for aforesaid offences.
Digitally signed by PULASTYA PRAMACHALAPULASTYA PRAMACHALA Date:
2020.01.29 18:54:31 +0530 Announced in the open court (PULASTYA PRAMACHALA) today on 29.01.2020 Special Judge (PC Act) CBI-13, (This judgment contains 118 pages) Rouse Avenue District Court, New Delhi.Page 118 of 118 (Pulastya Pramachala)
Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi