Delhi District Court
State vs . Surya Prakash Rawat Etc. Page 1 Of 30 on 16 August, 2014
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IN THE COURT OF SH. NAROTTAM KAUSHAL,
SPECIAL JUDGE (PC Act)05, (ACB), (CENTRAL),
TIS HAZARI COURTS, DELHI
STATE
Versus
Surya Prakash Rawat
S/o D.S. Rawat
R/o 389/F, Pocket II, PhaseI
Mayur Vihar, Delhi.
Ram Kumar Tyagi
S/o Shri Banke Lal
R/o A1/66/74, East Gokalpur,
Delhi.
Corruption Case No. : 23/2012
FIR No. : 05/2009
Case Identification No.: 02401R0402332012
Police Station : Anti Corruption Branch
Under Section : 7/13 of Prevention of
Corruption Act, 1988
& 120B IPC
CHALLAN INSTITUTED ON : 29.08.2012
JUDGMENT RESERVED ON : 12.08.2014
JUDGMENT PRONOUNCED ON : 16.08.2014
State Vs. Surya Prakash Rawat etc. Page 1 of 30
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JUDGMENT
1.1 Surya Prakash Rawat, the then SHO, PS Bhajanpura and Ram Kumar Tyagi, the then SI, PS Bhajanpura have been charge sheeted by Anti Corruption Branch for offence punishable u/s 7/13 POC Act r/w section 120B IPC.
2.1 The case of the prosecution is as under : One Deepak Aggarwal proprietor of a restaurant under the name and style Tiger Den, Bhajanpura, made a complaint to DCPACB to the effect that SI R.K.Tyagi of PS Bhajanpura often visited the restaurant. He had been pressurising complainant for settling a monthly payment to be made. He claimed to be working on the directions of SHO and collecting the monthly on his behalf. On 19.12.2008, SI Tyagi came to restaurant and openly demanded Rs.5,000/. Considering the presence of customers, amount of Rs.2,000/ was given to him by the complainant in the presence of one Deepak Sharma. SI Tyagi demanded payment of balance of Rs.3,000/ and also asked for Rs.2,500/ to be paid, per month. Complainant paid the balance amount of Rs.3,000/ on 24.12.2008.
Thereafter, complainant went to the PSACB and discussed the matter. On 08.01.2009, he recorded conversation between himself and SI Tyagi on a recorder made available, by officials of PSACB. Another amount of Rs.2,500/ was paid to SI Tyagi to win over his confidence. Complainant attempted to State Vs. Surya Prakash Rawat etc. Page 2 of 30 3 conduct further recordings but was unsuccessful. In the mean time, SI R.K.Tyagi was transfered. A new officer was posted in the division. Another restaurant under the name & style of Dream Beverages was challaned. Complainant was also receiving messages from SHO to fix a monthly payment. Complainant, therefore, planned to expose the racket. He convinced one Anurag Gupta to pose as Mukesh Sharma (owner of Dream Beverages Restaurant) and act as a decoy to trap the SHO. On 12.02.2009, decoy Anurag Gupta as Mukesh Sharma spoke to the SHO, on behalf of Dream Beverages Restaurant. This conversation was also recorded on the instrument made available by Anti Corruption Branch.
During investigation, statement of Anurag Gupta was recorded by the IO in the hand writing of Anurag Gupta on 24.02.2009. The transcript of the recorded conversation were prepared. Voice samples of the accused persons and Deepak Aggarwal were collected and sent to FSL for comparison, with the recorded conversation. The reports were positive. However, Anurag Gupta was not available for his voice sample and, therefore, no FSL report could be collected for the same. IO also recorded the statement of one Amit Kumar Kashyap, who had accompanied Deepak Aggarwal on 08.01.2009. Deepak Aggarwal had video recorded the meeting with SI R.K.Tyagi.
State Vs. Surya Prakash Rawat etc. Page 3 of 30 4 2.2 After conclusion of investigation, challan was filed in the court on 29.08.2012. Ld. Predecessor of this court took cognizance of the offences u/s 7/13(i)(d) of Prevention of Corruption Act, 1988 r/w section 120B IPC against both the accused persons. They were summoned to face trial. On appearance of both the accused, provisions of sec.207 Cr.P.C. were complied with.
3. After hearing the accused persons on charge, Charge for offences punishable u/sec.120B IPC, section 7 POC Act r/w section 120B IPC and section 13 POC Act r/w section 120B IPC was ordered to be framed vide order dated 05.04.2013. Accordingly charge was framed against both the accused persons to which they pleaded not guilty and claimed trial.
4.1 Prosecution, in support of its case, examined 27 witnesses. Complainant Deepak Aggarwal (PW12) proved his complaint, demand and acceptance of bribe by accused R.K. Tyagi. Amit Kashyap(PW20) was cited and examined to prove the recording of conversation /demand by accused R.K. Tyagi from Deepak Aggarwal on 8.1.2009. Recording of conversation dated 12.02.2009 between Anurag Gupta and S.P. Rawat was also deposed by Deepak Aggarwal (PW12). 4.2 SI Karnail Singh (PW27) has deposed that he had handed over recording devices to Deepak Aggarwal who recorded/got recorded conversations with the accused persons on 08.01.2009 and 12.02.2009 and handed over the recorders to him. He transferred the State Vs. Surya Prakash Rawat etc. Page 4 of 30 5 recordings on his office computer and converted the same into two CDs, which were handed over to IO/Inspector Avinash Sharma. He proved the CDs and contents thereof.
4.3 ACP Data Ram (PW24) deposed that both the accused persons had worked under his control. He was then working as ACP Seelampur. He identified the voices of both the accused persons in CD Ex. P2. He also identified the picture of accused Ram Kumar Tyagi in the video footage of CD Ex. P2. He proved the observation memo Ex. PW4/A which was prepared during investigation for the same purpose. 4.4 Dr. C.P. Singh (PW5) proved FSL report Ex. PW5/A, wherein he had given his opinion that the audio track dated 8.1.2009 and 12.02.2009 contained in the CD Ex. P2 examined by him indicated no alteration in audio recordings. He also opined the voices contained therein to be matching with the sample voices of accused persons. V Laxmi Narasimha (PW9) had also analysed the audio track contained in CD Ex. P2. He proved his report Ex. PW9/A wherein he had opined voice of complainant Deepak Aggarwal in audio track of 8.1.2009 to match with the admitted voice of Deepak Aggarwal. 4.5 H.C. Anand Prakash (PW1), Ct. Jatinder Singh (PW2) and HC Chandra Singh (PW10) proved the link evidence of video CD being carried from malkhana to FSL. They proved the sanctity of pulanda during its journey from malkhana to FSL. HC Jitinder Singh (PW3) and HC Jai Prakash (PW4) remained as malkhana Incharge of PS Civil State Vs. Surya Prakash Rawat etc. Page 5 of 30 6 Line, where CD containing recorded conversation (Ex. P2) and voice sample had remained deposited. They proved the sanctity of case property.
4.6 Vijay Singh (PW13) was a panch witness to taking of voice sample of accused S.P. Rawat. Rajesh Kumar S/o Late Sh. Ashok Kumar (PW14) was a panch witness to taking of voice sample of complainant Deepak Aggarwal. Rajesh Kumar, Inspector T&TE (PW19) and Sh. Pankaj Verma (PW23) were panch witnesses to the recording of voice sample of accused Ram Kumar Tyagi. Kuldeep Kumar ( PW17) and Siya Ram Meena (PW18) are panch witnesses to the proceeding dated 20.02.2009 when Inspector Yash Pal Singh (PW22) and ACP K.R. Meena had brought the accused Ram Kumar Tyagi and S.P. Rawat respectively to PS ACB. Audio CDs containing recorded conversations were played before them and both the accused persons, then arrested. Maharaj Mandal (PW16) was a panch witness to preparation of transcript of conversation dated 08.01.2009. He proved transcript Ex. PW16/A to have been prepared in his presence. Inspector Avinash Sharma, part IO, proved transcript of conversation dated 12.02.2009(Ex.PW26/G), to have been correctly prepared by him. 4.7 Ct. Mukesh (PW7) of PS Bhajanpura proved duty roaster of PS Bhajanpura for 8.01.2009 indicating presence of accused R.K. Tyagi at the PS for 'day emergency' duty. Tirath Ram (PW6) is a panch witness to handing over of duty roaster by Ct. Mukesh. State Vs. Surya Prakash Rawat etc. Page 6 of 30 7 4.8 Satish Chander (PW8) proved grant of sanction to prosecute accused S.P. Rawat. Rajiv Ranjan (PW15), DCP proved grant of sanction to prosecute accused SI R.K. Tyagi.
4.9 Inspector Naresh Dahiya (PW11), ACP Roop Lal (PW21), ACP Ravinder Kumar (PW25) and Avinash Sharma (PW26) have remained part IOs of this case from time to time. They have proved various stages of investigation and preparation of challan.
5. Incriminating evidence that came up against the accused persons was put to them. They denied having demanded any bribe from Deepak Aggarwal, for self and each other for permitting him to run his restaurant without MCD license. They also denied having received any amount of bribe towards their demand. They denied audio/video recording with complainant Deepak Aggarwal or with decoy Anurag Gupta. They denied knowledge of their voice identification by ACP Data Ram. They explained grant of sanction to prosecute them having been accorded without application of mind. They claimed the FSL reports to be incorrect. They both claimed that Deepak Aggarwal had been challaned by them and was arrested in various cases. Complaint was falsely lodged by him. Supplementary statements of both the accused persons were recorded on 8.8.2014. They denied knowledge that recording devices were given to Deepak Aggarwal which were returned to SI Karnail Singh after recording conversations with them. They also denied for want of knowledge, that State Vs. Surya Prakash Rawat etc. Page 7 of 30 8 the recordings were converted into CDs or that complainant confirmed the recordings to have been made by him and his friend/decoy.
6. Accused persons examined H.C. Sabu (DW1) as their solitary defence witness. He proved certain DD entries of PS Bhajanpura, with regard to issuance of challans pertaining to restaurant of Deepak Aggarwal.
7. Shri Sanjay Soni, Ld. Additional PP on behalf of the State has argued that testimony of complainant Deepak Aggarwal (PW12) establishes conspiracy between the two accused persons to demand bribe as protection money for permitting him to run his restaurant unauthorisely without licence from MCD. The witness also proved recording of audiovideo footage with accused R.K. Tyagi. His oral testimony is supported by the audiovideo recording. Preparation of transcript of the audio recording has been proved by panch witness Maharaj Mandal and the IO. It is further argued that lack of certification u/s 65B of Indian Evidence Act would not come in the way of prosecution, as SI Karnail Singh (PW27) who had prepared the CDs from the original device containing conversation, has proved that there was no tampering with the recorded conversation. Moreover, in the absence of certificate u/s 65B Indian Evidence Act, CDs can be accepted as secondary evidence. Continuity of audio track and matching of voice of accused R.K. Tyagi and complainant Deepak Aggarwal have been sufficiently proved. It is next argued that though State Vs. Surya Prakash Rawat etc. Page 8 of 30 9 Anurag Gupta, who had recorded the conversation with accused S.P. Rawat was not available during investigation and has not been examined as a witness; yet prosecution has proved the authenticity of conversation dated 12.02.2009 recorded between S.P. Rawat and Anurag Gupta. The voice of S.P. Rawat has been sufficiently proved which has demanded an amount of Rs. 12,000/ from the person who was talking to him posing as decoy, the owner of Dream Beverages Restaurant. It is argued by Ld. Additional PP that sanctity of case property and grant of sanction to prosecute the accused persons also stand established. It is, therefore, argued that prosecution has proved its case beyond reasonable doubt. Shri Soni has relied upon the law laid down in State (Government of NCT) Vs Afsan Guru AIR 2005 SC 3820.
8.1 Shri Yogesh Verma, Ld. counsel for accused R.K. Tyagi and Shri Satish Tamta, Ld. counsel for accused S.P. Rawat had been heard at length. It is argued by Ld. defence counsels that prosecution has not proved handing over or taking over of recording devices from complainant Deepak Aggarwal. There is no evidence on record that Deepak Aggarwal reported at PSACB prior to 19.02.2009, when the complaint was made by him. In the absence of any documentary evidence to indicate handing over of devices or his visit to PS ACB prior to alleged dates of recording conversation, doubt is cast on the availability of any original recording devices. It is pointed out that in State Vs. Surya Prakash Rawat etc. Page 9 of 30 10 a status report filed by IO/Inspector Ravinder Kumar before the Hon'ble High Court, it was stated that complainant had provided recorded CD in the ACB.
8.2 It is further argued that CD Ex. P2 allegedly containing the recorded conversation was not played before complainant Deepak Aggarwal during his testimony in the court. He has thus not identified the conversation and the CD and, therefore, the CD is not reliable. Reference has been made to law laid down in Col. Ram Singh Vs Ram Singh AIR 1986 Supreme Court 6. It is next argued that the recorded conversation dated 8.1.2009 is alleged to have been made on audio video recorder but the CD contains two distinct files, one audio and one video. There is no evidence as to how two separate files were created and there is no explanation as to why the video file was not sent to FSL or report sought thereon. Preparation of CDs is denied by complainant Deepak Aggarwal ( PW12), himself. There is no evidence of preservation of recordings. FSL report cannot be relied upon as the transcripts, mentioning names of speakers was sent by the IO to the FSL; thus indicating the dotted lines on which report was to be submitted. It is also argued that prosecution has with held material witnesses namely Krishan Kant and Deepak Sharma, who were running the restaurant with the complainant. Employees of the restaurant have also not been examined as witnesses. It is further argued that complainant Deepak Aggarwal is not a person of State Vs. Surya Prakash Rawat etc. Page 10 of 30 11 credibility. He is facing several trials under various provisions of IPC. He had been challaned under DP Act for running the restaurant without proper licence from MCD, by the accused persons. He was thus enemical towards the accused persons and created false evidence to implicate public servants who were performing their public functions in due discharge of their duties. Sh. Verma has cited the law laid down in Subhash Chand Chauhan Vs CBI 2005 (1) JCC 230, Tukaram S Dighole Vs Manikrao Shivaji Kokate AIR 2010 Supreme Court 965, Nilesh Dinkar Paradkar Vs State of Mahrashtra III (2011) SLT 35, V Kannan Vs State 2009 (4) RCR (Criminal) 213 and order passed in Hari Singh Yadav Vs State in Crl. A. No. 464/2004 on 18.02.2014. .
9.1 I have heard the Ld. counsels and with their assistance perused the evidence on record and judgments relied upon by them. At the core of prosecution case is the recording dated 08.01.2009 between complainant and accused R.K. Tyagi and the recording dated 12.02.2009 between one Anurag Gupta and accused S.P. Rawat. Prosecution case has been built on the oral testimony of Deepak Aggarwal ( PW12) and the two aforesaid recordings. All other evidence is only to support these two aspects.
9.2 I shall, therefore, first deal with the credibility of audio/video recordings dated 08.01.2009 and 12.02.2009. Complainant Deepak Aggarwal (PW12) has deposed that he was issued one audiovideo State Vs. Surya Prakash Rawat etc. Page 11 of 30 12 recording device on his visit to PS ACB, but he could not conduct the recordings when SI R.K. Tyagi visited and demanded Rs. 5,000/. He went to PS Bhajanpura on 08.01.2009 carrying Rs. 2,500/ and met SI R.K. Tyagi. He handed over the amount of Rs. 2500/ to the accused in the premises of PS Bhajanpura at about 8.00 PM and conducted audio video recording . To corroborate the factum of recording made on 08.01.2009, prosecution also examined Amit Kashyap ( PW20). Though, this witness did not support the entire case of prosecution; however, he deposed that he had traveled on 8.1.2009 to PS Bhajanpura with complainant Deepak Aggarwal and Deepak Aggarwal was carrying secret camera concealed under his shirt. It has also come in the testimony of Deepak Aggarwal that on 8.1.2009 he was carrying a button camera. Amit Kashyap thus corroborates, recording to have been done on 8.1.2009 by Deepak Aggarwal using a spy camera. 9.3 Deepak Aggarwal has further deposed that after handing over the recording done by the use of button camera to officials of PS ACB, he was handed over an audio recorder which was shaped like a slim pencil box for recording conversation with accused S.P. Rawat. He associated one Anurag Gupta to pose as Mukesh Sharma, owner of Dream Beverages Restaurant and record conversation with S.P. Rawat. On 12.02.2009 this conversation was recorded between S.P. Rawat and Anurag Gupta, wherein S.P. Rawat demanded Rs. 12,000/ per month from the person posing as owner of Dream Beverages Restaurant. State Vs. Surya Prakash Rawat etc. Page 12 of 30 13 9.4 He has further deposed that he was called to PS ACB and in his presence two CDs containing the recordings of audiovideo interaction with R.K. Tyagi and audio recording of S.P. Rawat were played on a laptop and clarity of recordings were checked. CDs were seized in his presence, vide seizure memo Ex. PW12/B. It is noticed that seizure memo of the CD has been marked as PW12/PX1. (It seems that inadvertently the memo was not labelled as Ex. PW12/B at the time of testimony of Deepak Aggarwal and was subsequently marked as Ex. PW12/PX1 during his cross examination). A perusal of seizure memo PW12/PX1 reveals that CDs containing the recordings of 8.1.2009 and 12.02.2009 was played in the computer of PS ACB before Deepak Aggarwal in the presence of panch witness Siya Ram Meena and Kuldeep Kumar. On the confirmation of Deepak Aggarwal that the CDs contained the recordings which were made by him and decoy Anurag Gupta, CDs were signed by him and the panch witness. Both the panch witnesses Siya Ram Meena (PW18) and Kuldeep Kumar (PW17) have also proved the seizure memo. 9.5 Thus it can be concluded that contents of CDs were played before complainant on 20.02.2009 and he confirmed them to be containing the recordings as done by him and decoy Anurag Gupta on 08.01.2009 and 12.02.2009 respectively. Witness identified the CD Ex. P2 in the court on the basis of his signatures thereon which he had appended at the time of seizure of both the CDs. State Vs. Surya Prakash Rawat etc. Page 13 of 30 14 Though the CD was not played before the witness during his testimony in the court, yet he was not cross examined by Ld. defence counsel to suggest that the CD Ex. P2 did not contain the recordings of 8.1.2009 and 12.2.2009 correctly. The law laid down in Col. Ram Singh case ( supra ) does not hit the prosecution case as it has been proved by the prosecution that CDs were played before one of the makers of recording i.e. Deepak Aggarwal during investigation. 9.6 The arguments by Ld. defence counsel that there is no documentary evidence of visit of Deepak Aggarwal at PS ACB prior to 19.02.2009 and there is also no documentary evidence of handing over or taking over of recording devices, does not cut any ice with this court. The proceedings prior to 19.02.2009 at PS ACB cannot be said to be part of investigation. These proceedings were in the nature of verification of allegations made by a private person against public servants. There was no necessity to have made record of visits of complainant to the PS ACB, till he was not possessing credible evidence to commence investigation against two public servants. Similarly not making a record of handing over of instrument to the complainant, would not vitiate the subsequent investigation and evidence collected. Karnail Singh (PW27) in his cross examination deposed that a register was maintained regarding instruments issued to a particular person. The register also recorded entry regarding return of instruments. He also deposed that he was custodian of the State Vs. Surya Prakash Rawat etc. Page 14 of 30 15 recording devices. There was not even a suggestion made to the witness that he had not issued any recording device to the complainant. Defence also failed to summon the register, deposed by the witness to be maintained at PS ACB regarding issuance/return of recording devices. The challenge by defence to issuance of recording devices, thus, fails.
9.7 It was also argued that brother of complainant namely Krishan Kant, his business associate Deepak Sharma and employees of the restaurant have not been examined, though they were material witnesses. I do not subscribe to the arguments raised by Shri Verma. Material witness in the present was Deepak Aggarwal, from whom the demand was made and who had conducted the sting operation. Persons named above were only associated with the running of business. The fact of existence of restaurant is not disputed by the defence itself. It is the case of the defence that accused persons had challaned unauthorised running of restaurant for which complainant was enemical towards them. It has next been argued that Deepak Aggarwal is not a credible witness as he is facing several criminal cases. As observed in subsequent paras no.10, this court is of the opinion that testimony of Deepak Aggarwal has remained unshaken. The witness at some places even denied the prosecution case, despite cross examination by Ld. Additional PP. In my opinion this adds to the credibility of a witness, that he did not give a parrot like statement or State Vs. Surya Prakash Rawat etc. Page 15 of 30 16 reproduce his statement u/s 161 Cr. P.C. There is a ring of truth around his testimony which is corroborated by audio/video recordings.
9.8 Moreover the voices of accused persons contained in the CDs were identified by ACP Data Ram (PW24) under whom both the accused persons were posted at the time of recordings. Deepak Aggarwal ( PW12) during cross examination by Ld. Additional PP for the State denied that the CDs were prepared in his presence. This proves the credibility of witness, that he was independent minded and not amenable to tutoring. He could not be maneuvered to tow the prosecution line.
9.9 Another material witness to preparation of CDs from the recorded conversation is SI Karnail Singh (PW27). He has deposed that on 8.1.2009 he had handed over one audio recorder and one video recorder to Deepak Aggarwal. Both the recorders were returned to him on 3.2.2009 containing recording dated 8.1.2009 and 12.2.2009. He saved the recordings in his office computer in the presence of Deepak Aggarwal. Recordings were played on the office computer before the IO and the complainant on 19.02.2009 and CDs were prepared on 20.02.2009 and played before the complainant and the panch witness. Complainant confirmed the recordings to have been made by him and the decoy. Witness identifies CD Ex. P2 to have been prepared by him. On playing the CD in the court computer, he identified the files State Vs. Surya Prakash Rawat etc. Page 16 of 30 17 contained therein to have been transfered from the recording devices by him. He also proved seizure of the CDs prepared by him vide seizure memo dated 20.02.2009, Ex. PW12/PX1. This witness has faltered, as regards the date when recorders were handed over to complaint. However, in my opinion he can be given advantage on account of lapse of time between the proceedings and date of examination as witness.
9.10 Inspector Avinash Sharma (PW26) has deposed that both the accused persons were picked up from their respective houses and brought to PSACB, where recordings were played before them as contained in the CDs produced by SI Karnail Singh. After the CDs were played before the accused persons, panch witnesses and confirmation of the identity and voices of the accused persons, they were arrested and CDs were seized.
9.11 ACP Data Ram ( PW24) who was then posted as ACP Seelampur identified the voices of both the accused persons, as he was familiar with their voices. The witness also identified the picture of accused R.K. Tyagi in the CD when played in court. Ld. defence counsel has disputed the presence of witness on the ground that log book of his vehicle does not indicate a visit the PS ACB. I find no reasons to discredit the testimony of witness merely for the reasons that log book does not contain entries regarding his visit to PSACB. 9.12 The most material evidence as regards the authenticity State Vs. Surya Prakash Rawat etc. Page 17 of 30 18 and sanctity of recordings contained in CD is the examination at FSL. Dr. C.P. Singh (PW5) has proved his report Ex. PW5/A wherein he analysed two files contained in the CDs by waveform and spectrography. He has opined that both the files did not indicate any alteration in the audio recordings. During cross examination he clarified that this finding means, 'continuity of audio track'. He has further compared the voices contained in the file with specimen voice samples of accused Ram Kumar Tyagi and Surya Prakash Rawat. He has also opined that voices of the accused persons matched with their voice samples. V. Lakshmi Narsimha (PW9) in his report Ex. PW9/A has opined one of the voices contained in CD to be matching with the voice of complainant Deepak Aggarwal. The FSL reports are challenged by Ld. defence counsel on the ground that transcripts of recorded conversations mentioning the names of speakers were sent along with the CDs; this gave a lead to the scientists, who have merely given an opinion as desired by the IO. The argument is absolutely frivolous and meritless. The scientists have analysed the voices using scientific instruments and technology. During cross examination of PW5, he stated that he had brought the file which contained the spectrogrammes. No irregularity was pointed out by defence in the spectrogrammes. There is no reason to disbelieve the reports which have been prepared after scientific analysis. Another challenge is made to the FSL report on the ground that recording dated 8.1.2009 State Vs. Surya Prakash Rawat etc. Page 18 of 30 19 was an audiovideo recording which was split by the IO and only one file i.e. audio file was sent for analysis. This argument also lost its edge when Dr. C.P. Singh (PW5) in his cross examination deposed after looking into his file that the cassette contained a video file also, but he analysed only the audio file as IO did not ask him for a report on the video file. Similarly, PW9 in his cross examination deposed that it was possible to separate audio file from the original audio video file. I, thus, find no reason to disbelieve the FSL reports as well. 9.13 The defence counsels have also challenged the prosecution case on the ground that no audiovideo of audio recorders were given by PSACB to the complainant and that he had brought recorded CD which he handed over to the IO. To support this argument, Ld. defence counsels have relied upon status report Ex. PW25/DA which was submitted by IO/Inspector Ravinder Kumar Tyagi before the Hon'ble High Court. In the said report he had taken a stand that complainant had handed over CD at PS ACB. The argument raised by Ld. defence counsels does look impressive on the face of it, but loses sheen in the face of direct evidence of Deepak Aggarwal (PW12), Karnail Singh (PW27) and IO Avinash Sharma (PW26) to the effect that complainant was handed over recording devices. Moreover, ld. defence counsels did not confront Inspector Ravinder Tyagi (PW25) with the contents of his report Ex. PW25/DA regarding issue of CD having been handed over by the complainant or that the recording State Vs. Surya Prakash Rawat etc. Page 19 of 30 20 devices were not handed over to him. The document, thus, cannot be read, since no explanation was sought on this aspect from its author. 9.14 From the evidence as discussed above, this court is of the definite opinion that the CD, Ex. P2 which contains the recording of conversation between R.K. Tyagi and Deepak Aggarwal dated 8.1.2009 and the recording dated 12.2.2009 between S.P. Rawat and Anurag Gupta are reliable and credible piece of evidence. 10.1 Having held that CD Ex. P2 is admissible and reliable evidence, it shall now be examined whether the testimony of Deepak Aggarwal (PW12) and contents of transcripts of conversations as recorded in CD Ex.P2 constitute the offences charged against the accused persons. The testimony of Deepak Aggarwal (PW12) has been challenged on the ground that he has made major improvements from his statement made to the IO and his complaint. He has been confronted with the complaint Ex. PW12/A. However a perusal of his testimony made in the court and the complaint Ex. PW12/A leads this court to a view that the witness is a natural witness who has deposed an untutored statement, though with some embroidery and embellishment. He has also forgotten certain facts which ld. prosecutor reminded him by referring to his complaint. It is expected that testimony which is recorded almost five years after the occurrence cannot be parrot like. It is natural for a person to forget minor details of occurrence which had taken place about five years earlier. Minor State Vs. Surya Prakash Rawat etc. Page 20 of 30 21 embroidery and embellishment in the testimony of complainant are also expected and have to be separated ( as was held by Hon'ble Supreme Court of India in Ugar Ahir Vs State of Bihar AIR 1965 Supreme Court 277). Broad story of complainant as deposed in the court matches with his complaint, in as much, as he has deposed that R.K. Tyagi had been visiting his restaurant and putting pressure for demand of bribe for self & for SHO. Ld. defence counsel has put to him challans under Delhi Police Act issued by officials of PS Bhajanpura including one by accused R.K. Tyagi on 21.10.2008, 2.11.2008 and 15.12.2008 i.e. period during which complainant has deposed that R.K. Tyagi had been putting pressure on him to pay monthly protection money, as demanded by SHO, PS Bhajanpura. The documents put to the witness by the defence rather support the testimony of complainant, when he deposed that pressure was being built upon him to pay protection money to SHO, PS Bhajanpura.
10.2 The witness has further deposed that SI R.K. Tyagi demanded Rs. 5,000/ from him. Out of which was Rs. 2000/ was paid on the day of his visit, Rs. 3,000/ on some other occasion. Rs. 2500/ have paid on 8.1.09 when the recording was conducted. There is no corroborative evidence of the payment of Rs. 2,000/ and Rs. 3,000/. However, audio/video recording dated 8.1.2009 as contained in CD Ex. P2 and the transcripts of conversation Ex. PW16/A corroborate payment of Rs. 2500/ on 8.1.2009. In the recorded conversation State Vs. Surya Prakash Rawat etc. Page 21 of 30 22 purpose of demand has also been indicated. Complainant Deepak Aggarwal is heard requesting the accused to ensure that his customers in the cafe are not put to any trouble. Ostensibly, there is no demand for any specific amount voiced by accused R.K. Tyagi in the recorded conversation but a deeper analysis reveals that he made demand of Rs. 5,000/ He is heard telling the complainant that he can decide of his own about the quantum of full payment and has indicated the amount as 'five' by saying that he will come at 5.00 PM.
10.3 I, therefore, hold that prosecution has failed to prove beyond reasonable doubt that amounts of Rs. 2,000/ and Rs. 3,000/ were paid by the complainant to accused R.K. Tyagi on 19.12.2008 or 24.12.2008 respectively. However, prosecution has been able to prove beyond reasonable doubt that demand of Rs. 5,000/ was made by accused R.K. Tyagi as protection money for permitting the complainant to run his restaurant. Prosecution has also proved beyond doubt payment of Rs. 2500/ by complainant to accused R.K. Tyagi on 8.1.2009.
11.1 As regards accused S.P. Rawat, complainant Deepak Aggarwal (PW12) has deposed that he handed over the audio recording device to his friend Anurag Gupta, who posed as Mukesh Sharma, owner of Dream Beverages Restaurant and met SHO S.P. Rawat. Anurag Gupta recorded the conversation and handed over the device to Deepak Aggarwal who further handed over the same at PS State Vs. Surya Prakash Rawat etc. Page 22 of 30 23 ACB. On being cross examined by Ld. Additional PP he admitted the date of recording to be 12.2.2009, wherein S.P. Rawat had demanded Rs. 1000/ per cabin from Dream Beverages Restaurant which amount came to Rs. 12,000/. The transcript of this conversation Ex. PW26/G has been proved by IO/Inspector Avinash Sharma. Though, Anurag Gupta, who had posed as Mukesh Sharma was not available to the prosecution or to the investigator and similarly Shivji Lal panch witness to the transcript was also not examined by the prosecution; however, the conversation contained in CD Ex. P2 is available on court record. The recorded conversation was played in court in the presence of Karnail Singh (PW27) and ACP Data Ram (PW24). The transcript Ex. PW26/G was found to be correct as per the conversation. 11.2 The fact that Mukesh Sharma was not available for his evidence would not cause any dent to the FSL report or prosecution case as regards the voice of Surya Prakash Rawat contained in the conversation. The person to whom Surya Parkash Rawat is heard speaking has claimed himself to be owner of Dream Beverages Restaurant at C62, Bhajanpura, Delhi. Accused has discussed the entire location of premises with the said person. He has then sought details about nature of Restaurant and on being informed that it has twelve cabins for couples to sit, he demanded Rs. 1000/ per cabin i.e. Rs. 12,000/ in all, per month.
11.3 In the conversation recorded between S.P. Rawat and the State Vs. Surya Prakash Rawat etc. Page 23 of 30 24 person claiming to be Anurag Gupta, there is a reference to a person who had been previously collecting protection money. Accused S.P. Rawat is heard asking the decoy as to who visited the restaurant prior to 'langda'. Here it is direct reference to accused SI R.K. Tyagi, who walks with a limp. Thus, establishing that accused R.K. Tyagi had been collecting bribe/protection money from various restaurants in conspiracy with accused S.P. Rawat. This, corroborates the oral testimony to Deepak Aggarwal (PW12) that R.K. Tyagi demanded protection money/bribe on behalf of SHO. I, thus, hold that prosecution has proved the charge of conspiracy between the two accused persons, as regards demand and acceptance of illegal gratification from Deepak Aggarwal. There was apparently no conspiracy between the two as regards demand of Rs.12,000/ from decoy on 12.2.2009, as on the said date R.K.Tyagi stood transfered from P.S. Bhajanpura.
12.1 Reliance by defence on Subhash Chand Chauhan Vs CBI case (supra) is of no consequence. In the said case informant had been arrested u/s 20 NDPS Act and was found to be under pressure of CBI which could have manipulated the case against the accused. There is no such allegation in the present case that complainant acted at the instance of police officials.
12.2 In Tukaram S Dighole Vs Manikaro Shivaji Kokate case (supra) tapes were held susceptible to tampering, standard of proof State Vs. Surya Prakash Rawat etc. Page 24 of 30 25 about its authenticity and accuracy was held to be more stringent as compared to other documentary evidence. In the present case storage device is a CD and evidence of FSL experts has been found to be trust worthy.
12.3 In V. Kannan Vs State case (supra) it was held that court should be cautious that a honest and strict Government official can be falsely implicated by a vindictive person. In face of evidence as discussed in para no.10, that present case can not be said to be a case of vindictive complainant making false allegations. 12.4 In Hari Singh Yadav's case ( supra), it was held that complainant was enemical towards the accused. Nilesh Dinkar Paradkar's case (supra) would not be attracted to the facts of the present case. The voice identification report submitted by Dr. C.P. Singh (PW5) and V Laxmi Narasimha (PW9) have with stood the test of cross examination.
12.5 Reliance on law laid down in State, NCT of Delhi Versus Afsan Guru AIR 2005 SC 3820 cited by Shri Sanjay Soni, Additional P.P. is well placed. Though the original recording devices were not available and neither any certificate u/s 65B of Indian Evidence Act was available to support the evidence of correctness of recordings contained in the devices. However, in view of oral testimony of Karnail Singh (PW27) who had transfered the recordings from recording devices to computer and from computer to the CD, the evidence can be State Vs. Surya Prakash Rawat etc. Page 25 of 30 26 read as secondary evidence.
13. In the aforesaid facts and circumstances, both the accused persons are convicted for the offences punishable u/s 120B IPC and section 7 of the PC Act r/w section 120B of IPC and section 13(i) (d) of the PC Act punishable u/s 13(2) r/w sec. 120B of IPC with respect to demand and acceptance of illegal gratification from Deepak Aggarwal. Accused Surya Prakash is also convicted u/s 7 of the PC Act with respect to demand of Rs. 12,000/ as gratification from the person who posed as owner of Dream Beverages Restaurant.
Announced in the open Court (NAROTTAM KAUSHAL)
on 16.08.2014 SPECIAL JUDGE (PC ACT)05
(ACB), TIS HAZARI COURTS
DELHI
State Vs. Surya Prakash Rawat etc. Page 26 of 30
27
IN THE COURT OF SH. NAROTTAM KAUSHAL
SPECIAL JUDGE (PC Act)05, (ACB), (CENTRAL),
TIS HAZARI COURTS, DELHI
STATE
Versus
Surya Prakash Rawat
S/o D.S. Rawat
R/o 389/F, Pocket II, PhaseI
Mayur Vihar, Delhi.
Ram Kumar Tyagi
S/o Shri Banke Lal
R/o A1/66/74, East Gokalpur,
Delhi.
Corruption Case No. : 23/2012
FIR No. : 05/2009
Case Identification No.: 02401R0402332012
Police Station : Anti Corruption Branch
Under Section : 7/13 of Prevention of
Corruption Act, 1988
& 120B IPC
ORDER ON SENTENCE
1.1 Vide Judgment dated 16.08.2014, both the convicts have been
held guilty for the offence punishable u/sec. 120B IPC and section 7 of the PC Act r/w section 120B IPC and section 13(i) (d) of the PC Act punishable u/s 13 (2) PC Act r/w section 120B IPC with respect to demand and acceptance of illegal gratification from Deepak Aggarwal. 1.2 Convict Surya Prakash Rawat has also held guilty for offence u/s 7 PC Act with respect to demand of Rs. 12,000/ as gratification from the person who posed as owner of Dream Beverages Restaurant.
2. Shri Sanjay Soni, Ld. Additional PP for State has prayed for State Vs. Surya Prakash Rawat etc. Page 27 of 30 28 stringent sentence. It is submitted that the convicts who were working as SHO and Division Officer at PS Bhajanpura, were permitting unauthorised running of restaurant/cafe in exchange of illegal gratification by assuring protection to the persons who were running such restaurant. They do not deserve any lenient approach. Imposition of high fine has also been prayed, to serve as deterent.
3. Shri Yogesh Verma, Ld. Counsel for convict R.K. Tyagi has prayed for a lenient approach. It is submitted that he is 63 years old and has now retired from service. His sixty years old wife suffers from spinal problem. They have a 10 years old son, who is studying in school. Convict is the sole bread earner and the only adult male person to take care of the family.
4. Shri Satish Tamta Ld. counsel for convict S.P. Rawat has also prayed for a lenient approach. It is submitted that the convict has not faced any departmental or criminal proceeding, prior to the present occurrence. His career has been jeopardised, as his chances of promotion have been curtailed. In the house search which followed lodging of FIR, there was no indication of any disproportionate assessts. His wife and son are dependent upon him. There shall be immense loss of support and finance to the family, on his detention in jail. It is, therefore, prayed that lenient approach be adopted.
5.1 I have heard the Ld. counsels. I find merits in the argument of Shri Soni that on account of misuse of position as public servants by the SHO and Division Officer, mushrooming of unauthorised restaurants/cafes was encouraged. In stead of assisting the MCD in closing such restaurants, law enforcing agency was permitting their proliferation in lieu of personal State Vs. Surya Prakash Rawat etc. Page 28 of 30 29 favours.
5.2 However, considering the family circumstances of the convicts as noticed above, this court is not inclined to take a very stringent view.
In my considered opinion, ends of justice shall be served by awarding the following sentences to convicts.
5.3 Convict R.K. Tyagi for demand and acceptance of bribe from Deepak Aggarwal (A) Section 120B IPC Convict R.K. Tyagi shall undergo RI for a period of two years and shall be liable to pay fine of Rs. 10,000/ for this offence. In default of payment of fine, he shall undergo SI for a period of six months.
(B) Section 7 of PC Act r/w section 120B IPC Convict R.K. Tyagi shall undergo RI for a period of two years and shall be liable to pay fine of Rs. 10,000/ for this offence. In default of payment of fine, he shall undergo SI for a period of six months.
(C) Section 13 (i) (d) punishable u/s 13(2) PC Act r/w section 120B IPC Convict R.K. Tyagi shall undergo RI for a period of three years and shall be liable to pay fine of Rs. 15,000/ for this offence. In default of payment of fine, he shall undergo SI for a period of six months.
5.4 Convict Surya Prakash Rawat for demand and acceptance of bribe from Deepak Aggarwal (A) Section 120B IPC
Convict Surya Prakash Rawat shall undergo RI for a period of two years and shall be liable to pay fine of Rs. 10,000/ for this offence. In default of payment of fine, he shall undergo SI for a period of six months. State Vs. Surya Prakash Rawat etc. Page 29 of 30 30 (B) Section 7 of PC Act r/w section 120B IPC Convict Surya Prakash Rawat shall undergo RI for a period of two years and shall be liable to pay fine of Rs. 10,000/ for this offence. In default of payment of fine, he shall undergo SI for a period of six months. (C) Section 13 (i) (d) punishable u/s 13(2) PC Act r/w section 120B IPC Convict Surya Prakash Rawat shall undergo RI for a period of three years and shall be liable to pay fine of Rs. 15,000/ for this offence. In default of payment of fine, he shall undergo SI for a period of six months. Convict Surya Prakash Rawat for demand of bribe from owner of Dream Beverages Restaurant (D) Section 7 of PC Act.
Convict Surya Prakash Rawat shall undergo RI for a period of two years and shall be liable to pay fine of Rs. 10,000/ for this offence with respect to demand of Rs. 12,000/. In default of payment of fine, he shall undergo SI for a period of six months.
6. All the sentences shall run concurrently. Benefit u/s 428 Cr.P.C. be accorded to both the convicts. Ordered accordingly.
File be consigned to Record Room.
Announced in the open Court (NAROTTAM KAUSHAL)
on 21.08.2014 SPECIAL JUDGE (PC ACT)05
(ACB), TIS HAZARI COURTS
State Vs. Surya Prakash Rawat etc. Page 30 of 30