Delhi District Court
State vs . Rajeev Kumar on 9 April, 2021
1
In the Court of Sh. Dig Vinay Singh: Special Judge (PC Act)
(ACB)-02 Rouse Avenue Courts, Delhi
In re:
CNR NO. DLCT110006362019
CC NO. 147/2019
State Vs. Rajeev Kumar
FIR No. 19/2010
P.S Anti Corruption Branch
U/s 7 of POC Act, 1988
State
Vs.
Rajeev Kumar
S/o Sh. Chhote Lal
R/o Quarter No. 2, Type-II, Police Colony
Samaypur Badli, Delhi.
Date of institution 09.01.2019
Date of arguments 08.04.2021
Date of judgment 09.04.2021
JUDGMENT
1. The abovenamed sole accused stood charge sheeted for offences U/s 7 & 13 of POC Act 1988. At the relevant time he was Sub Inspector of Delhi Police posted at Police Station Burari, Delhi. He was investigating officer of FIR No. 92 of 2010 registered U/s 420/467/468/471 of IPC in the said police station, in which one Ashu Khan was an accused. The complainant, namely Aslam Khan, is cousin brother of Ashu Khan.
1.1. On 26.04.2010 complainant Aslam Khan came to police station Anti-
Judgment; Date 09.04.2021; CNR No. DLCT110006362019; CC No. 147/2019; State Vs. Rajeev Kumar; FIR No. 19/2010; P.S ACB;
Page 1 of 41 2Corruption Branch (ACB) with a written and signed complaint. It is alleged in the complaint that his cousin Ashu Khan was running a motor work shop by the name of AS Motors within the jurisdiction of PS Burari and that the accused SI Rajiv used to demand bribe from him. When Ashu Khan failed to give bribe, the accused in connivance with certain local people got a false case registered against Ashu Khan and also got the workshop shut down. In order to close the case against Ashu Khan under the above-mentioned FIR allegedly the accused demanded Rs. 1 Lakh from the complainant Aslam Khan and had called the complainant Aslam Khan on 26.04.2010 with Rs. 50,000/-. Aslam Khan carried a sum of Rs. 20,000/- to ACB in the denomination of twenty currency notes of Rs. 1000/- each. The complainant also alleged that he had audio recorded the conversation with accused on his phone, which he claimed to provide subsequently. This complaint of Aslam Khan was verified by Panch witness Sh. A. K. Meena who was on Panch duty in PS ACB on that day. Thereafter, currency note numbers were noted down by Inspector Rajesh Kumar in the pre-raid report; phenolphthalein powder was applied on the currency notes and; demonstration of the properties of the said powder was given to the Panch witness as well as the complainant. Thereafter, the raiding team comprising of Inspector Rajesh, Inspector Rajender Jain, SI Anil Kumar, Ct. Anand Prakash, Ct. Kuldeep, Panch witness and, the complainant left ACB for the designated spot where the bribe transaction was to be performed. The initial designated place for exchange of bribe was at petrol pump, Burari. At 4.35 PM a call was received from the mobile phone of accused bearing no. 9650610617, on the mobile phone of Judgment; Date 09.04.2021; CNR No. DLCT110006362019; CC No. 147/2019; State Vs. Rajeev Kumar; FIR No. 19/2010; P.S ACB;
Page 2 of 41 3the complainant bearing no. 9811966248, and the complainant informed the raid officer Inspector Rajesh that the accused asked the complainant to come at Wazirabad red light on ring road instead of petrol pump, Burari. After about 3-4 minutes once again the accused called the complainant and this time the accused asked the complainant to come at Petrol pump located on the ring road at Majnu Ka Tilla, Delhi. The raiding team reached around 10-15 meters away from the said petrol pump, Majnu Ka Tilla and took position. The complainant and Panch witness went towards the petrol pump. At 4.45 PM the complainant and Panch witness returned to the raid officer and told the raid officer that the accused was at the spot in a white Zen Car bearing no. 3133, claiming that it was parked there, but accused left the spot without talking to the complainant and despite the fact that the accused saw the complainant and had called the complainant towards him by signaling the complainant to come towards him. The complainant also told the raid officer that because of the signal of accused the complainant and Panch witness had crossed the road, but he left without talking to them. The Panch witness also told the raid officer that he also saw the white Zen car when it was leaving, but he could see only its partial number '3133' and it was the complainant who had told the Panch witness that accused was sitting in the said car. Accordingly, the raid failed on that day.
1.2. The complainant was then directed by the raid officer to immediately inform the ACB in case there was any further communication between the complainant and the accused regarding bribe. The Judgment; Date 09.04.2021; CNR No. DLCT110006362019; CC No. 147/2019; State Vs. Rajeev Kumar; FIR No. 19/2010; P.S ACB;
Page 3 of 41 4raiding team members, the complainant and Panch witness were all directed to maintain secrecy in this regard. The complaint was kept pending.
1.3. The complainant once again went to ACB on 29.04.2010 along with one more written complaint and told the raid officer that on the evening of 26.04.2010 the accused had called the complainant on his phone and told the complainant that the accused suspected that a complaint had been filed against him in ACB and therefore he would not talk to the complainant any further. Thereafter, Ashu Khan spoke to the accused on phone and accused told the same thing to Ashu Khan also, stating that the complainant had taken along Anti- Corruption Branch officials on 26.04.2010. The accused then agreed to take bribe through one Salim Bhai who was known to the complainant. Thereafter, the complainant and his cousin waited for further signal from the accused, but did not receive any. And then they understood that the accused suspected regarding complaint in ACB and therefore he might not accept any bribe. On this day, the complainant also carried two CDs allegedly containing audio recording of conversations between accused, the complainant and Ashu Khan, along with its transcript.
1.4. On this complaint, the present FIR was registered, after verification of its contents through another Panch witness namely M. K. Goel. The two CDs were marked as Mark A & B. The CDs were played on the office computer by the raid officer and matched with the transcript. The CD Mark A was kept in a parcel and sealed. The second CD Mark B was kept in open condition for further Judgment; Date 09.04.2021; CNR No. DLCT110006362019; CC No. 147/2019; State Vs. Rajeev Kumar; FIR No. 19/2010; P.S ACB;
Page 4 of 41 5investigation.
1.5. During investigation the records i.e., copy of earlier FIR no. 92/10 of PS Burari; daily diary register; posting order of accused; duty roster of accused, were collected. During investigation, voice of accused was also got identified through one Inspector Hari Kishan and another police official Suresh posted in PS Burari, as contained in the CD.
1.6. The registration certificate of the car bearing no. DL2C L 3133 was collected and it was found to be in the name of A. S. Makhija. It was found that this car was sold to one Sanjeev Malhotra on 19.07.2002 and Sanjeev Malhotra was a car dealer who had further sold this car to one Baldev Singh and Baldev Singh got the transfer papers i.e., Form no. 29 & 30 prepared in the name of Harkamal Singh. During investigation Notice U/s 91 Cr.P.C was issued to accused and accused gave in writing that he purchased the car and was using the car for one year prior to occurrence of this case.
1.7. The mobile phone Micromax model with dual sim and one memory card, used by Ashu Khan, in which allegedly audio recording of conversation with accused was recorded, was handed over by the complainant to the IO on 08.07.2010. The SIM number used by Ashu Khan was 9899720106. It was found during investigation that this SIM number was issued in the name of one Asif Ali, but this number was being used by Ashu Khan. Allegedly this memory card contained original audio recordings done by Ashu Khan for demand of bribe by the accused.
Judgment; Date 09.04.2021; CNR No. DLCT110006362019; CC No. 147/2019; State Vs. Rajeev Kumar; FIR No. 19/2010; P.S ACB;
Page 5 of 41 61.8. During investigation, on 15.03.2011, another mobile phone make Samsung black colour model SGHE 251 was seized by the investigating agency from one Aman Khan, as this mobile instrument was being used by the complainant Aslam Khan with SIM No. 9811966248. This SIM was purchased in the name of Mohammad Gurfam a relative of the complainant. At the time of seizure of this Samsung mobile phone, neither the SIM card nor the memory card were there and, they were stated to have been lost by Aman Khan.
1.9. During investigation, the call details and customer application form of the mobile phone of the accused, the complainant and, Ashu Khan were collected. The call details revealed that the accused was in touch with the complainant as well as Ashu Khan during the relevant period through mobile phone and it was also found that the location of mobile of accused was at the spot where trap was laid on 26.04.2010.
1.10. During investigation, voice samples of the accused; the complainant and; Ashu Khan were also collected at FSL Rohini. The FSL result dated 30.08.2011 confirmed the voice in the questioned audio recording to be that of the accused; the complainant and; Ashu Khan, respectively. Sanction U/s 19 of POC Act, 1988 was also obtained against the accused.
2. Upon filing of the charge sheet, cognizance for offences U/s 7 & Sec.
13 of POC Act were taken by the Ld. Predecessor. However, a charge U/s 7 of POC Act, 1988 was only made out against the accused prima facie and no charge U/s 13 was made out. Accordingly, a charge U/s Judgment; Date 09.04.2021; CNR No. DLCT110006362019; CC No. 147/2019; State Vs. Rajeev Kumar; FIR No. 19/2010; P.S ACB;
Page 6 of 41 77 of POC Act, 1988 was framed against the accused, to which the accused pleaded not guilty and claimed trial.
3. In support of its case prosecution examined total 26 witnesses.
3.1. PW1 HC Suresh Kumar, posted at PS Burari, on 10.06.2010 supplied photocopies of Daily Diary Register containing DD No. 15B dated 25.04.2010 recorded at 9.30 AM (Ex.PW1/C) regarding departure of accused for investigation of FIR No. 92/10; DD No. 7B dated 26.04.2010 recorded at 8.30 AM Ex.PW1/D, regarding departure of accused to Delhi High Court in MC No. 1194 of 2010; posting order of accused Ex.PW1/E and; duty roster of accused for the dates 24 to 26.04.2010, which were seized by the IO vide seizure memo Ex.PW1/A in presence of Panch witness Mr. Ombir Dahiya (PW6). HC Suresh also heard the questioned audio recordings from the CDs during investigation when total 10 audio files were played before him in ACB and he identified voice of accused, being conversant with the voice of accused, regarding which observation memo Ex.PW1/B was prepared and also the transcript was matched. In the testimony of PW1, the CD Ex. P1 was played in the Court and all the ten audio files were played and the witness identified the voice in the CD as that of accused. The witness also identified that the words ascribed to the accused in the transcript Ex.PW3/B were spoken to by the accused and he was conversant with his voice as he was posted in the same police station and they had interacted during official course of duty.
3.2. PW6 Ombir Dahiya was on Panch witness duty on 10.06.2010 and Judgment; Date 09.04.2021; CNR No. DLCT110006362019; CC No. 147/2019; State Vs. Rajeev Kumar; FIR No. 19/2010; P.S ACB;
Page 7 of 41 8he was a witness to production of documents by PW1 as well as to the identification of voice of accused by PW1 in PS ACB on that day. It is noteworthy here that this witness deposed in his examination in chief that though PW1 identified voice of accused in the audio recordings on 10.06.2010, but PW1 had further said that the final conclusion can be given by the expert only in respect of the voice.
3.3. PW2 ASI Rajeev Kumar was posted at PS Burari as MHC(R) and during investigation of this case he handed over a copy of FIR No. 92/10 Ex.PW-2/B, which the accused was investigating, along with copy of register no.16 Ex.PW2/C containing address of accused, both of which were seized by the investigating officer vide seizure memo Ex.PW-2/A. 3.4. PW-3 Inspector Hari Krishan was working as inspector investigation in PS Burari and on 06.05.2010 he went to PS ACB; heard the conversation in question in PS ACB from the CD and he also identified the voice of accused in the questioned conversation in presence of Panch witness Naresh Chand (PW-7), regarding which observation memo Ex. PW-3/A was prepared. The witness also deposed that the audio conversation confirmed to the transcript Ex. PW-3/B. The witness deposed that though he identified the voice of accused, but the final opinion can be given only by the expert. The witness heard the audio files during his deposition in the court from CD Ex. P1 also and deposed that it contained voice of accused.
Judgment; Date 09.04.2021; CNR No. DLCT110006362019; CC No. 147/2019; State Vs. Rajeev Kumar; FIR No. 19/2010; P.S ACB;
Page 8 of 41 93.5. PW-7 Naresh Chand was the Panch witness on duty, in whose presence PW-3 identified the voice of accused in PS ACB and he deposed about it.
3.6. PW-12 ASI Mahipal was also posted in PS Burari at the relevant time. He deposed that there used to be a diary maintained in the PS which contained phone numbers of the police officials posted in the PS so that they could be contacted in case of need and, he supplied a copy of that diary to the investigating officer on 01.12.2010, which was seized vide memo Ex.PW-12/A. The witness confirmed that the mobile number used by the accused at the relevant time was 9650610617.
3.7. PW-20 HC Jai Prakash was posted as Malkhana Moharrir in PS Civil lines on 29.04.2010. He deposed that on that day inspector Rajesh Kumar deposited one sealed parcel sealed with the seal of RK in the malkhana vide entry Ex.PW-20/A in register no. 19. He also deposed that on 08.07.2010 inspector Rajender Kumar deposited another sealed parcel sealed with the seal of RKJ in the malkhana vide entry Ex.PW-20/B in register no. 19.
3.8. PW-21 ASI Ram Kumar deposed that he was posted as Malkhana Moharrir in PS Civil lines on 17.01.2011. On that day inspector Rajender deposited two sealed parcels sealed with the seal of RKJ mark RS-I and RS-II in the malkhana vide entry Ex.PW-21/A in register no. 19. He also deposed that on 11.03.2011 inspector Rajender deposited four sealed parcels sealed with the seal of RKJ in the malkhana vide entry Ex.PW-21/B in register no. 19. He also Judgment; Date 09.04.2021; CNR No. DLCT110006362019; CC No. 147/2019; State Vs. Rajeev Kumar; FIR No. 19/2010; P.S ACB;
Page 9 of 41 10deposed that on 15.03.2011 inspector Rajender deposited one sealed parcel sealed with the seal of RKJ in the malkhana vide entry Ex.PW-21/C in register no. 19. He also deposed that on 31.05.2011 one sealed parcel sealed with the seal of RK and five sealed parcels sealed with the seal of RKJ with one open envelope containing transcript and FSL form were handed over to Constable Anil to be taken and deposited in FSL Rohini vide RC No.65/21/11 Ex.PW- 21/D, and that Const. Anil after depositing the parcels in the FSL deposited receipt Ex. PW-21/E in the malkhana. The witness also deposed that on 18.10.2011, Ct. Kuldeep came and deposited six sealed parcels sealed with the seal of FSL vide entry in Register no. 19 Ex.PW-21/F. 3.9. PW-11 ASI Anil Kumar deposed that he carried total six sealed parcels; transcription and; FSL Form from the malkhana of PS Civil lines and deposited the same in FSL Rohini, obtained receipt thereof, which was deposited in the malkhana on 31.05.2011.
3.10. PW-16 HC Kuldeep deposed that on 18.10.2011 on instructions of IO he collected six sealed parcels containing exhibits of the case, which were sealed with the seal of FSL, and one sealed envelope containing FSL result, from FSL Rohini and, deposited them in the malkhana of PS Civil lines.
3.11. PW-19 ASI Chandra Singh deposed that he was posted as Malkhana Moharrir in PS Civil lines on 23.11.2011 and he handed over one parcel sealed with the seal of FSL along with FSL form and photocopy of sample seal to HC Dinamani for depositing the Judgment; Date 09.04.2021; CNR No. DLCT110006362019; CC No. 147/2019; State Vs. Rajeev Kumar; FIR No. 19/2010; P.S ACB;
Page 10 of 41 11same in the FSL vide RC No. 148/21/11, Ex.PW-19/B, and HC Dinamani deposited its receipt Ex.PW-19/C, regarding which he made entry in register no. 19 Ex.PW-19/A. This witness also deposed that on 01.02.2012 Constable Ram Swaroop deposited one sealed parcel sealed with the seal of FSL under entry Ex.PW-19/D and the FSL result was handed over by Ct. Ram Swaroop to the IO.
3.12. PW-17 HC Ram Swaroop deposed that on 01.02.2012 on the instructions of IO he collected one sealed FSL result and one sealed parcel, both sealed with the seal of FSL, and deposited them in the malkhana of PS Civil lines.
3.13. PW-5 Mahender Singh deposed that on 15.03.2011 he was on Panch duty witness at PS ACB and on that day in his presence the accused handed over copy of RC of his car Ex. PW-5/A, which was signed by this witness and then seized by the IO vide seizure memo Ex. PW-5/B. The witness also deposed that on that very day in the evening one Aman Khan came to PS ACB who produced one mobile phone make SAMSUNG to the IO which was seized by the IO after sealing the same vide seizure memo Ex. PW-5/C. The witness identified the said mobile phone in the court as Ex. P2.
3.14. PW-9 Sanjeev Malhotra deposed that he purchased Maruti car No. DL-2CL-3133 from one A. S. Sukhija and it was sold to one Baldev Singh who further sold it to Harkamal Singh S/o. Kuldeep Singh and the documents regarding transfer of car were executed directly in the name of Harkamal Singh by A. S. Sukhija. During investigation he supplied photocopies of those transfer documents, Judgment; Date 09.04.2021; CNR No. DLCT110006362019; CC No. 147/2019; State Vs. Rajeev Kumar; FIR No. 19/2010; P.S ACB;
Page 11 of 41 12which were seized by the IO vide seizure memo Ex.PW-9/A. The delivery receipt of the car is proved by the witness as Ex.PW-9/D. 3.15. PW-14 Kishori Lal was on Panch witness duty in PS ACB on 17.01.2011. On that day in presence of this witness accused gave reply to the notice U/s 91 Cr.P.C in writing Ex.PW-14/A and accused also consented to give his voice sample vide consent memo Ex.PW-14/B. Thereafter this witness, the accused and investigating officer went to FSL Rohini where voice sample of accused was recorded in two cassettes which were signed by this witness and the cassettes were sealed by the IO with the seal of RKJ. The witness also signed the parcel. The cassettes were then taken into possession vide seizure memo Ex. PW-14/C. During his testimony the witness identified the cassettes in the court as Ex. P9 and P11.
3.16. PW-18 Md. Gurfan deposed that Aman @ Bhura was his nephew and one mobile SIM no. 9811966248 was obtained on the ID card of this witness, but it was being used by Aman. The witness identified the customer application form of the said mobile no. as Ex.PW-18/B and a copy of his driving licence submitted while applying for the mobile connection Ex.PW-18/A. 3.17. PW-22 Charan Jeet was on Panch witness duty in PS ACB on 01.05.2012. In his presence the accused was formally arrested vide arrest memo Ex.PW-22/A and he was released on bail as he was on anticipatory bail.
3.18. PW-13 Tarun Pal was on Panch witness duty in PS ACB on 08.07.2010. In his presence complainant Md. Aslam produced one Judgment; Date 09.04.2021; CNR No. DLCT110006362019; CC No. 147/2019; State Vs. Rajeev Kumar; FIR No. 19/2010; P.S ACB;
Page 12 of 41 13mobile phone black colour make Micromax with battery and memory card in it. However, SIM card was not there in the phone. The said phone was taken into possession by the IO after sealing it with the seal of RKJ vide seizure memo Ex.PW-10/D. The witness identified the mobile phone instrument, battery and memory card in the court as Ex. P6.
3.19. PW-15 Mukesh Kumar Verma was on Panch witness duty in PS ACB. In his presence voice samples of the complainant Md. Aslam and his cousin Ashu Khan were recorded in FSL Rohini. The witness identified the audio cassettes on which sample voices were recorded as Ex. P4, P13, P15 & P17. The witness deposed that all the four cassettes and the parcels in which they were sealed were signed by him after the voice samples were recorded at FSL Rohini in his presence.
3.20. PW-4 Anand Kishore Meena was the Panch witness on duty in PS ACB on the date of raid i.e., on 26.04.2010. The witness deposed that on that day complainant produced a written complaint in Hindi bearing signature of the complainant in English, Ex.PW4/A. Then this witness confirmed the facts from the complainant and counter signed the complaint. The witness had brought Rs. 20,000/-, which were treated with phenolphthalein powder and properties of the same were explained and demonstrated by the IO. The witness then deposed about proceeding for raid and failure of raid as the accused did not turn up. The witness deposed that when initially the raiding team left for Burari, complainant received a telephonic call from the accused and then they reached near petrol pump, Majnu Ka Tilla.
Judgment; Date 09.04.2021; CNR No. DLCT110006362019; CC No. 147/2019; State Vs. Rajeev Kumar; FIR No. 19/2010; P.S ACB;
Page 13 of 41 14There he along with complainant were crossing the road when this witness saw a white Zen car bearing registration no. 3133 which was on the other side of the road and which crossed the road and then the complainant told this witness that accused was inside the car and the accused left. In the cross examination the witness denied the fact that the complainant did not tell this witness about having seen the accused at the raiding spot and he also denied that no Zen car with registration no. 3133 came to the spot. Since the raid failed, there is no point in discussing the deposition of this witness any further.
3.21. PW8 Inspector Anil Kumar was also one of the raiding team members and he simply deposed about proceeding for raid and failure of raid.
3.22. The complainant Mohd. Aslam was examined as PW10 in this matter, but he turned hostile on all material aspects of the case and did not support the case of prosecution. His testimony shall be discussed hereinbelow at appropriate stage, to avoid repetition.
3.23. PW24 ACP Rajesh Kumar was the initial raid officer. He deposed about the complainant coming to the office of ACB on 26.04.2010 with complaint Ex.PW4/A and regarding raid, which failed. The witness deposed that the accused called up the complainant twice on that day in which the place of taking money by him was changed, ultimately to petrol pump, Majnu Ka Tilla. He deposed that when the raiding team reached near Petrol pump, Majnu Ka Tilla, the complainant told the witness that the complainant had received Judgment; Date 09.04.2021; CNR No. DLCT110006362019; CC No. 147/2019; State Vs. Rajeev Kumar; FIR No. 19/2010; P.S ACB;
Page 14 of 41 15another telephonic call from the accused in which the accused had called the complainant on the other side of the road in front of petrol pump and then the complainant and Panch witness went there. Subsequently, both of them returned and the complainant said that the accused left in the car without meeting him. The complainant again came to PS ACB on 29.04.2010 and also handed over two CDs containing copies of conversation by the accused with the complainant and Ashu Khan and also handed over the transcript of the same Ex.PW3/B. The conversation was played in the police station and was matched with the transcript. The complainant had already marked the two CDs as A & B before he brought them to the IO and the same were seized vide memo Ex.PW10/C. During investigation the voice of accused was got identified through the officials posted at PS ACB and thereafter this witness was transferred. There is no need of discussing other minute details deposed by this witness as to the initial raid, since it failed. This witness admitted in his cross examination by the accused that neither he saw the accused till the time investigation remained with him, nor he called the accused to join the investigation and he did not see the accused at the place of raid through his own eyes. He also deposed that the accused was not chased on that day and the complainant did not tell as to on which instrument the CD were prepared containing the audio recording. He also admitted that the complainant did not hand over the original instrument on which the audio was recorded. During the time investigation remained with this witness, he did not even call for the car of accused to show the car to the Panch witness or the complainant to confirm whether both Judgment; Date 09.04.2021; CNR No. DLCT110006362019; CC No. 147/2019; State Vs. Rajeev Kumar; FIR No. 19/2010; P.S ACB;
Page 15 of 41 16of them saw the same car. Admittedly, certificate U/s 65B of Evidence Act was not obtained as to the preparation of the two CDs and there was no investigation done as to on which instrument the two CDs were prepared.
3.24. PW26 Inspector Rajender Kumar received further investigation of this case from 12.05.2010 onwards. During investigation this witness seized the DD register; Duty roster; posting order of accused; documents pertaining to the ownership and transfer of the car in question. The witness deposed that on 08.07.2010 complainant produced one mobile phone make Micromax along with its memory card which contained six recordings and the said mobile phone and memory card were sealed with the seal of RKJ and taken into possession vide seizure memo Ex.PW10/D. The witness collected customer application forms and call detail records of the mobile phone numbers in question as Ex.PW26/A1 to A32 along with certificate U/s 65B of Evidence Act, Ex.PW26/B. The witness also deposed that on 17.01.2011 he gave a notice U/s 91 Cr.P.C, Ex.PW14/A, to accused when the accused had come to join investigation in PS ACB, upon which accused gave his reply Ex.PW26/C regarding use of car. The accused also consented to give his voice sample vide Ex.PW26/E and then his voice sample was recorded at FSL, Rohini, in two audio cassettes Mark RS1 & RS2, which were taken into possession vide seizure memo Ex.PW14/C after sealing the same with the seal of RKJ. The witness also deposed that during investigation voice samples of complainant Mohd. Aslam Khan and Ashu Khan were also recorded Judgment; Date 09.04.2021; CNR No. DLCT110006362019; CC No. 147/2019; State Vs. Rajeev Kumar; FIR No. 19/2010; P.S ACB;
Page 16 of 41 17on 11.03.2011 in audio cassettes Mark MA1 & MA2, and AK1 & AK2, respectively, which were taken into possession vide seizure memo Ex.PW10/E & 15/A, respectively after sealing the same with his seal of RKJ. He also deposed that on 15.03.2011 Aman Khan produced mobile phone make Samsung which was being used by the complainant at the relevant time. But it was without SIM and memory card and it was also seized after sealing the same vide memo Ex.PW5/C. 3.25. PW25 Inspector Satyender Vashisht was further investigating officer of the case w.e.f. 11.01.2014 and he deposed that he prepared draft charge sheet and thereafter he was transferred.
3.26. Further investigation was taken over by PW23 Inspector Rohtash Kumar w.e.f. 12.01.2017. This witness deposed that when he took over further investigation of this case, he found that draft charge sheet was already prepared and even the requisite sanction was on the file. But on the advise of senior police officers and Prosecution branch, afresh sanction was sought and obtained as the previous sanction was obtained in the year 2013 and then after obtaining afresh Sanction order Ex.PW23/A, charge sheet was filed.
3.27. It may be mentioned here that Ashu Khan was not examined as he was not traceable despite several attempts by the investigating agency and despite repeated processes sent by the Court.
4. On completion of prosecution evidence, all the incriminating evidence was put to the accused in his examination U/s 313 Cr.P.C., to which the accused generally denied the evidence against him.
Judgment; Date 09.04.2021; CNR No. DLCT110006362019; CC No. 147/2019; State Vs. Rajeev Kumar; FIR No. 19/2010; P.S ACB;
Page 17 of 41 18The accused admitted that he was investigating officer of FIR No. 92/2010 lodged against Ashu Khan in PS Burari and it was a dispute between landlord and tenant in which one Rajiv Tyagi and Rajiv Pandey were landlords and the shop of Ashu Khan was temporarily closed. The accused claimed that the questioned audio recordings for the relevant dates i.e., 24.04.2010 to 26.04.2010 did not contain his voice. When the accused was questioned that he used mobile no. 9650610617 at the relevant time, the accused expressed ignorance in his statement claiming that he did not remember. Regarding his written reply Ex.PW26/C & E on the notice U/s 91 Cr.P.C the accused claimed that he was made to write and sign the document in ACB under duress. Similarly, the accused claimed that he was forced to give his voice sample at FSL, Rohini. Qua the Sanction U/s 19 of POC Act, the accused replied that it was a matter of record. Accused denied that he ever spoke to the complainant on 26.04.2010 or that he was present at the place of raid. Accused claimed that it is a false case against him claiming that since he was investigating an FIR against Ashu Khan, this false complaint was made against him to scuttle that investigation. While claiming innocence, the accused claimed that the witnesses of prosecution were false and interested witnesses. The accused however did not opt to lead any evidence in his defence.
5. Ld. Counsel for the accused argued that since Ashu Khan has not been examined, as he was not available, the complainant turned hostile and, since the raid failed, the case of prosecution is not proved at all. It is also argued that in any case ingredients of Sec. 7 Judgment; Date 09.04.2021; CNR No. DLCT110006362019; CC No. 147/2019; State Vs. Rajeev Kumar; FIR No. 19/2010; P.S ACB;
Page 18 of 41 19of POC Act are not fulfilled and, in that regard, he places reliance upon the following two cases: -
1. Malkiyat Singh & anr. Vs. State of Punjab AIR 1970 SC 713 and;
2. Dasrath Singh Chauhan Vs. CBI AIR 2018 SC 4720.
6. On the other hand, Ld. Prosecutor for the State argues that even if the raid failed, the case of prosecution stands proved from the audio recordings which contains voice of accused as confirmed by the FSL result and the colleagues of accused.
7. In the case of Malkiyat Singh (Supra), the facts were that a truck carrying paddy was stopped 32 miles prior to its reaching Delhi, i.e. within the limits of another State. At the relevant time, export of paddy outside that State was prohibited under Essential Commodities Act, 1955. It was in these circumstances, Hon'ble Supreme Court held that since the truck had not crossed the border of that State, it was merely a preparation stage and no offence and no attempt to commit any offence took place.
8. In the case of Dasrath Singh Chauhan (Supra) it is held by Hon'ble Supreme Court that in order to attract the rigors of Sec. 7, 13(2) r/w 13(1)(d) of PC Act, the prosecution was under a legal obligation to prove the twin requirements of "demand and acceptance of bribe money by the accused", and the proving of one alone but not the other, was insufficient. It was so observed in para 32 of the said judgment, categorically. In that case, facts were that the complainant applied for an electric connection and met Inspector of Electricity Supply Undertaking. Allegedly, the Judgment; Date 09.04.2021; CNR No. DLCT110006362019; CC No. 147/2019; State Vs. Rajeev Kumar; FIR No. 19/2010; P.S ACB;
Page 19 of 41 20Inspector demanded Rs. 4000/- as bribe. On the date of raid, when the complainant along with Panch witness went to give bribe the Inspector told the complainant to give the money to one 'R', who accepted the money and was then caught by the raiding team. During trial, the Inspector and his co-accused were both charged U/s 120 B of IPC also besides the offences under PC Act. However, both the accused were though acquitted of the charge of conspiracy, and 'R' was acquitted of all the charges, the trial Court convicted the Inspector alone under PC Act offences. Hon'ble Supreme Court while acquitting the Inspector / appellant, observed that once 'R' stood acquitted of all the charges, the Inspector also was bound to be acquitted. Hon'ble Supreme Court observed as follows: -
"28. Even assuming that despite the appellant being acquitted of the charge relating to conspiracy and notwithstanding the clean acquittal of Rajinder Kumar from all the charges, the prosecution failed to prove the charge against the appellant under Sections 7, 13(2) read with Section 13(1)(d) of the PC Act.
29. It is for the reason that in order to prove a case against the appellant, it was necessary for the prosecution to prove the twin requirement of "demand and the acceptance of the bribe amount by the appellant". As mentioned above, it was the case of the prosecution in the charge that the appellant did not accept the bribe money but the money was accepted and recovered from the possession of Rajender Kumar-co-accused (A-1).
30. ...........................
31. ..........................
32. Since in order to attract the rigors of Sections 7, 13(2) read 13(1)(d) of PC Act, the prosecution was under a legal obligation to prove the twin requirements of "demand and acceptance of bribe money by the accused", the proving of one alone but not the other was not sufficient. The appellant is, therefore, entitled for acquittal from the charges framed against him under the PC Act too. (See para of M. K. Harshan Vs. State of Kerala, (1996) 11 SCC
720): (AIR 1995 SC 2178)."
9. Before appreciating evidence in this case, let it be mentioned that even in a case under Prevention of Corruption Act, the onus is on Judgment; Date 09.04.2021; CNR No. DLCT110006362019; CC No. 147/2019; State Vs. Rajeev Kumar; FIR No. 19/2010; P.S ACB;
Page 20 of 41 21the prosecution to prove the fundamental requirement of criminal law viz., the guilt of an accused should be proved beyond all reasonable doubts. In this regard reliance is placed upon State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede 2009 (4) RCR (criminal) 217, and State of Punjab Vs. Madan Mohan Lal Verma 2013 (7) LRC 34 (SC). In both these cases, it was held that the foundational facts must be established by the prosecution. It was also held that even while invoking the provision of section 20 of PC Act, the court is required to consider the explanation offered by the accused, if any, only on the touch stone of preponderance of probability and not on the touch stone of proof beyond all reasonable doubt. In the case of Dnyaneshwar (Supra) it was also held that the demand of illegal gratification is sine qua non for constitution of an offence under PC Act. In the case of Madan Mohan (Supra) it was observed that mere receipt of the amount by the accused is not sufficient to fasten guilt in absence of any evidence with regard to any demand and acceptance of the amount as illegal gratification.
10. It may also be mentioned here that it is well settled that it is one of the fundamental principles of criminal jurisprudence that an accused is presumed to be innocent till he is proved to be guilty. It is also well settled that suspicion however strong can never take the place of proof. There is a long distance between the fact that accused 'may have committed the offence' and 'must have committed the offence', which is to be proved by the prosecution by adducing reliable and cogent evidence. Presumption of Judgment; Date 09.04.2021; CNR No. DLCT110006362019; CC No. 147/2019; State Vs. Rajeev Kumar; FIR No. 19/2010; P.S ACB;
Page 21 of 41 22innocence is recognised as human right which cannot be wished away. (Refer; Narender Singh & anr. Vs. State of M.P. (2004) 10 SCC 699; Ranjtsingh Brahamjeet Singh Sharma Vs. State of Maharashtra & Ors. (2005) 5 SCC 294; Ganesan Vs. Rama S. Raghuraman & Ors. (2011) 2 SCC 83 and; State of U.P. Vs. Naresh & Ors. (2011) 4 SCC 384.
11. In the present case it is an admitted fact by the accused that he was posted as Sub Inspector in PS Burari and was investigating the FIR against Ashu Khan in the said police station at the relevant time. The accused also did not dispute sanction against him U/s 19 of POC Act, which was proved by PW23. No dispute as to sanction was raised even at the time of final arguments. The accused also did not dispute that his voice samples were obtained at FSL.
12. Although accused claimed that he was coerced to give his voice samples, but there is no suggestion to that effect by the accused in the cross examination of any of the witnesses including the IO and the Panch witness that he was so coerced. The accused took up this plea of coercion qua voice sample for the first time in his statement U/s 313 Cr.P.C. Similarly, with respect to the mobile number of the accused being used by him, the accused for the first time in his statement claimed that he did not remember whether he was using mobile no. 9650610617. In the testimony of PW12 ASI Mahipal, it is specifically deposed by the witness that accused was using the said mobile number and the said witness was not cross examined by the accused at all, leaving his testimony as unrebutted. In absence of any such suggestion or question raised to the witnesses during their cross Judgment; Date 09.04.2021; CNR No. DLCT110006362019; CC No. 147/2019; State Vs. Rajeev Kumar; FIR No. 19/2010; P.S ACB;
Page 22 of 41 23examination, the accused cannot expect this Court to accept as gospel truth whatever the accused stated in his statement. During statement of an accused, prosecution does not get any opportunity to question or confront the accused as to his answers. The accused did not step into the witness box in this case in his defence. Therefore, the denial of accused in his statement as to his mobile number and that he was coerced to give his voice sample has to be rejected. Besides the voice samples of the accused, two police officials who were posted in police station Burari at the relevant time and were well conversant with his voice identified the voice of accused in the Court also and also during investigation. Interestingly, neither of those two witnesses Ct. Suresh Kumar PW1 and Inspector Hari Krishan PW3 were cross examined by the accused despite opportunity. Therefore, the testimonies of these two witnesses that when they heard the CD in the police station ACB it contained voice of accused has remained unrebutted.
13. But the question here is how much importance can be attributed to those CDs? When these two colleagues of accused stated before the investigating agency that the audio recordings contained voice of accused, what they heard were two CDs prepared and produced by the complainant and there was no certificate U/s 65B of Evidence Act collected in this regard. Neither of these colleagues of accused heard the original recording in the original instrument either before the investigating agency or in the Court.
14. It is appropriate here to appreciate evidence of the complainant, who is examined as PW10. As mentioned earlier, Ashu Khan was Judgment; Date 09.04.2021; CNR No. DLCT110006362019; CC No. 147/2019; State Vs. Rajeev Kumar; FIR No. 19/2010; P.S ACB;
Page 23 of 41 24not examined as he was not traceable despite several attempts by the investigating agency and despite repeated processes sent by the Court. During trial it was also informed that Ashu Khan was declared a proclaimed offender in another case. Thus, Ashu Khan never appeared as a witness in the present case.
14.1. His cousin complainant Mohd. Aslam as PW10 turned hostile to the case of prosecution. Mohd. Aslam Khan deposed that it was Ashu Khan who had told him to meet the accused and then he spoke to the accused on the phone and fixed a meeting place, but claimed that he did not remember his own mobile number or the number of the accused. He met accused near ISBT, Kashmere Gate and sought his help regarding case registered against Ashu Khan upon which accused told the witness that he can help only when Ashu Khan personally meets the accused. At that time, the accused had come in a white Zen car. Witness claimed that he did not remember the date when he met the accused, but he called up Ashu Khan from his own mobile number at that time and even the accused spoke to Ashu Khan from the mobile phone of this witness. It is deposed that in the said telephonic conversation also the accused told Ashu Khan that he can be helped only when Ashu Khan meets him and after the accused records his statement. Witness deposed that subsequently Ashu Khan told this witness that Ashu Khan spoke to the accused and some money needs to be paid to the accused and for that purpose Ashu requested this witness to meet the accused and pay money to the accused as Ashu Khan was not prepared to meet the accused. The witness claimed that on the date when complaint was Judgment; Date 09.04.2021; CNR No. DLCT110006362019; CC No. 147/2019; State Vs. Rajeev Kumar; FIR No. 19/2010; P.S ACB;
Page 24 of 41 25given to Anti-Corruption Branch, he had accompanied Ashu Khan to PS ACB and in front of ACB office Ashu Khan handed over Rs. 20,000/- to him telling him that accused had demanded bribe and that a complaint is to be given against the accused. Witness claimed that he wrote his name in his complaint Ex.PW4/A and signed the same. Thereafter, the witness narrated the sequence of events as to the raid, which admittedly failed and therefore there is no point in discussing the said portion of evidence. It may however be noted that regarding the place of raid the witness claimed that he did not see the accused at the place of raid and only noticed a similar Zen car in which the accused had met this witness at Kashmere Gate and the said car went away from the spot. The witness claimed that the said car had tinted glasses and initially he told the Panch witness that it was the similar car in which he met the accused and thereafter the Panch witness told this witness that probably accused was in the car and the accused had seen them. Admittedly, the Panch witness had never seen the accused prior to that day. The witness then deposed that on the next day he accompanied Ashu Khan to PS ACB and gave complaint Ex.PW10/B along with the CD containing audio recordings of the conversation between the accused with this witness as well as Ashu Khan, which were recorded on the mobile phones. The witness also deposed that the investigating officer told this witness and Ashu Khan to prepare the CD and accordingly two CDs were prepared out of which one CD was played in the ACB office and the transcript was prepared in the ACB office. He claimed that upon hearing the CD the ACB officials asked this witness to write the transcript Ex.PW3/E. One of the CD was seized Judgment; Date 09.04.2021; CNR No. DLCT110006362019; CC No. 147/2019; State Vs. Rajeev Kumar; FIR No. 19/2010; P.S ACB;
Page 25 of 41 26by the police vide a seizure memo. The witness also deposed about giving voice samples at FSL by himself and Ashu Khan. He also identified the Micromax make mobile phone with battery and SD card, which was handed over by him to the IO as well as the Samsung company make mobile phone used by him as Ex. P6 and P2, respectively. During evidence of this witness the micro-SD card pertaining to the Micromax mobile phone, used by Ashu Khan was played in the Court. After hearing the conversation, the witness did not identify the voice of accused in those audio recordings.
Regarding audio clipping no. 0425111000 dated 25.04.2010 (in the transcript date mentioned as 24.04.2010), the witness claimed that one of the voices is of Ashu Khan, but he could not identify the other two voices contained in the audio clip.
Regarding audio clipping no. 0425111300 dated 27.04.2010 at 9:52 (in the transcript date and time mentioned as 24.04.2010 at 11.15), the witness claimed that one of the voices is of Ashu Khan, but he could not identify the other voice contained in the audio clip and instead claimed that it was probably voice of Mohd. Ahmad.
Regarding audio clipping no. 0425111500 dated 25.04.2010 at 11:17 (in the transcript date and time mentioned as 24.04.2010 at 11.15), the witness claimed that one of the voices is of Ashu Khan, second voice is of Mohd. Ahmad, but he could not identify the third voice contained in the audio clip and claimed that it could be voice of accused or Rajeev Pandey.
Regarding audio clipping no. 0425111600 dated 25.04.2010 at 14:36 (in the transcript date and time mentioned as 26.04.2010 at 11.00 AM), the witness claimed that one of the voices is of Ashu Judgment; Date 09.04.2021; CNR No. DLCT110006362019; CC No. 147/2019; State Vs. Rajeev Kumar; FIR No. 19/2010; P.S ACB;
Page 26 of 41 27Khan, but he could not identify the other voice contained in the audio clip.
Regarding audio clipping no. 426204400 dated 26.04.2010 at 20:46 (in the transcript date and time mentioned as 26.04.2010 at 07.40), the witness claimed that one of the voices is of Ashu Khan, second voice is of father of Ashu Khan, but he could not identify the third voice contained in the audio clip and claimed that it could be voice of accused or Rajeev Pandey.
Regarding audio clipping no. 4262043401 dated 26.04.2010 at 20:36 (in the transcript date and time mentioned as 26.04.2010 at 07.30), the witness claimed that one of the voices is of Ashu Khan, but he could not identify the second voice contained in the audio clip and claimed that it could be voice of accused or Rajeev Pandey.
These audio clippings mentioned above were the audio recordings contained in the memory card of the phone of Ashu Khan.
During deposition of this witness the CD allegedly containing voice recording of the conversation by the accused with this witness on his phone were also played. It may be mentioned here that since the memory card of the phone of this witness was not traceable and was never supplied to the investigating agency, the original mode of recording was not available and therefore it could not be played in the testimony of this witness. However, when the CD was played, after hearing the contents as to the call recording number 0001 the witness claimed that it did not contain his voice and contained voice of Mohd. Ahmad. He also failed to identify the second voice in the audio recording. Thus, the claim of this witness was that the words Judgment; Date 09.04.2021; CNR No. DLCT110006362019; CC No. 147/2019; State Vs. Rajeev Kumar; FIR No. 19/2010; P.S ACB;
Page 27 of 41 28ascribed against the name of this witness in the transcript were in the voice of Mohd. Ahmad and not his voice. Similarly, he replied as to the voice contained in audio recording no. 0002. Regarding audio voice recording no. 0003 & 0002000 the witness claimed that the other voice could be of accused or Rajeev Pandey, but he maintained that the second voice was of Mohd. Ahmad in these recordings and the words ascribed against the name of this witness in the transcript were spoken to Mohd. Ahmad and not this witness.
14.2. Upon this testimony of the witness, the witness was declared hostile and was cross examined by the prosecution, in which the witness denied that one Niaz Mohammad who was his uncle spoke to the accused pretending to be father of Ashu Khan. The witness denied his mobile numbers claiming he did not remember his mobile numbers. The witness even denied that he had borrowed the Samsung Mobile phone from Aman Khan along with its SIM number 9811966248 or that he conversed with the accused through the said instrument and on the said number. The witness claimed that though he took the mobile phone from Aman but he used his own SIM and not the above-mentioned SIM. The witness claimed that he had handed over his phone to Ashu Khan as Ashu Khan wanted his phone since there was conversation between him and accused in that phone. The witness denied the suggestion of Ld. Prosecutor that the words mentioned against his name were spoken to by the witness during conversation with the accused and claimed that it was voice of Mohd. Ahmad. Even during cross examination, the witness did not identify the voice as that of accused. Mohd.
Judgment; Date 09.04.2021; CNR No. DLCT110006362019; CC No. 147/2019; State Vs. Rajeev Kumar; FIR No. 19/2010; P.S ACB;
Page 28 of 41 29Ahmad was driver of Ashu Khan. The witness claimed ignorance as to the mobile number of accused or Ashu Khan. Though in the cross examination by the Prosecutor the witness admitted that the complaint Ex.PW4/A was in his hand writing and signed by him, but he claimed that he went to ACB along with Ashu Khan and the demand, if any, was made by the accused not from this witness and only Ashu Khan had told him about demand of bribe by the accused which did not happen in his presence. The fact of demand of bribe by the accused from Ashu Khan, since did not occur in presence of this witness and was not perceived by this witness from his own senses, is barred by the principles of hearsay. The witness clarified that even in the complaint Ex.PW4/A it should have been written that the demand was made from Ashu Khan as was told by Ashu Khan and no demand was made by the accused from this witness. Similarly, regarding his complaint Ex.PW10/B the witness claimed that he was made to write this complaint by Ashu Khan and it was Ashu Khan who dictated the contents of the complaint and he wrote it accordingly. The witness denied even having received any telephonic call from the accused in the evening of 26.04.2010 after the failed raid. The witness even denied that his mobile phone had function of recording and instead claimed that his phone had no recording facility and the recording was done by Ashu Khan; the CD was prepared by Ashu Khan; the CDs were brought by Ashu Khan and; only its transcript was written by this witness in the office of ACB that too on the dictation of Ashu Khan who was dictating the contents thereof. The witness even denied that Judgment; Date 09.04.2021; CNR No. DLCT110006362019; CC No. 147/2019; State Vs. Rajeev Kumar; FIR No. 19/2010; P.S ACB;
Page 29 of 41 30he called the accused on 24.04.2010 at 2.00 PM from his mobile phone no. 9811966248 on the mobile no. 9650610617. Perusal of the call detail records Ex.PW26/A1 to A32 pertaining to the phone of accused bearing no. 9650610617 reveals that a call was made from the number of this witness 9811966248 to the mobile phone of accused at 14:15:25 hours which lasted for 48 seconds. Therefore, apparently this witness lied on this point in his evidence. The witness even denied that on the next day i.e., 25.04.2010 accused called this witness near Raj Niwas in Civil Lines or that accused asked him to bring half of the bribe amount. Though the witness admitted that he met the accused near Kashmere Gate on the directions of Ashu Khan and there accused spoke to Ashu Khan through the phone of this witness, but denied that in his presence the accused demanded Rs. 1 Lakh from Ashu Khan. He denied that this conversation was recorded on his phone claiming that there was no recording done on his phone and he could not say if recording was done on the phone of Ashu. The witness even denied that on 25.04.2010 at about 6.00 PM accused called on the phone number of this witness twice at about 6.00 PM whereas the call detail records indeed suggests that on 25.04.2010 at 18:03:23 hours accused called on this number of this witness. Rather prior to it at 16:03:39 hours on that very day this witness had called the accused as per call detail records. Similarly, the witness denied during his cross examination as to other calls between him and the accused, whereas the CDR indeed reveals conversations between this witness and the accused as well as conversation between the accused and Ashu Khan during 24.04.2010 to 26.04.2010. The witness even Judgment; Date 09.04.2021; CNR No. DLCT110006362019; CC No. 147/2019; State Vs. Rajeev Kumar; FIR No. 19/2010; P.S ACB;
Page 30 of 41 31denied during cross examination that he told the investigating officer that the instrument and mobile phone number 9811966248 which he used was returned by him to Aman Khan along with the memory card. The witness denied that accused ever demanded bribe from Ashu Khan in his presence either physically or through telephone or that he recorded conversation between him or the accused on the Samsung mobile phone or that he handed over the recordings to the investigating officer.
14.3. From the cross examination of the complainant by the Ld. Prosecutor and the call detail records and the complaints made by this witness in his own handwriting and signed by him, it is clear that this witness turned hostile and did not depose truthfully in the Court. The apparent reason for the same is also contained in the end of the testimony of this witness in which the witness admitted signature on a memorandum of understanding Ex.PW10/G, which MOU is between this witness and the accused and the accused even filed a Petition in the Hon'ble High Court Ex.PW10/H, seeking quashing of the proceedings.
14.4. But the fact of the matter is that no evidence of demand by the accused from this witness or from Ashu Khan in presence of this witness has come on record. In absence of any oral direct evidence as to the demand of bribe by the accused, the only piece of evidence which remains in the present matter is the audio recordings.
14.5. As mentioned above, the mobile phone make Micromax belonging to Ashu Khan was seized in the present matter, which as per the Judgment; Date 09.04.2021; CNR No. DLCT110006362019; CC No. 147/2019; State Vs. Rajeev Kumar; FIR No. 19/2010; P.S ACB;
Page 31 of 41 32case of prosecution was the original device on which allegedly audio recording of conversations between Ashu Khan and the accused were recorded. The said mobile phone was sent to the FSL and was examined by Dr. C. P. Singh, Assistant Director (Physics) who gave his report dated 30.08.2011. The said report was proved in the Court by PW26 Inspector Rajender Kumar as Ex.PW26/F. The accused did not raise any objection as to mode of proof of this document at the time when this document was exhibited. Even during final arguments, no argument has been raised by the accused as to the mode of proof of report of FSL Ex.PW26/F. The mobile phone of Ashu Khan make Micromax was examined by the FSL expert and it was found to be containing one memory card also. It was supplied to the FSL expert in a sealed envelope sealed with the seal of RKJ and on opening the same, FSL expert found the said mobile phone along with the memory card and the FSL expert marked this case property in the laboratory as Ex.5. Besides this original mobile phone of Ashu Khan containing memory card, one CD, allegedly supplied by the complainant at the time of complaint was also sent to the FSL in sealed parcel no. 1 and the CD make Moserbear was examined by the FSL expert and was found to be containing ten audio files namely "0425111000.amr", "0425111300.amr", "0425111500.amr", "0425143600.amr", "0426203401.amr", "0426204400.amr", "voice-0001.amr", "voice-0002.amr", "voice-0003.amr" & "voice-0002000.amr". From this CD, the FSL expert marked the three speakers in different audio files as Q1, Q2 and Q3.
Judgment; Date 09.04.2021; CNR No. DLCT110006362019; CC No. 147/2019; State Vs. Rajeev Kumar; FIR No. 19/2010; P.S ACB;
Page 32 of 41 3314.6. It may be mentioned here that the FSL expert did not mark the questioned speakers in the ten audio files from the original mobile phone or the memory card but proceeded to do it from the CD. The said CD was not prepared independently by the FSL expert. Rather, it was a CD prepared and supplied by the complainant and there was no certificate U/s 65B of Evidence Act in support of this CD given by the complainant or anyone else, either at the time of giving this CD to the investigating officer or till date during trial.
14.7. The FSL expert examined the CD and reported that there was no indication of any form of alteration in the audio recordings in the CD. The FSL expert also reported that six audio files namely "0425111000.amr", "0425111300.amr", "0425111500.amr", "0425143600.amr", "0426203401.amr", "0426204400.amr" were also found present in the mobile phone memory which was marked as Ex.5 in the laboratory. Thus, the contents of the CD and the mobile phone memory, as to the number of audio files varied. The FSL expert did not even care to examine whether the six audio files found in the memory of phone were same as contained in the CD. The report of FSL expert does not mention that the FSL expert compared those six audio files with its actual contents as contained in the phone and in the CD. It appears that he simply mentioned in his report the audio file numbers as contained in the mobile phone memory.
14.8. The FSL expert did not examine the questioned audio files from the mobile phone memory with the specimen of the accused, Judgment; Date 09.04.2021; CNR No. DLCT110006362019; CC No. 147/2019; State Vs. Rajeev Kumar; FIR No. 19/2010; P.S ACB;
Page 33 of 41 34Ashu Khan and Mohd. Aslam, which were supplied to the expert as mentioned in this very report. He compared the recordings from the CD with the voice samples and gave report that the questioned audio recordings Exhibit Q-1 in the audio recordings matches with the voice sample of accused Rajeev Kumar Exhibit S-1. Thus, the FSL expert compared the questioned voices from the CD and not from the original mobile phone memory and gave his report that the specimen of accused Rajeev Kumar, Md. Aslam and Ashu Khan matched with their respective questioned voices in the CD. At the cost of repetition, it may be mentioned that there was no certificate u/s 65 B of Indian Evidence Act in support of the CD Exhibit-1. Also, in the FSL result neither the hash value of contents of CD nor the hash value of mobile phone memory is mentioned anywhere. No mirror copy of the contents of the mobile phone memory was prepared by the FSL. The FSL expert Dr. C.P. Singh was not cited as a witness in the present trial and thus he was not examined. Prosecution never took any steps to call the FSL expert by requesting the court orally or otherwise for his examination. Anyhow since the mode of proof of exhibit PW-26/F was not questioned by the accused either at the time of exhibiting of the document or even thereafter, therefore, the report is proved. Even otherwise the report is admissible u/s 293 Cr.P.C. as the scribe of the said report is an Assistant Director (Physics).
14.9. Also, in the FSL result Ex.PW-26/F it is nowhere mentioned by the expert that the above mentioned 6 audio files were in the primary memory of the phone itself or they were in the SD card or they were Judgment; Date 09.04.2021; CNR No. DLCT110006362019; CC No. 147/2019; State Vs. Rajeev Kumar; FIR No. 19/2010; P.S ACB;
Page 34 of 41 35in both of them. Every mobile smart phone contains its inbuilt primary memory, however small the capacity of that memory may be. SD card is in the nature of secondary memory which is usually used to enhance the memory capacity of a mobile phone and there is a slot in the phones to insert that memory card. In a phone a file can be stored in the primary memory, which is inbuilt in the phone, and then it can be transferred to the SD card. It is also possible that the file is directly saved in the SD card and not in the primary inbuilt memory of phone by resorting to necessary steps to that effect in the phone. But, in that eventuality the maker of the recording and the owner of the phone was required to be examined as a witness in order to prove whether he stored the audio recording directly in the SD card or it was first stored in the inbuilt memory of the phone and then transferred to the SD card. Thus, an SD card would be a secondary memory. In the FSL result it is not specified by the expert whether the questioned audio recordings were found in the inbuilt memory of the phone or they were in the SD card only, or in both.
14.10. In the testimony of complainant PW-10 Md. Aslam the audio recordings from the memory card of the mobile phone of Ashu Khan were played, but the complainant failed to identify the voice of accused in those recordings. When the complainant heard audio recording with file no. "0425111000", "0425111600" and "0425111300", the witness replied that he cannot identify the voice of other person/s besides the voice of Ashu Khan in those three recordings. Qua audio recording in file no. "0425111500" the witness claimed that one of the voice was of Ashu Khan, the second Judgment; Date 09.04.2021; CNR No. DLCT110006362019; CC No. 147/2019; State Vs. Rajeev Kumar; FIR No. 19/2010; P.S ACB;
Page 35 of 41 36voice was of one Md. Ahmed, but he was not sure as to the third voice which can be of accused or one Rajeev Pandey. Qua audio recording in file no. "0426204400" the witness claimed that one of the voice was of Ashu Khan, the second voice was of father of Ashu Khan, but he was not sure as to the third voice which can be of accused or one Rajeev Pandey. Qua audio recording in file no.
"0426203401" the witness claimed that one of the voice was of Ashu Khan, but he was not sure as to the second voice which can be of accused or one Rajeev Pandey. Thus, the complainant did not identify voice of accused in any of the six questioned audio recordings from the mobile phone of Ashu Khan.
14.11. It may be mentioned here that in the CD Exhibit-1 total 10 audio files were found by the FSL expert. Out of those 10 audio recordings, six pertained to the mobile phone of Ashu Khan which was found in original of make MICROMAX and which contained a SD card. The other four files were copied by the complainant from second mobile phone which allegedly the complainant was possessing, but the original of these recordings were never found in the present case. The Samsung phone allegedly used by the complainant was though seized and sent to FSL expert, but it was not carrying any memory card and the expert merely opined that the phone had a slot for loading memory card and was also capable of recording audio conversation. But no audio recording was found in the said phone. In absence of section 65 B of Evidence Act in support of the CD prepared by complainant or Ashu Khan and tendered with the complaint, its comparison of its contents by the Judgment; Date 09.04.2021; CNR No. DLCT110006362019; CC No. 147/2019; State Vs. Rajeev Kumar; FIR No. 19/2010; P.S ACB;Page 36 of 41 37
FSL expert qua those 4 files and also the identification by PW-1 and PW-3 after hearing that CD during investigation as well as in the court, cannot be accepted. Even otherwise, even if for the sake of argument, it is taken that the CD contained voice of accused as identified by PW-1 and PW-3, it could at best be a corroborative piece of evidence and nothing else.
14.12. Be that as it may, assuming that the voice sample of the accused, the complainant and Ashu Khan matched with the questioned audio recordings, it can at best be a corroborative piece of evidence and in absence of any oral direct evidence or any other direct evidence, it cannot be sole basis of conviction.
14.13. The investigating agency did not prepare independent sentences after picking up crucial words from the questioned recording and then the voice sample of the concerned could have been taken on those sentences so framed. The appropriate course in such matters would have been that the voice samples of the concerned persons are taken after making them read certain sentences, which contained common words with the questioned audio recordings and then without revealing the identity of the voice sample giver or the questioned recordings, the expert could have been asked to identify which of the portions was spoken to by which of the persons who gave voice samples.
14.14. In Sudhir Chaudhary Etc. Vs. State (NCT of Delhi) AIR 2016 SC 3772 it was observed that in order to ensure fairness and Judgment; Date 09.04.2021; CNR No. DLCT110006362019; CC No. 147/2019; State Vs. Rajeev Kumar; FIR No. 19/2010; P.S ACB;Page 37 of 41 38
reasonableness in drawing voice samples a passage of a written text which the accused / witnesses should be required to read out for the purposes of giving their voice samples must contain words but not the sentences from the inculpatory / disputed conversation and words appearing in the disputed conversation as may be necessary may be included in the passage.
14.15. In Ashish Kumar Dubey Vs. State Thr. CBI 2014 IV AD (Delhi) 473 the cassette recorder which was used by a witness to record the conversation was not sent to CFSL and only cassette was sent. After discussing the case of Ram Singh Vs. Karnal Ram Singh, 1985 Supp SCC 611; Nilesh Dinkar Paradkar Vs. State of Maharashtra (2011) 4 SCC 143, it was held in Ashish's case that the cassette was an inadmissible piece of evidence. In Ram Singh's case it was held that the voice of speaker must be duly identified by the maker of the record or by others who recognise his voice which is first condition for admissibility and where voice is denied by the maker, it would require very strict proof to determine whether or not it was really the voice of the speaker. It was also held that accuracy of tape-recorded statement has to be proved by the maker of the record satisfactorily and every possibility of tampering with or eraser of a part of tape- recorded statement must be ruled out; the recorded cassette must be carefully sealed and kept in safe or official custody. It was also held that voice of speaker should be clearly audible and not lost or distorted by other sounds or disturbances. In Nilesh's case it was held that it is all the more necessary since tape recordings may Judgment; Date 09.04.2021; CNR No. DLCT110006362019; CC No. 147/2019; State Vs. Rajeev Kumar; FIR No. 19/2010; P.S ACB;Page 38 of 41 39
be altered by the transposition, excision and insertion of words or phrases and such alterations may escape detection and even elude it on examination by technical experts. It was held in Ashish Kumar's case that where the recorder used to record conversation was not submitted to CFSL and without the device being examined for ruling out the possibility of tampering, one of the important requirements was not satisfied.
14.16. In Nilesh Dinkar Paradkar Vs. State of Maharashtra (2011) 4 SCC 143, it was held that the evidence of voice identification is at best suspect, if not, wholly unreliable. Accurate voice identification is much more difficult than visual identification. It is prone to such extensive and sophisticated tampering, doctoring and editing that the reality can be completely replaced by fiction. Therefore, the Courts have to be extremely cautious in basing a conviction purely on the evidence of voice identification. It was also held that in that case the voice identification by the witness was otherwise unreliable because the voice identification was conducted without taking any precautions similar to the precautions which are normally taken in visual identification of suspects by witnesses. It was also noted in that case that PW18 & 19 were informed in advance that he had to identify the voices of appellant and others and no attempt was made even to mix the voices with some other unidentified voices and in such circumstances the identification evidence would have little value. It may be mentioned here that PW18 & 19 in that case were police officials who identified the boys.
Judgment; Date 09.04.2021; CNR No. DLCT110006362019; CC No. 147/2019; State Vs. Rajeev Kumar; FIR No. 19/2010; P.S ACB;Page 39 of 41 40
14.17. Turning to the oral evidence in the present matter, as mentioned above, the raid in the present matter failed. Thus, there was no acceptance of the bribe amount by the accused. Even if contents of audio recordings are taken as proved, it at best reveals demand. In the case of Dashrath Singh (Supra) Hon'ble Supreme court relying upon in earlier decision of M.K. Harshan vs. State of Kerala AIR 1995 SC 2178, held that in order to prove a case u/s 7 demand and acceptance both are required to be proved. In case of M.K. Harshan (Supra) Hon'ble Supreme court specifically observed in paragraph no. 8 that two aspects are important in these types of cases of bribery i.e., firstly there must be a demand and secondly there must be acceptance in the sense that the accused obtained the illegal gratification. Mere demand by itself was held to be not sufficient to establish the offence, therefore, acceptance was held to be very important. In that case the accused came forward with a plea that the currency notes were put into a drawer without his knowledge Hon'ble Supreme court held that in such cases there must be clinching evidence to show that it was with the tacit approval of the accused that the money had been put in the drawer as an illegal gratification.
15. In the present matter also, there is no acceptance of bribe by the accused. In absence of examination of Ashu Khan, whose original mobile instrument was recovered containing audio recordings, the audio recordings are not proved by the maker of audio recordings and possibility of they being tampered cannot be ruled out, and thus it cannot be made sole basis of conviction. Neither the complainant Judgment; Date 09.04.2021; CNR No. DLCT110006362019; CC No. 147/2019; State Vs. Rajeev Kumar; FIR No. 19/2010; P.S ACB;Page 40 of 41 41
Mohd. Aslam supported the case of prosecution as to demand, nor his original audio recordings were proved.
16. The accused is therefore given benefit of doubt and is acquitted of the charges.
DIG Digitally signed
Announced in the open Court VINAY
by DIG VINAY
SINGH
Date:
on 9th Day of April, 2021.
2021.04.09
SINGH 15:27:15 +0530
Dig Vinay Singh
Special Judge (PC Act) (ACB)-02
Rouse Avenue Courts, Delhi
Judgment; Date 09.04.2021; CNR No. DLCT110006362019; CC No. 147/2019; State Vs. Rajeev Kumar; FIR No. 19/2010; P.S ACB;
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