C.B.I. vs . Surender Pal on 16 August, 2012

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Delhi District Court

C.B.I. vs . Surender Pal on 16 August, 2012

IN THE COURT OF SPECIAL JUDGE (PC ACT), CBI 01,
SAKET COURTS, NEW DELHI

Presiding Officer : Dinesh Kumar Sharma, Addl. Sessions Judge

CC No. 54/2011
Unique Case ID No. 02406R1037562007

C.B.I. Vs. Surender Pal

S/o Sh. Attar Singh,
R/o. B5, P.S. Moti Nagar,
New Delhi.

RC No. : 38 (A) / 2006
u/s. : Sec. 7 and 13(1)(d) r/w 13(2) of PC Act, 1988.

Judgment announced on : 09.08.2012
Date of order on sentence : 16.08.2012

ORDER ON SENTENCE

Present : Sh. D.K. Singh, Ld. PP for CBI

Convict Surender Pal in person with Sh. Sandeep Sharma, Adv.

CBI Vs. Surender Pal CC No. 54/2011 Page 1 of 54
1.0 Convict has been convicted for the offence u/S 7 and 13(1)(d)

r/w 13(2) of the PC Act, 1988.

2.0 Sh. DK Singh, Ld. PP for CBI has submitted that convict may

be awarded maximum punishment. Ld. PP for CBI has further submitted

that convict was a public servant and entrusted with duty to carry out honest

investigation. Ld. PP submits that conduct of the convict is unbecoming of a

police officer and thus, maximum punishment may be awarded.

3.0 Per contra, Sh. Sandeep Sharma, Ld. Counsel for the convict

submitted that convict is a sole bread earner of his family. He has two

daughters of marriageable age and a school going son. The convict also has

an old and ailing mother. Sh. Sandeep Sharma, Ld. Counsel for the convict

further submitted that in view of the peculiar circumstances of the convict, a

lenient view be taken.

4.0 I have considered the submissions and perused the record

carefully.

5.0 Convict Surender Pal has been found guilty for having

demanded and accepted bribe from the complainant. The convict has been

proved to have abused his position as a public servant beyond any reasonable

CBI Vs. Surender Pal CC No. 54/2011 Page 2 of 54
doubt. The disease of corruption is spreading like a dangerous disease in the

society. The entire nation is at the testing time. Since the issue of corruption

comes up time and again at the international fora, it is painful and saddening

that this country is regarded as one of the most corrupt country in the world.

It has often been said that the most unfortunate aspect is that the corruption

is prevalent right from the top to the bottom. The corruption affects the

society, at whatever level it is done, because the ultimate victim is the

common man of this country. One may say that in a case where the convict

was not a senior officer or did not have higher stake in the society and was

found having demanded and accepted a meagre amount of bribe, should be

dealt with leniently. But to my mind, this argument is fallacious. A corrupt

man may be indulging in the corruption since long and the transaction in

question, for which he was prosecuted and convicted may be only one of

those hundreds sequences. It is not the question of only awarding a harsh

punishment to the individual, the intention of the harsh punishment is to send

a message to the society that corruption is not a profitable business. The

message must go to the people who had seen accused prospering, while he

was indulging in corrupt practices, that if found guilty; one day, the entire

family may be ruined. The court has to strike the balance between the

individual interest of the convict and the interest of the society at large and

when both these interests are put on a weighing scale, the interest of the

society is much more important.

CBI Vs. Surender Pal CC No. 54/2011 Page 3 of 54
6.0 In view of the entirety of the circumstances, this court is of the

considered opinion that RI for 3 years and fine of Rs. 15,000/ , in default

SI for 6 months under Section 7 of the PC Act and RI for 3 years and

fine of Rs. 10,000/ in default SI for 6 months under Section 13(1)(d) r/w

13(2) of PC Act, 1988, shall meet the ends of justice.

Both the sentences shall run concurrently.

Benefit of Sec. 428 Cr.PC be given to the convict.

7.0 A copy of judgment and order on sentence be supplied to

the convict free of cost.

8.0 File be consigned to Record Room.

Announced in the open court (Dinesh Kumar Sharma)
today on 16.08.2012 Spl. Judge(PC Act) CBI: N. Delhi

CBI Vs. Surender Pal CC No. 54/2011 Page 4 of 54
IN THE COURT OF SPECIAL JUDGE (PC ACT), CBI 01,
SAKET COURTS, NEW DELHI

Presiding Officer : Dinesh Kumar Sharma, Addl. Sessions Judge

CC No. 54/2011
Unique Case ID No. 02406R1037562007

C.B.I. Vs. Surender Pal
S/o Sh. Attar Singh,
R/o. B5, P.S. Moti Nagar,
New Delhi.

RC No. : 38 (A) / 2006
u/s. : Sec. 7 and 13(1)(d) r/w 13(2) of PC Act, 1988.

Date of Institution : 06.02.2007
Received by transfer on : 05.11.2011
Arguments Heard on : 04.08.2012
Date of Decision : 09.08.2012

Appearances:

Sh. DK Singh, Ld. PP for CBI.
Sh. Sandeep Sharma, Ld. Counsel for accused

CBI Vs. Surender Pal CC No. 54/2011 Page 5 of 54
JUDGMENT

Facts 1.0 Accused Surender Pal has been charged for having demanded and accepted a bribe of Rs.2,000/ on 20.09.2006 from complainant Sh. Bhupender Singh as a motive or reward for strengthening his case vide FIR No. 684/2006 of Police Station Shalimar Bagh for the offence u/s. 7 of Prevention of Corruption Act, 1988 and for abusing his official position or otherwise by corrupt or illegal means by working as Government Official (Head Constable) for the offence u/s. 13 (2) read with 13 (1) (d) of Prevention of Corruption Act, 1988.

1.2 Briefly stated the facts are that on 17.09.2006, at around 10.00 PM, a quarrel took place in front of the house of the complainant. In this quarrel, complainant's elder brother Azad Singh was assaulted by the opposite party namely Krishna, Sachin and Rai Singh. The complainant and his sister Hemlata were also assaulted by the accused persons. In this regard, a case FIR No. 684/2006 dated 18.09.2006 was lodged at Police Station Shalimar Bagh and investigation was entrusted to Head Constable Surender Pal (accused herein). On 20.09.2006, the complainant met the accused at Police Station Shalimar Bagh, where the accused told the complainant that opposite party had lodged FIR against the complainant and his relative and CBI Vs. Surender Pal CC No. 54/2011 Page 6 of 54 further represented that in view of the MLC of the opposite party, the case of the complainant in regard to FIR No. 684/2006 is weak. Accused demanded Rs.2,000/ from the complainant to strengthen his case and further threatened that in case the bribe not paid, the accused would favour the opposite party.

1.3 The complainant decided to lodge a complaint Ex.PW1/A with the CBI. The complaint was marked for verification and laying of trap. Inspector R.C. Sharma (PW10) was appointed as Trap Laying Officer. In the course of verification, the complaint was found to be genuine. The trap team consisting of PW8 Inspector Brijesh Kumar, PW11 Inspector Prem Nath and independent witnesses namely PW7 Rajesh Kumar and PW9 R.S. Kataria were constituted. The complainant produced a sum of Rs.2,000/. The number of currency notes were recorded in the handing over memo. The demonstration regarding chemical reaction with sodium carbonate was given by PW11 Inspector Prem Nath with the help of independent witness PW9 R.S. Kataria. After the personal search of the complainant, the phenolphthalein treated notes were kept in the left side shirt pocket of the complainant and PW7 Rajesh Kumar was appointed as shadow witness. The proceedings conducted during the pretrap were duly recorded in handing over memo Ex.PW1/B. The complainant was given the digital recorder in 'on' condition for recording the spot conversation. The trap team reached at Police Station Shalimar Bagh at about 8.00 P.M. Around 8.20 P.M., CBI Vs. Surender Pal CC No. 54/2011 Page 7 of 54 complainant Bhupender Singh (PW1) contacted accused Surender Pal from his mobile and after about 5 minutes, accused came to the complainant on his motorcycle bearing No. DL1SQ772. Both had conversation and thereafter complainant sat on the motorcycle and went away. Investigation revealed that after some distance, the accused stopped the motorcycle. Both had cold drink and accused was seen showing some paper after taking the same out from the dickey of motorcycle and the complainant was seen handing over the bribe to the accused saying that "gin lo ji, kahenge aap se wahin do, do hi hai, bhai saheb galat nahi". The bribe money was accepted by the accused after counting it. The complainant gave the prefix signal on which the trap members rushed towards the spot. The accused on realizing it, threw the money on the top of the closed dickey of his motorcycle. The accused was caught hold by his wrist by Inspector Brijesh Kumar (PW8) and shadow witness Rajesh Kumar (PW7). Accused on being challenged by Inspector R.C. Sharma, Inspector, TLO (PW10), became perplexed. Sh. R.S. Kataria (PW9) recovered the tainted notes from the top of the dickey of the motorcycle and tallied the same with the numbers mentioned in the handing over memo. The hand wash of the accused was taken. The colourless solution turned into pink. The solution was transferred into a bottle and duly sealed and marked as RHW. When the accused was asked to give hand wash of his left hand, he started creating a scene and therefore the accused was taken to the Police Station Shalimar Bagh where the left hand wash was taken. This time also, the colourless solution turned to pink and CBI Vs. Surender Pal CC No. 54/2011 Page 8 of 54 the same was transferred into a bottle. The recovery memo Ex.PW1/C was prepared at the spot. The rough site plan Ex.PW7/A was prepared and accused was formally arrested and his personal search was conducted vide memo Ex.PW7/B. 1.4 During the course of investigation, the transcript of the conversation held on 20.09.2006 between complainant Bhupender Singh (PW1) and accused, Ex.PW1/D was prepared on 14.12.2006. The transcript of the conversation held at the spot between accused and the complainant Ex.PW1/E was also prepared on 14.12.2006. The complainant and Rajesh Kumar (PW7) duly identified their voices and confirmed that the prepared transcript Ex.PW1/D and Ex.PW1/E were the exact replica of the conversation held between the the complainant and the accused. Voice identificationcumtranscription preparation memo Ex.PW1/F was duly prepared. The cassettes were sent to the CFSL. The conversation expert in his report Ex.PW2/A gave the positive report. The left hand wash and right hand wash were also sent to CFSL for chemical examination. The chemical examination report Ex.PW3/A also gave positive test for the presence of phenolphthalein.

1.5 During the course of investigation, the sample voice of the accused was recorded on 21.09.2006 and a subsequent voice identification cumtranscription preparation memo Ex.PW7/C was duly prepared. Accused CBI Vs. Surender Pal CC No. 54/2011 Page 9 of 54 was dismissed from the service vide order dated 21.09.2006 by Sh. Manish K. Agrawal, the then Deputy Commissioner of Police, NorthWest District under article 311 (2) (b) of the Constitution of India, and, therefore no sanction for prosecution was required.

Charge 2.0 Being a prima facie, the charge u/s. 7 of Prevention of Corruption Act, 1988 and u/s. 13 (2) read with 13 (1) (d) of Prevention of Corruption Act, 1988 was framed against the accused to which accused pleaded not guilty and claimed trial.

Prosecution witnesses 3.0 Prosecution examined 12 witnesses in support of its case. 3.1 PW1 Bhupender Singh proved his complaint Ex.PW1/A and fully supported the case of the prosecution.

3.2 PW2 Dr. Rajender Singh, Principal, Scientific Officer proved his report Ex.PW2/A. Dr. Rajender Singh stated that he received 3 cassettes marked as Q1, Q2 and S1. The cassettes Q1 and Q2 contained CBI Vs. Surender Pal CC No. 54/2011 Page 10 of 54 questioned recording of accused and cassette S1 contained specimen voice recording of the accused. Upon examination by auditory and voice spectrography technique, it was found that questioned voice i.e. Q1 (A) and Q2 (A) tallied with voice of accused Surender Pal Singh. In the course of examination, PW2 specifically stated that as per his report, the voice of accused Surender Pal resembled with the questioned voice to the extent of 99 per cent. He also stated that on examination, he found that the voice could not have been tampered.

3.3 PW3 Dr. V.B. Ramteke deposed on oath that he had analyzed left hand wash and right hand wash and the presence of phenolphthalein was revealed in both the exhibits. The report is Ex.PW3/A. 3.4 PW4 Hem Lata, sister of the complainant deposed regarding the incident dated 17.09.2006 pursuant to which FIR No. 684/2006 was lodged. She further stated that the accused had come to their home in connection with the investigation of this case. The witness submitted that she was arrested on 18..09.2006 alongwith other persons u/s. 107/151 of the Cr.P.C., 1973. The witness denied the suggestion that they had a grudge against the accused as he had arrested one of their relatives, who was an MCD employee.

CBI Vs. Surender Pal CC No. 54/2011 Page 11 of 54 3.5 PW5 Vijay Singh was also witness to the similar facts. In the cross examination, PW5 also admitted the fact of he being arrested u/s. 107/151 of the Cr.P.C., 1973. The cross examination of this witness is also on the same footing.

3.6 PW6 ASI Prem Singh was handed over the investigation of FIR No. 684/2006 dated 18.09.2006 for further investigation on 22.09.2006. ASI Prem Singh had filed the charge sheet in this case.

3.7 PW7 Rajesh Kumar (shadow witness) deposed on oath regarding joining of proceedings. He also deposed regarding the treatment of the currency notes with the phenolphthalein powder during the pretrap proceedings. PW7 stated that he was directed to accompany the complainant. However, complainant went with the accused on his motorcycle and he chased them. The witness has proved handing over memo Ex.PW1/B, recovery memo Ex.PW1/C, arrestcumpersonal search memo Ex.PW7/BG transcription Ex.PW1/D and transcription of spot conversation Ex.PW1/E. The subsequent voice recording memo prepared on 21.09.2006, was proved as Ex.PW7/C. The witness also identified the identificationcumtranscription preparation memo dated 14.12.2006 as Ex.PW1/F. It has been stated that the hand wash of the accused was taken in Shalimar Bagh market in his presence and Rs.2,000/ was recovered from CBI Vs. Surender Pal CC No. 54/2011 Page 12 of 54 the seat of the motorcycle of the accused by PW9 Sh. R.S. Kataria. The cassette (Q2) containing spot trap conversation between complainant Bhupender Singh (PW1) and accused Surender Pal on 20.09.2006 was proved as Ex.P4. The cassette containing telephonic conversation between complainant and the accused was proved as Ex.P1. The bottle containing left hand wash and right hand wash was proved as Ex.P8 and Ex.PW7 respectively. The three currency notes of Rs.500/ denomination each and five currency notes of Rs.100/ denomination were proved Ex.P11 to Ex.P18. In the cross examination, PW7 stated that he signed on the documents on the directions of the CBI and in his presence the accused was not directed to pick up the notes from the motorcycle by the CBI officials. 3.8 PW8 Inspector Brijesh Kumar, member of raiding party proved the pretrap proceedings including production of currency notes, demonstration of chemical reaction of phenolphthalein powder with sodium carbonate. Inspector Brijesh Kumar stated that the complainant contacted accused on his mobile as per directions of TLO and talked with him which was recorded simultaneously and said conversation was transferred into blank audio cassette. Around 8.00 P.M., the raiding party reached near Police Station Shalimar Bagh and the complainant and shadow witness Rajesh Kumar (PW7) were allowed to proceed towards the gate of Police Station Shalimar Bagh. The complainant contacted the accused through his mobile at about 8.20 P.M. and after 5 minutes the accused came on his CBI Vs. Surender Pal CC No. 54/2011 Page 13 of 54 motorcycle and the complainant sat on the pillion set of the motorcycle and thereafter both went away towards nearby market. The shadow witness, two independent witnesses and rest team members followed the motorcycle and after about half kilometer distance, motorcycle of accused was seen parked in front of a dry cleaner shop. The complainant and accused were seen taking cold drink and after finishing the cold drink, the payment was made by the accused. Thereafter, accused was seen taking out some papers from the dickey of his motorcycle and was showing the same to the complainant The complainant took out the money from his shirt pocket and the same was accepted by the accused after counting. In the meanwhile, the signal was given and the trap team surrounded the accused. The accused threw the tainted notes on the top of the dickey of motorcycle. On being challenged by Inspector R.S. Sharma, TLO for demanding and accepting the bribe of Rs. 2,000/ from the complainant for extending favour to him in a case pending with him, the accused stated that 'maine kuch nahi kiya, meri maa mar jayegi'. The currency notes were recovered by Sh. R.S. Kataria (PW9) and the numbers were tallied with the handing over memo. The digital recorder was taken back from the complainant and the right hand wash and the left hand wash were taken, which shows the colourless solution of sodium carbonate and water turned into pink colour. The conversation recorded in the digital recorder was transferred into blank audio cassette. The accused was arrested. The motorcycle of the accused was also searched and recovery memo Ex.PW1/C was prepared. Inspector Brijesh Kumar stated that the CBI Vs. Surender Pal CC No. 54/2011 Page 14 of 54 shadow witness Rajesh (PW7) was just standing close to the complainant. He stated that the trap team followed the motorcycle on foot. The witness admitted that the motorcycle of the accused was not seized. 3.9 PW9 Sh. R.S. Kataria, another eye witness has proved the pre trap proceedings including production of currency notes, demonstration regarding phenolphthalein powder, handing over of digital recorder to the complainant. The witness also proved the telephonic conversation of the complainant with the accused and transfer of the same to another audio cassette. The complaint Ex.PW1/A was read over to the witness. He also proved handing over memo Ex.PW1/B. The witness made a consistent and corroborative statement regarding accused having reached on his motorcycle and then taking away the complainant on the motorcycle to the market. PW9 specifically stated that he saw the complainant taking out the money from his shirt pocket and accused having accepted the same with his right hand and counted the same. The witness stated that the accused was apprehended and the currency notes were recovered. PW9 deposed regarding the right hand wash and the left hand wash and other proceedings conducted by the TLO. The witness also produced the brass seal of CBI, which was given to him after the proceedings. It is pertinent to mention here that the witness admitted in the cross examination that in the telephonic conversation recorded in cassette Ex.P1 (Q1), the conversation related to payment of amount by the complainant, but did not specifically mention the CBI Vs. Surender Pal CC No. 54/2011 Page 15 of 54 demand by the accused.

3.10 PW10 Inspector R.C. Sharma, Trap Laying Officer formally proved the trap proceedings conducted by him. Inspector R.C. Sharma stated that after the compliant Ex.PW1/A was marked to him by the then Superintendent of Police, Sh. Sumit Sharma, he called the complainant and also collected the FIR No. 684/2006. Inspector R.C. Sharma stated that a trap team was constituted and two independent witnesses namely Sh. Rajesh Kumar (PW7) and Sh. R.S. Kataria (PW9) were joined. The complainant produced the currency notes and demonstration regarding phenolphthalein powder was conducted. PW7 was appointed as shadow witness and complainant was directed to keep the tainted currency notes in his left side shirt pocket with direction to give the same to the accused on his specific demand. PW10 stated that the digital voice recorder was arranged and independent statement of witnesses were recorded. The complainant made telephonic call to the accused from the CBI Office and the same was duly recorded and transferred into a blank audio cassette Ex.P1 (Q1). Inspector R.C. Sharma also made the consistent statement. He stated that on receipt of signal, he alongwith other members of the trap team reached towards the complainant. The complainant informed that accused had taken bribe of Rs. 2,000/. Inspector R.C. Sharma challenged the accused upon which the accused perplexed and said 'sahab maine kuch nahi kiya, meri maa mar jayegi' The accused was seen dropping the tainted money on the top of the CBI Vs. Surender Pal CC No. 54/2011 Page 16 of 54 dickey of the motorcycle. The hand wash of the accused was taken after tallying the number of currency notes with the numbers recorded in the handing over memo. The digital recorder was taken back from the complainant and the recorded conversation was transferred into blank audio cassette Q2 (Ex.P4). In the cross examination, no material came out which could shatter the case of the CBI.

3.12 PW11 Inspector Prem Nath, another member of the raiding party also made a consistent and corroborated statement. PW12 DSP Karan Arya was the second Investigating Officer of the case. He collected the CFSL reports and after completion of investigation filed the charge sheet. Statement of accused 4.0 The accused in his statement u/s 313 Cr.P.c. stated that he had booked the complainant party u/S. 107/151 Cr.P.c. on 18.09.06 in which one of the accused namely Ravinder was an MCD employee. The complainant put pressure on him to exclude Ravinder. He did not succumb to the pressure on account of which the complainant got annoyed and made a false and frivolous complaint against him. Both the independent witnesses are from MCD and they were known to abovesaid Ravinder and therefore deposed falsely under influence as well as under the influence of CBI. He further CBI Vs. Surender Pal CC No. 54/2011 Page 17 of 54 stated that the notes were falsely planted without his knowledge and that he had never demanded any bribe from the complainant nor accepted anything. Defence Evidence 5.0 Accused has examined 4 witnesses in his defence.

5.1 DW1 Ct. Sandeep proved the record i.e. file relating to kalandra no.501 dt. 18.09.2006 titled as GC Surender Pal no. 536/NW Vs. Ravinder Singh etc. the copy of the ordersheet dt. 18.09.06 is Ex. DW1/A bearing signatures of SEM. The copy of Kalandra is proved as DW1/B and the copy of DD No. 28B dt. 18.09.06 is proved as DW1/C. 5.2 DW2 HC Rajesh Kumar proved the FIR register containing FIR No. 1015/2006 u/S. 308/323/341/506/182/34 IPC dt. 31.12.06 registered against Hemlata, Raju, Azad Singh, Vijay Kumar, Bupender and Ravinder Singh as Ex. DW2/A. 5.3 DW3 HC Ram Naresh proved the FIR register containing FIR No. 54/2004 under Section 3/4/5 ITP Act dt. 04.02.2004 registered against accused Hemlata @ Anjali W/o. Chetan Swaroop as Ex. DW3/A. CBI Vs. Surender Pal CC No. 54/2011 Page 18 of 54 5.4 DW4 HC Karan Singh has proved the FIR register containing FIR No. 802/02 under Section 3/4/8 ITP Act dt. 30.10.02 registered against Hemlata @ Anjali W/o. Sh. Chetan Swaroop as Ex. DW4/A. Submissions 6.0 Sh. D. K. Singh Ld. Addl. PP for CBI has stated that PW 1 Sh. Bhupender Singh and both independent witnesses PW 7 Rajesh Kumar, PW 9 and PW 11 have made consistent and corroborative statement on oath. The contradictions which have occurred in the statements are minor in nature and does not go to the rood of the case. PW 1 complainant made specific statement regarding demand made by the accused. The story of prosecution regarding demand and acceptance of the bribe is cogent and credit worthy, and since there is specific reliable evidence regarding demand and acceptance of bribe thus, statutory presumption under Section 20 POC Act can be raised.

Ld. PP submitted that there is no rule of law or prudence which debars the court from passing the conviction on the testimony of persons involved in criminal case provided they are found to be reliable. Reliance AIR 1967 Delhi 26.

has been placed on Ram Sarup Charan Singh Vs. State Ld. PP further submitted that the contradictions which have CBI Vs. Surender Pal CC No. 54/2011 Page 19 of 54 appeared are minor in nature and does not go to the root of the case. Ld. PP submitted that it is not mandatory that there should be demand or acceptance by the words of mouth as the accused persons can make the demand/acceptance by action and gestures. Sh. D.K. Singh, Ld. PP invited the attention of the court towards Section 7 of PC Act, 1988 . He would submit that mere reading of Section 7 of the PC Act, 1988 indicate that Legislature in his wisdom has not used the word, "demand" in the provision. Ld. PP submitted that prosecution, in order to succeed, u/s 7 of PC Act, is not necessarily required to prove the demand made by the accused person. He also stated that the dictionary meaning of word, "accept" is with consenting mind. He would submit that consent may be established by evidence of surrounding circumstances indicating prior mind set. In support of contention, Ld. PP for CBI has relied upon on State of M.P. vs. Shambhu Dayal Nagar (2006) 8 SCC 693.

6.1 Sh. Sandeep Sharma, Ld. Counsel for the accused has argued in detail and submitted that the complainant was having grudge against the accused after having been annoyed on the ground that the accused had booked the complainant and his relatives for breach of peace under section 107/151 Cr.P.C.. Accused has submitted that in case FIR no. 684/06 registered on the complaint of relatives of the complainant, accused had effected the arrest and on his request accused persons in case FIR No. 684/06 CBI Vs. Surender Pal CC No. 54/2011 Page 20 of 54 were sent to Judicial custody till 04.10.2006. Charge sheet in this case was filed and this case has already resulted in the conviction of the accused persons. Ld. Counsel for accused has submitted that infact complainant himself contacted the accused at the stage, when bail application in case FIR No. 684/06 was pending. Accused assured the complainant that he would oppose the bail application.

Ld. Counsel for accused has pleaded that complainant (PW1) cleverly kept the tainted GC notes on the motorcycle of the accused and had called the CBI officials. CBI officials directed the accused to took the GC notes from the motorcycle and handed over to them. The accused had innocently complied with the directions of the CBI officials and therefore his hands came into contact of phenolphthalein powder. Accused pleaded that his motorcycle was not having any dikky and for this reason, same was not seized by CBI.

Sh. Sandeep Sharma, Ld. Counsel for accused submitted that the plea of the complainant regarding demand of bribe cannot be believed as there is contradiction in the complaint Ex. PW 1/A and transcription Ex. PW 1/D. In the complaint, bribe amount has been mentioned as Rs. 2,000/ and in the transcription the bribe amount has been mentioned to be as Rs. 3,000/ . Transcription Ex. PW 1/D has been claimed to be a fabricated document as during hearing the cassette Q 1 (Ex. P1) containing the alleged pretrap CBI Vs. Surender Pal CC No. 54/2011 Page 21 of 54 conversation in the CBI office there was clear voice of barking dogs. As per the case of CBI, recording was done at the CBI Office. In CBI office there is no question of dogs being moving around and therefore the recording is apparently fabricated and tampered with.

Ld. Counsel has submitted that CBI has not filed any call detail record of the cell phone of either of the complainant or of accused and therefore, the evidence regarding conversation is liable to be rejected. Even otherwise, as admitted by the complainant in his cross examination, accused had not demanded any bribe from the complainant during conversation on the telephone at pre trap stage. The complainant has falsely implicated the accused on account of animosity. In support of its contention Ld. Counsel for accused has cited the following judgments  Chander Bhan Vs. State (CBI), 73 (1988) DLT 318  Ganpati Sanya Naik Vs. State of Karnataka, AIR 2007 SC 3213  Abdul Rashid Ansari Vs. State of UP, Crimes 1993 (2) 261  Sunil Kumar Sharma Vs. State (CBI), 2007 (3) Crimes 160 Complainant has made contradictory statement regarding demand of bribe. During his examination in chief complainant (Pw1) stated that accused had demanded bribe on 20.06.2006 at PS whereas during cross examination the complainant has stated that accused had demanded bribe CBI Vs. Surender Pal CC No. 54/2011 Page 22 of 54 19.09.2006. It was pointed out that during his statement in case FIR No. 684/06 the complainant gave all together different version regarding payment of bribe. In respect of the demand of bribe PW 4 Hemlata, PW 5 Vijay Singh have not supported the case of prosecution.

Ld. Counsel submitted that the plea of complainant, that accused demanded bribe for helping the complainant party, is entirely false and frivolous. The case FIR No. 1015/06 was registered against the complainant party only on 31.12.2006.

Ld. Counsel for accused has also pointed out that in respect of demand of bribe by the accused by gesticulation, also liable to fail, as this fact has not been mentioned in the recovery memo Ex. PW 1/C. PW 7 Rajesh Kumar did not support the case of prosecution regarding demand of bribe and his testimony remained unchallenged as the prosecution did not choose to cross examine him. PW 10 Inspector R. C. Sharma, and PW 11 Inspector Prem Nath also did not say anything about the acceptance of the bribe by the accused nor did PW 10 Inspector R. C. Sharma stated about the specific demand of bribe by the accused. The testimony of PW 8 Inspector Brijesh Singh and PW 9 R. S. Kataria cannot be believed on the point of acceptance and throwing of bribe by the accused in view of the contradictory testimonies of PW 7 Rajesh Kumar, PW 10 Inspector R. C. Sharma and PW 11 Inspector Prem Nath. CBI did not join any independent witnesses from CBI Vs. Surender Pal CC No. 54/2011 Page 23 of 54 the market and, therefore, adverse inference should be taken against the prosecution on this point. In the absence of any specific evidence regarding proof of demand, the case of the prosecution is liable to be rejected. In support of his contentions, Ld. Counsel has placed reliance upon :

               V. Venka Subbarao Vs. State, 2007 Crl. J 754 SC

               T. Subramanian  Vs. State of T. N. , 2006 SCC 401

               State   of   Maharashtra   Vs.  Dayaneshwar   Laxam   Rao  

               Wankhede, VI (2009) SLT 439 SC

In respect of recovery of bribe, on 20.09.2006 prosecution case cannot be believed as story put up by the CBI that GC notes were found in the dickey, is highly improbable. It would be impractical that if somebody throws currency notes from some distance, GC notes would land on the dicky and would not fell down on the road. In respect of recovery, there is also contradiction in the testimony of PW 1 and PW 7. PW 1 Bhupender Singh stated that accused was directed to pick the GC notes from the dickey, whereas PW 7 has stated that Rs. 2,000/ were recovered from the seat of motorcycle. In any case mere recovery in the absence of demand of bribe is of no consequence and reliance was placed on Suraj Mal Vs. State (Delhi) AIR 1979 SC 1408.

In the absence of cogent and credit worthy evidence regarding CBI Vs. Surender Pal CC No. 54/2011 Page 24 of 54 recovery of bribe money from the possession of the accused, presumption under section 20 POC Act cannot be raised against the accused. In support of its contention, Ld. Counsel has placed on record the following judgments:

 Smt. Meena Balwant Hemke Vs. State of Maharashtra, 2000 CrLJ 2271 SC  M. K. Harshan Vs. State of Kerela, I (1996) CCR 218 (SC) In respect of tape recorded conversation Ld, counsel has pleaded that as per the case of CBI the digital voice recorder was handed over to the complainant in "On" position before he entered into the police station and same was taken back outside the police station after the accused was apprehended. Even if so, then recording in the digital voice recorded should be more than one hour whereas the report of the CFSL Ex. PW 2/A Q2 (Ex.

P 4) contains the recording of duration 6.40 minutes approximately. Thus, recording is prima facie tampered.

Ld. Counsel has pointed out that as per the case of CBI the transcription was prepared on 14.12.2006, whereas as per report Ex. PW 2/A the sealed parcel was received in the office of CFSL vide letter dated 22.09.2006 which contain the rough transcription comprising of two pages.

Ld. Counsel has pointed out that contradiction in the testimony CBI Vs. Surender Pal CC No. 54/2011 Page 25 of 54 of PW 1 and PW 9 in respect of conversation in the voice recorded. PW 1 has categorically stated that the recorder was containing magnetic cassette of normal size in it, whereas PW 10 Inspector R. C. Sharma chose to have weak memory and stated that he did not remember how and in what manner telephonic conversation between the complainant and accused during pre trap proceedings, was recorded.

Ld. Counsel has pointed out that CBI has prepared the documents mechanically as revealed from the fact that signatures of Addl. SHO Sh. Rajesh Parmar were taken on all the papers, whereas he has not been cited as a witness. Ld. Counsel has assailed that testimony of PW 4 Hemlata on the ground that she herself had shady background and therefore, cannot be believed.

CBI did not conduct any verification before registering the FIR despite the directions of the SP, CBI. Ld. Counsel has submitted that accused is entitled to be acquitted in view of the fact that when there two views are possible, the view favourable to the accused is taken. Reliance was placed upon  T. Subramanian Vs. State, (2006) 1 SCC 401 Ld. Counsel has concluded his arguments saying that prosecution has miserably failed to discharge his onus by proving the case CBI Vs. Surender Pal CC No. 54/2011 Page 26 of 54 against the accused beyond reasonable doubt. Therefore, case must result in acquittal of the accused. He has placed reliance upon following judgments:

 VD Jhingan Vs. State of UP, AIR 1996 Suprme Court 1762  Rabindra Kumar Dey Vs. State of Orissa, 1976 SCC Crl. J 566  State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede, 2009 (4) RCR Cr. SC 217  Tonal Kiprono Ramkat Vs. State of Haryana, 2001 (3) RCR Crl. 767 SC  Sunil Kmar Sharma Vs. CBI, 2007 (3) Crimes 160 7.0 I have heard the counsel for both the parties and perused the record carefully.

Conclusions:

8.0 Accused has been charged for the offences u/s. 7 of Prevention of Corruption Act, 1988 and u/s. 13 (2) read with 13 (1) (d) of Prevention of Corruption Act, 1988. Prevention of Corruption Act, 1988 was enacted to make anti corruption laws more efficient by increasing its scope and strengthening the provisions. Section 7 of the PC Act deals with the offence and penalty relating to acceptance of gratification other than legal remuneration by a public servant in respect of an official act.

CBI Vs. Surender Pal CC No. 54/2011 Page 27 of 54

9.0 Section 7 of the POC Act, 1988 provides as under :

"Public Servant taking gratification other than legal remuneration in respect of an official act - Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government of any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government Company referred to in clause (c) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine."

9.1 In Dalpat Singh Vs. State of Rajasthan, AIR 1969 SC 17 it was held that the following requirement have to be satisfied to attract Sec. 7 of the Prevention of Corruption Act:

(1) the accused at the time of the offence was, or expected to be a public servant;

(2) that he accepted, or obtained, or agreed to accept, or attempted to obtain from some person a gratification;

(3) that such gratification was not a legal remuneration due to him;

and, (4) that he accepted the gratification in question as a motive or reward, CBI Vs. Surender Pal CC No. 54/2011 Page 28 of 54 for:

(a) doing or forbearing to do an official act, or

(b) showing, or forbearing to show favour or disfavour to some one in the exercise of his official functions; or

(c) rendering or attempting to render, any service or disservice to some one, with the Central or any State Government or Parliament or the Legislature of any State or with any public servant.

The prosecution is required to prove the above ingredients by way of acceptable and clinching evidence.

10.0 Section 20 of the PC Act 1988 provides for raising of a presumption in the event it is proved that the accused person has accepted or obtained or to obtain for himself any gratification or valuable thing. The presumption u/s 20 can be invoked if the prosecution has successfully proved by way of clinching evidence that accused has accepted or agreed to accept any gratification or valuable thing. Once this fact is proved, the presumption as provided u/s 20 PC Act, 1988 can be raised that public servant has accepted or agreed to accept the same as a motive for doing or forbearing for doing an official act. However, it is a rebuttable presumption and the burden of proof shifts upon the accused to prove that it was not as a motive or reward that the gratification or valuable thing was obtained. However, the onus on the accused to rebut this presumption is not as onerous as on the prosecution.

In the present case the accused persons have been charged for CBI Vs. Surender Pal CC No. 54/2011 Page 29 of 54 the offence u/S. 7 of Prevention of Corruption Act, 1988 and u/s. 13 (2) read with 13 (1) (d) of Prevention of Corruption Act, 1988 It is a settled preposition that in order to prove the offence u/S. 7 of the PC Act, the acceptance of illegal gratification, whether preceded by demand or not, is sufficient. However the acceptance of illegal gratification by the public servant in pursuance of a demand, would fall u/s 13 (1)(d) of the Act also. In Harish Kumar Vs. CBI ILR (2011) IV Delhi 642, the implication of statutory presumption u/s 20 of the POC Act was considered in detail and it was inter alia held as under :

" 14. In the present case, since acceptance and demand has been proved in terms of Section 7 of the POC Act, this Court is duty bound to raise presumption for offence under Section 20 of the POC Act. In M.Narsinga Rao Vs. State of Andhra Pradesh, 2001 (1) SCC 691 it was held that where receipt of illegal gratification was proved, the Court was under a legal obligation to presume that such gratification was accepted as reward for doing a public duty. In the report, it was held :

" 13. Before proceeding further, we may point out that the expressions "may presume" and "shall presume" are defined in Section 4 of the Evidence Act. The presumptions falling under the former category are compendiously known as "factual presumption" or discretionary presumptions"

and those falling under the latter as " legal presumptions"

or "compulsory presumption". When the expression "shall be presumed" is employed in Section 20(1) of the Act it must have the same import of compulsion.

14. When the subsection deals with legal presumption it is to be understood as in terrarium i.e. in tone of a command that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act et., if the condition envisaged in the CBI Vs. Surender Pal CC No. 54/2011 Page 30 of 54 former part of the section is satisfied. The only condition for drawing such a legal presumption under Section 20 is that during trial it should be proved that the accused has accepted or agreed to accept any gratification. The section does not say that the said condition should be satisfied through direct evidence. Its only requirement is that it must be proved that the accused has accepted or agreed to accept gratification. Direct evidence is one of the modes through which a fact can be proved. But that is not the only mode envisaged in the Evidence Act."

11.0 The defence has assailed the case of prosecution primarily on the ground that the prosecution has miserably failed to prove its case against the accused beyond reasonable doubt in view of the material contradiction in the testimony of the prosecutions witnesses regarding payment and acceptance of the bribe, and, therefore, in absence of credit worthy evidence relating to the acceptance of the bribe, statutory presumption under section 20 cannot be raised. Tape recorded conversation cannot be believed on account of inherent contradiction. The complainant implicated the accused falsely on account of animosity and grudge against the accused.

Prosecution on the other hand has expected this court to believe that PW1 Sh. Bhupender Singh has made specific statement on oath regarding demand and acceptance of the bribe. The demand of bribe has also been proved on the basis of complaint Ex. PW 1/A, tape recorded conversation between the accused and the complainant and demand made by CBI Vs. Surender Pal CC No. 54/2011 Page 31 of 54 the accused on the spot. The recovery of tainted currency notes from the accused have also been proved by PW1 Sh. Bhupender Singh, PW9 R. S. Kataria, PW10 Inspector R. C. Sharma and PW11 Inspector Prem Nath. The other prosecution witnesses have also made consistent and corroborative statement on oath. The chemical analysis report is showing the presence of phenolphthalein powder during the hand wash of the hands of the accused. The contradiction which have occurred in the testimony of PWs are minor in nature and does not go to the root of its case.

12.0 Before proceeding further, let us analyze the scope of appreciation of evidence. It is settled preposition that while appreciating evidence of the prosecution witnesses, the court has to look for the value of testimony as a whole. The testimony of the prosecution witnesses cannot be read in piecemeal and has to be read as a whole.

In Mehkar Singh Vs. CBI ILR (2011) IV Delhi, it was inter alia held as under :

"It must be kept in mind that while appreciating the evidence of a witness one may come across certain discrepancies in his deposition. These discrepancies are really of no consequence as long as they don't go into the root of an demolish the veracity of the case. These discrepancies can be due to normal errors of observation, or loss of memory due to lapse of time or due to mental disposition such as shock and horror at the time of the occurrence and the like. It must be remembered hat the evidence given by a witness would very much depend upon his power of observation and it is possible that some aspects of an incident may be observed by CBI Vs. Surender Pal CC No. 54/2011 Page 32 of 54 one witness while they may not be witnessed by another though both are present at the scene of occurrence [vide Boya Ganganna and anr. v. The State of Andhra Pradesh AIR 1976 SC 1541]. In the case of Bharwarda Bhoginbhai Hirjibhai (supra), it was held by the Supreme Court that much importance cannot be given to minor discrepancies which did not got to the root of the matter and shake the basic version of the witnesses, therefore cannot be annexed with undue importance. It has been held time and again by catena of judgments of Apex Court that discrepancies do not necessarily demolish the testimony. The proof of guilt can be sustained despite some infirmities [Narottam Singh Vs. State, 1978 Crl.L.J. 1612 (SC)]. In the case of Ramni Vs. State, 1999 (6) SC 247, it was held that all the discrepancies are not capable of affecting the credibility of the witnesses and similarly all the inconsistent statements are not sufficient to impair the credit of a witness."

13.0 Coming to the statement of prosecution witnesses, PW 1 Bhupender Singh in his testimony deposed regarding quarrel having been taken place between his cousin Azad Singh and the accused. In connection of this, accused met complainant party at PS Shalimar Bagh. The complainant met the accused on 18.09.2006 for the first time in the PS. On 20.09.2006 accused demanded bribe of Rs. 2,000/ from the complainant in the PS for making their case strong and also threatened that if bribe is not paid, he would strengthen the case of other party. Complainant went to the CBI along with his sister PW 4 Hemlata and filed the complaint Ex. PW 1/A. In the meanwhile, complainant received a call of accused on his mobile phone. Accused called the complainant to the PS. Complainant stated that he narrated all the facts to the independent witness and produced Rs. 2,000/ (consisting 3 GC notes of Rs. 500/ each and five GC notes of Rs. 100/ CBI Vs. Surender Pal CC No. 54/2011 Page 33 of 54 each). The numbers of currency notes were noted and some power was smeared on the said currency notes and demonstration regarding chemical reaction of phenolphthalein powder with the sodium carbonate was given. Currency notes were kept in left side of the pocket of the complainant by PW R. S. Kataria. The complainant was directed not to touch GC notes and to pay bribe to the accused only on his demand and after completion of the transaction to give the signal to the CBI officials. During pretrap proceedings, complainant made telephonic call to the accused. During this conversation, accused asked the complainant to come fast and when the complainant told that he was having only Rs. 2000/, accused told the complainant to come. There was also discussion between the accused and the complainant regarding filing of bail application by the other party.

Complainant stated that after pretrap proceedings, he himself along with the raiding party left for the PS Shalimar Bagh at about 6.30 pm. He was given digital tape recorder and he along with the one witness went to PS Shalimar Bagh on foot and remaining members of the raiding party took their position at some distance. Complainant telephoned the accused regarding his arrival at PS on which after about 510 minutes, accused came outside the police station. Complainant told him that he had brought the money but he was feeling hot and thereafter accused asked him to sit on the pillion seat of the motorcycle to have drinks. Complainant and accused went to nearby market on the motorcycle. Accused offered the complainant cold CBI Vs. Surender Pal CC No. 54/2011 Page 34 of 54 drinks and thereafter accused took out some papers from the dickey of the motorcycle and told that the complainant that other party has filed the bail application. Accused demanded bribe from the complainant by gesticulation of his left hand, on which complainant paid tainted GC notes to the accused which were accepted by accused from his right hand.

Accused was asked to pick up the same and he was surprised and started crying "Haye main mar gaya" . The number of the currency notes was tallied by R. S. Kataria from the handing over memo Ex. PW 1/B and same were found to be same. Right hand wash of the accused was taken which showed the presence of phenolphthalein powder. The left hand wash of the accused could be taken in the PS as he resisted to give the same at the spot. The Digital recorder was taken back from the complainant and recorded conversation were transfered into a cassette. Recovery memo Ex. PW 1/C was prepared. Complainant stated that on 14.12.2006 he was called in the PS, transcription of pretrap and ontrap conversation Ex. PW 1/D and 1/E were prepared.

Cassette Q1 (Ex. P1) relating to pretrap telephonic conversation was duly played in the court. The complainant identified the voice of independent witnesses PW7 Rajesh Kumar and PW9 RS Kataria. He also identified the voice of accused and himself in the cassette. The entire conversation in the transcription Ex. PW1/D was duly identified by the CBI Vs. Surender Pal CC No. 54/2011 Page 35 of 54 complainant. The voice of the accused has been identified as A1 to A14 and he identified his voice as C1 to C14. The cassette Q2 (Ex. P4) of the on spot conversation was also duly played. The complainant in this cassette also identified the voice of independent witnesses, the voice of the accused and of himself. In this cassette also, the voice as per transcription Ex. PW1/E was duly identified. In this cassette, certain portion was inaudible on account of background voice and multiple speaker. In the crossexamination, the complainant stated that after reaching the market, the conversation between him and the accused lasted for around 78 minutes. In the cross examination, the complainant stated that they were all satisfied with the action taken by the accused on 18.09.2006 regarding proceedings u/S. 107/151 Cr.P.C. During crossexamination complainant stated that during his meeting with the accused on 19.09.2006, there was a demand of bribe by the accused in the sum of Rs. 5,000/. However, when the attention of the accused was invited to his earlier statement regarding the fact that bribe was demanded on 20.09.2006, the complainant admitted that accused had not demanded any bribe from him while conversation on telephone. However, when the complainant told the accused that he has arranged only Rs. 2,000/ , the accused stated " han han aa jao". In the crossexamination, the complainant was crossexamined in detail regarding the conversation between him and the accused after reaching the police station. The complainant stated that during entire conversation between him and the accused in the market, the accused did not enquire whether i.e. complainant CBI Vs. Surender Pal CC No. 54/2011 Page 36 of 54 had brought the money or not and he demanded the money by gesticulation. The defence gave all the suggestion regarding no demand and acceptance by the accused which were denied by the complainant. The suggestion regarding tampering in the recording was also put which was also denied by the complainant. The defence has challenged the testimony of the complainant on the ground of the contradictions in his statement. The law regarding appreciation of evidence is settled to a great extent. The law doesnot expect the proof of a fact to the extent of rigid mathematical demonstration, because that is impossible. The law expect the proof of a fact to convince the mind of the truth or falsehood of a fact or proposition. The proof of a fact depends not upon the accuracy of the statement but upon the probability of having existed. Absolute certainty is seldom to be had in the affairs of life. The practical view would be to reasonably act on the supposition that a fact exist. It would not be practical to speculate on mere possibilities and probabilities. In the absence of reliable evidence, it is wrong to take the view that one possibility is more probable than the other. The settled test of whether a fact is proved of such degree of probability as would satisfy the mind of a reasonable man as to its existence, absolute and conclusive proof is not necessary. The defence has made an attempt to demolish the testimony of the complainant on the ground that he had a animosity against the complainant. The complainant came into contact with the accused after the registration of FIR No. 684/06 on the complaint made by his relatives. The counter case against the complainant party was CBI Vs. Surender Pal CC No. 54/2011 Page 37 of 54 registered much after the present incident. It is pertinent to mention here that complainant party was picked u/S. 107/151 IPC in contrast to the regular criminal case against the opposite party. In view of this, there is no question of nursing any animosity or grudge by the complainant against the accused. It has also to be kept in mind that a person would come into the contact of a police official only when there is a case registered against him or a case registered on his complaint. If a person is neither an accused nor a complainant in any case, there is no possibility of him having come into contact with the police official in any manner. If the plea of the accused is accepted, then in that event all the complaint made by the complainant against the police officials would be suffering on account of presence of animosity and grudge. This may lead to absurd results. Reliance can be placed upon CM Sharma Vs The State of Andhra Pradesh, AIR 2011 SC

608. In this case also, the testimony of the complainant was assailed on the ground that their being strained relations between the complainant and the accused, it is highly improbable that accused would demand the illegal gratification from the accused. In this case, the case of Pannalal Damodar Rathi Vs State of Maharashtra, AIR 1979 SC 1191 was cited. The apex court rejected the arguments of the accused and interalia held that whether the case of prosecution deserves acceptance or not is decided on quality of evidence and no hard and fast rule can be laid in this regard. The accused in "CM Sharma's case (supra) also took a plea that conviction cannot be CBI Vs. Surender Pal CC No. 54/2011 Page 38 of 54 sustained only on the evidence of the complainant without any corroboration being an accomplice. The accused person relied upon Meena Vs The State of Maharashtra (2000) Vol. 5 SCC 21. However, the Apex Court rejected all the arguments of the appellant and inter alia held that "the word "accomplice" has not been defined in the Evidence Act and therefore presumed to have been used in a ordinary sense. A person concerned in the commission of crime, a partner in crime and associate in guilt is an accomplice. He takes part in crime and is privy to the criminal intent. In our opinion, a witness forced to pay on promise of doing or forbearing to do any official act by a public servant, is not a partner in crime and associate in guilt and therefore, cannot be said to be accomplice. It has long been rule of practice, which has become equivalent to rule of law, that the evidence of the accomplice is admissible but to be acted upon, ordinarily requires corroboration. Contractor who gave bribe, therefore, cannot be said to be an accomplice as the same was extorted."

In case of V.K. Kannan Vs. State AIR 2010 Supreme Court 166, it was inter alia held as under :

"According to Balachander PW2, the money was handed over to the appellant in his presence. Immediately after the bribe amount was handed over to the appellant, he started counting the currency notes. At that time Balachander PW2 came out and gave the prearranged signal. Soon thereafter the Inspector and the trap team entered into the above room and the appellant was arrested. The Sodium Carbonate solution was prepared and phenolphthalein test was conducted on both the hands of the appellant separately. There was colour change in the solution and they were preserved in separate bottles.

Balachander PW2 is an independent witness and he has corroborated the evidence of the complainant PW1. Therefore, in the facts and circumstances of this case, it is difficult to accept the CBI Vs. Surender Pal CC No. 54/2011 Page 39 of 54 submission of the appellant that there was no demand and acceptance of the bribe amount. Both the Trial Court and the High Court rejected the defence version of the appellant."

In State Vs. Zakaullah, 1998 SCC (Crl.) 456, it was held by the Supreme Court that evidence of the bribe giver cannot be rejected merely because he is aggrieved by the conduct of the accused. It was further held that nobody overheard the demand made by the accused for bribe or the amount was found in the left pocket of the accused and not in the right pocket, are flippant grounds which should never have merited consideration.

In State of U.P. Vs. Dr. G.K. Ghosh AIR 1984 SC 1453 the apex observed that by and large a citizen is somewhat reluctant, rather than anxious, to complain to the Vigilance Department to have a trap arranged even if illegal gratification is demanded by a Government official. It was inter alia held as under :

"By and large a citizen is somewhat reluctant, rather than anxious, to complain to the Vigilance Department and to have a trap arranged even if illegal gratification is demanded by a Government servant. There are numerous reasons for the reluctance. In the first place, he has to make a number of visits to the office of Vigilance Department and to wait for a number of officers. He has to provide his own currency notes for arranging a trap. He has to comply with several formalities and sign several statements. He has to accompany the officers and participants of the raiding party and play the main role. All the while he has to remain away from his job, work, or avocation. He has to sacrifice his time and effort whilst CBI Vs. Surender Pal CC No. 54/2011 Page 40 of 54 doing so. Thereafter, he has to attend the Court at the time of the trial from day to day. He has to withstand the searching crossexamination by the defence counsel as if he himself is guilty of some fault. In the result, a citizen who has been harassed by a Government officer, has to face all these hazards. And if the explanation offered by the accused is accepted by the Court, he has to face the humiliation of being considered as a person who tried to falsely implicate a Government Servant, not to speak of facing the wrath of the Government servants of the department concerned, in his future dealings with the department. No one would therefore be too keen or too anxious to face such an ordeal. Ordinarily, it is only when a citizen feels oppressed by a feeling of being wronged and finds the situation to be beyond endurance, that he adopts the course of approaching the Vigilance Department for laying a trap. His evidence cannot therefore be easily or lightly brushed aside. Of course, it cannot be gainsaid that it does not mean that the Court should be oblivious of the need for caution and circumspection bearing in mind that one can conceive of cases where an honest or strict Government official may be falsely implicated by a vindictive person to whose demand, for showing favours, or for according a special treatment by giving a gobye to the rules, the official refuses to yield."

14.0 Ld. Counsel for the accused has also challenged the fact regarding tape recording conversation. It is pertinent to mention here that cassette Q1 and Q2 were duly played in the court during recording of evidence and voices were identified by the complainant specifically from point to point. The law regarding tape recorded conversation has been elaborated in detail in a recent case Nilesh Dinkar Paradkar Vs. State of CBI Vs. Surender Pal CC No. 54/2011 Page 41 of 54 Maharashtra, III (2011) SLT 35 . In this case the entire background of law has been put in detail and the same can be reproduced herein even at the cost of brevity for the purpose of clear understanding. In this case it was inter alia held as under :

" In our opinion, 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. This Court, in a number of judgments emphasised the importance of the precautions, which are necessary to be taken in placing any reliance on the evidence of voice identification. In the case of Ziyauddin Burhanuddin Bukhari Vs. Brijmohan Ramdass Mehra & Ors., (1976) 2SCC 17 this Court made following observation :

"We think that the High Court was quite right in holding that the taperecords of speeches were "document", as defined by Section 3 of the Evidence Act, which stood on no different footing than photographs, and that they were admissible in evidence on satisfying the following conditions: "(a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it.

(b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record.

(c) The Subjectmatter recorded had to be shown to be relevant according to rules of relevancy found in the Evidence Act"

In the case of Ram Singh & Or. Vs. Col. Ram Singh, 1985 (Supp) SCC 611, again this Court stated some of the conditions necessary for admissibility of tape recorded statements, as follows :

(1) The voice of the speaker must be duly identified by the maker of the record or by others who recognise CBI Vs. Surender Pal CC No. 54/2011 Page 42 of 54 his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker.

(2) The accuracy of the taperecorded statement has to be proved by the maker of the record by satisfactory evidence - direct or circumstantial.

(3) Every possibility of tampering with or erasure of a part of a taperecorded statement must be ruled out otherwise it may render the said statement out of the context and, therefore, inadmissible.

(4) The statement must be relevant according to the rules of Evidence Act.

(5) The recorded cassette must be carefully sealed and kept in safe or official custody.

(6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances."

In Ram Singh's Case (Supra), this Court also notices with approval the observation made by the Court of Appeal in England in the case of R.V. Maqsud Ali, (1965) 2 AER 464. In the aforesaid case, Marshall J. observed thus :

" We can see no difference in principle between a taperecording and a photograph. In saying this we must not be taken as saying that such recordings are admissible whatever the circumstances, but it does appear to this Court wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved and the voices recorded properly identified; provided also that the evidence is relevant and otherwise admissible, we are satisfied that a taperecording is admissible in evidence. Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case. There can be no question of laying down any exhaustive set of rules CBI Vs. Surender Pal CC No. 54/2011 Page 43 of 54 by which the admissibility of such evidence should be judged."

To the same effect is the judgment in the case of RV Robson, (1972) 2 AER 699 which has also been approved by this Court in Ram Singh's case (supra). In this judgment, Shaw,J. Delivering the judgment of the Central Criminal Court observed as follows :

"The determination of the question is rendered more difficult because taperecordings may 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."

15.0 The tape recorded conversation has been assailed by the complainant primarily on the ground that apparently the entire conversation between the accused and the complainant have not been recorded. Secondly, there is a voice of dog barking in cassette Q1 (P1). Thirdly, contradictions of the witnesses regarding magnetic cassette and ordinary cassette and non production of the Digital Voice Recorder in the court. I have also heard the cassette Ex. P1 (Q1) and Ex. P4 (Q2) during the course of final arguments. As far as the recording in the cassette Q2 is concerned, there is lot of disturbance and background voices. The reason for this seems to be obvious as during this period the complainant was either travelling with the accused on the motorcycle or was present in the market. In such a situation, the disturbance and multiple voices are quite natural. The objection regarding duration of the recording relating to Q2 (P4), it is a matter of record that the recorded conversation in the cassette was somewhere between 67 minutes whereas DVR must have remained with the complainant for a longer period. CBI Vs. Surender Pal CC No. 54/2011 Page 44 of 54 However, the CFSL report is only regarding the active period i.e. period during which some conversation has been placed. For the remaining period, the voice recorder must have remained dormant, therefore there may not have been any recording for that dormant period. As far as the type of cassette used in the voice recorder or non production of DVR is concerned, I consider that it would not be fatal for the case of prosecution. We also have to understand one basic fact that the evidence regarding tape recorded conversation is only corroborative piece of evidence. This evidence is only to strengthen the substantive evidence recorded in the court. If the complainant's evidence is cogent and credit worthy and is reliable as such, it cannot be discarded on the ground that corroborative evidence is weak in nature. The rule of the corroborative evidence is to give strength to the substantive evidence. It cannot demolish the corroborative evidence if there appears to be ring of truth in it. However, as far as present case is concerned the complainant has duly identified his voice and the voice of the accused. The statement recorded are relevant and the expert witness has ruled out any tampering.

16.0 The witnesses can be divided into three categories i.e. unreliable, wholly reliable or partly reliable. If the witness is unreliable, no amount of corroborative evidence can come to the rescue. If the witness is wholly reliable, there may not be need of any corroborative evidence. The importance of the corroborative evidence comes to the rescue if the witness CBI Vs. Surender Pal CC No. 54/2011 Page 45 of 54 is partly reliable. In such a case, the corroborative evidence would give a support to the partly reliable witness. In the present case, the matter to be determined is that whether PW1 Bhupender Singh is unreliable, wholly reliable or partly reliable. The tone and tenor of PW1 Bhupinder Singh takes it out of the category of unreliable witness. A witness cannot be branded to be unreliable on the mere asking of the defence. The case of the prosecution cannot be thrown out merely because the defence has put up some improbable story. The testimony of the prosecution witness cannot be tested on the parameter of mathematical precision. The testimony is required to be seen as a whole. If it inspires the confidence of the court and there is no strong reason to disbelieve it, there is no reason to reject the same. The court is required to take a pragmatic approach and the trial cannot be turned into a battle of wits. The testimony of a witness cannot be rejected on some mere contradictions here and there. I do not see any reason to say that this witness is partly reliable, as I have no reason to say so. There is no reason or motive for this witness to falsely implicate the accused. This court is of the considered opinion that this witness is a wholly reliable witness. He has made a specific statement regarding the demand and acceptance of the bribe by the accused. The minor contradictions which have appeared in his testimony are not sufficient to reject the same. In addition to it, the prosecution by way of testimony of PW2 has duly proved the CFSL report Ex. PW2/A in which it has specifically been proved that the question voice in Q1 and Q2 were compared with the sample voice by auditory and voice CBI Vs. Surender Pal CC No. 54/2011 Page 46 of 54 spectrography technique and it was found that question voice is similar to the specimen voice in respect of linguistic and phonetic features. Any possibility of being tampered with was also ruled out in the tape recorded conversation. PW3 Sh. V.B. Ramteke, Sr. Scientific Officer has duly proved his report Ex. PW3/A and chemical test reveals the presence of phenolphthalein powder. The testimony of PW2 and PW3 have given due support to the testimony of the complainant. The crossexamination of the expert witnesses have not been able to shatter their testimony. PW4 Hemlata, PW5 Vijay Singh and PW6 ASI Prem Singh are the witnesses of formal nature. The defence has raised a voice regarding the contradiction in respect of visit of PW4 with complainant PW1 to the CBI Office. Even at the cost of repetition, it may be stated that only those contradictions which go to the root of the case, can be taken into account. The contradiction which does not affect the core and substratum of the case of the prosecution can be ignored. It would not matter much that whether PW4 Hemlata went to the CBI Office along with PW1. 17.0 The defence has also tried to attack the case of the prosecution on the ground that PW7 did not support the case of the prosecution and the CBI did not declare him hostile and took his testimony as it is. The perusal of the testimony of this witness would reveal that he testified about the treating of the currency notes during the pre trap proceedings and also deposed that he accompanied the CBI team to PS Shalimar Bagh, where he was directed to accompany the complainant, however complainant went with CBI Vs. Surender Pal CC No. 54/2011 Page 47 of 54 the accused on motor cycle and he chased them. The witness also deposed regarding the hand wash of the accused. PW7 deposed on oath that Rs. 2,000/ were recovered from the seat of the motor cycle and PW9 RS Kataria lifted the money lying on the seat. In the crossexamination by the accused, the witness stated that he does not know anything else except whatever he has stated in his examination in chief. He also stated that he had signed the documents on the direction of CBI. The witness admitted that in his presence, the accused was not directed by the CBI officials to pick up the notes from the motor cycle. I consider that the objection of the defence regarding this witness has no basis. Again the basic of appreciation of evidence have to be recalled. As discussed above, the testimony of the witness has to be read as a whole. If witness has not supported his earlier version on certain points, it would not mean that the entire testimony of this witness would be rejected. We may also recall the law regarding hostile witnesses. It is a settled proposition that the testimony of a hostile witness cannot be rejected altogether. Reference can be made to Syed Akbar vs. State of Karnataka AIR 1977 SC 1848. It is a settled law that evidence of a prosecution witness cannot be rejected in wholesale merely on the ground that he did not support the case of the prosecution. Similarly if a witness has not been cross examined by the party calling him, it would not mean that the party had accepted as a truth, the facts which are not deposed by him. If we peruse the testimony if the witness, certain facts have duly been stated by CBI Vs. Surender Pal CC No. 54/2011 Page 48 of 54 him on oath regarding the recovery of tainted notes from the motorcycle of the accused. On the fact of hand wash being taken and preparation of transcription of the pretrap proceeding and on spot conversation, there is no cross examination of the defence regarding this and therefore this has remained unassailed and unchallenged. Inspector Brijesh Kumar, member of the trap team also duly proved the pretrap proceedings. He stated that complainant went with the accused on his motorcycle and both of them were followed by the trap team. It was seen that the accused and the complainant had the cold drink and thereafter accused was seen showing some papers to the complainant and the complainant was seen taking out the money from his shirt pocket and extending the same towards the accused who started counting notes using his both hands. On the signal being received, the accused was apprehended on which he threw the GC notes on the top of the dickey of the motorcycle. Inspector Brijesh Kumar also proved the conduct of the accused, immediately on the raid being conducted. "Maine Kuch nahin Kiya, meri maa mar jayegi". PW9 R.S Kataria recovered the currency notes from the dickey of the motorcycle of the accused. In regard to the remaining proceedings, the witness made a consistent and corroborative statement. The detailed cross examination of this witness was also not able to elicit anything against the prosecution. The minor contradictions which appeared in the testimony of this witness did not go to the root of the case. Mere suggestions were given to the witness, which were simply denied. It is a settled proposition that mere suggestion in absence of any substantive CBI Vs. Surender Pal CC No. 54/2011 Page 49 of 54 evidence does not affect the case of prosecution. This witness again proved the pre trap proceedings and the factum of having seen the complainant handing over some currency notes to the accused and his conduct of throwing the currency on being apprehended by the raiding party, this conduct of the accused immediately after the incident is relevant fact. 18.0 Inspr. RC Sharma, TLO (PW10) in his testimony stated that upon the accused person being challenged for accepting the bribe, he became nervous and stated that 'maine kuch nahi kiya, meri maa mar jayegi'. It is pertinent to mention that conduct of accused persons i.e., remaining mum, getting perplexed, throwing the money or pleading for mercy are significant factor pointing towards the guilt of the accused. Reliance can be placed upon Rao Shiv Bahadur Vs. State of Vindhya Pradesh, AIR 1954 SC 322 and State of Madras Vs. A. Vidyanatha Iyer, AIR 1958 SC 61.

Another independent witness R.S Kataria (PW9) also wholeheartedly supported the case of the prosecution and made consistent and corroborative statement. He deposed in detail regarding the pretrap proceedings and specifically stated that the complainant was seen talking to the accused while the motorcycle was in start position and after some time the complainant sat on the pillion seat of the motor cycle and went along with the accused. PW9 stated that he saw complainant taking out money from his left pocket of the shirt and extended the same to the accused, who CBI Vs. Surender Pal CC No. 54/2011 Page 50 of 54 accepted the money from his right hand and started counting the money from both hands. R.S Kataria stated that he recovered the tainted money from the top of the dickey of the motorcycle. In respect of the further proceeding also, the witness made the consistent and corroborative statement on oath. It is pertinent to mention here that witness also produced the CBI seal in the court, handed over to him after the proceedings. Accused pleaded that witness from MCD was an interested witness as he knew Ravinder who worked in the MCD. The cross examination only led us to the point that witness knew one Ravinder working in the MCD. It may not be misplaced to say that there can be hundreds of Ravinder and accused was not able to connect with the same Ravinder who was arrested by the accused. The contradictions regarding the cassette and the fact that the witness was known to Ravinder, would not make the statement of the witness incredible. It is a matter of record that during the pre trap proceedings, there was no specific demand on behalf of accused as reflected in the transcription. However that would not make the story of the prosecution unbelievable as the complainant has specifically mentioned in his complaint Ex. PW1/A which has duly been proved on record and the complainant also made the similar statement before the court. The court has to look for the core evidence relating to the demand and acceptance of the bribe. In this regard the testimony of the complainant is quite strong and derives support from other witnesses and circumstances. PW10 Inspector RC Sharma in his testimony proved the entire proceeding in sync with other witnesses. He narrated the entire chain of events, the CBI Vs. Surender Pal CC No. 54/2011 Page 51 of 54 reproduction of which would not serve any purpose as the other witnesses also have deposed on the same line. In the cross examination, the witness admitted that the verification was not conducted before registration of FIR. It is correct that this was not proper on the part of TLO to directly register the FIR before verification, however for this fault of the TLO, the accused cannot be given any premium. It is a settled preposition that defect in the investigation would not entitle the accused to go away scot free. Reference can be made to HN Rishbud Vs. State of Delhi, AIR 1955 SC 196.

In Leela Ram Vs. State of Haryana, AIR 1999 SC 3717, in reference to lapse in investigation, it was held as under:

"It is now a well settled principle that any irregularity or even an illegality during investigation ought not to be treated as a ground to reject the prosecution case and we need not dilate on the issue excepting referring a decision of this Court [vide State of Rajasthan V. Kishore, AIR 1996 SC 3035]."

Reference can also be made to Kishore Chand V. State of HP, 1990 CrLJ 2290 (SC), State of Rajasthan Vs. Kishore, AIR 1996 SC 3035, Ram Bihari Yadav Vs. State of Bihar & Ors 1998 (4) SCC 517, Amar Singh Vs. Balwinder Singh & Ors. 2003 (2) SCC 518 and Ram Bali Vs State of UP, AIR 2004 SC 2329.

TLO was also cross examined regarding the voice of dog barking during the recording of pre trap proceeding. I have also heard the cassette Q1(EX.P1). It does give an impression of some noise of dog CBI Vs. Surender Pal CC No. 54/2011 Page 52 of 54 barking. It looks little strange, but alone on this point it cannot be held that entire proceeding were fabricated. Now a days, there are many kind of mobile ring tone etc. and there may be a possibility that there is some mobile ring tone giving the impression of dog barking. It may sound far fetched but the possibility cannot be ruled out. The witnesses during the cross examination have consistently stated that recoding was done in the CBI office and there is no question of any dog being there.

TLO also committed a blunder by not seizing the motor cycle or the dickey from which the alleged currency notes were recovered, however again for this fault of the IO, the case of the prosecution cannot be disbelieved in entirety.

19.0 The defence has also raised the argument regarding the contradiction in the fact that whether money was picked up by independent witness R.S Kataria (PW9) or by the accused at the direction of the TLO. I consider that this contradiction again would not go to the root of the case. Inspector Prem Nath (PW11 )another member of the raiding party also made a consistent and corroborative statement on oath and in his cross examination also, nothing material has come which could discredit the story of the persecution.

20.0 I have gone through the judgment cited by the Ld. Counsel for the accused. As far as the legal proposition propounded in the judgments CBI Vs. Surender Pal CC No. 54/2011 Page 53 of 54 cited by the Ld. counsel is concerned, this court has taken guidance from the same, however the same are respectively distinguished on the facts and the circumstances of the case. In view of the above said discussion and considering the facts and circumstances, I consider that prosecution has proved it's case beyond any reasonable doubt and the accused is found guilty for the offence.

21.0 On consideration of the totality of the circumstances of the case, the CBI has been able to establish on the basis of evidence on record that the accused Surender Pal had demanded and received bribe from the complainant and, therefore, guilty of the offence u/S. 7 of Prevention of Corruption Act, 1988 and u/s. 13 (1) (d) read with 13 (2) of Prevention of Corruption Act, 1988 in RC No. 38(A)/06 and convicted accordingly.

Announced in Open Court                               (Dinesh Kumar Sharma)
on 09/08/2012                                        Spl. Judge (PC Act) : CBI
                                                     Saket Courts : New Delhi.




CBI Vs. Surender Pal                      CC No. 54/2011                    Page 54 of 54

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C.B.I. vs . Surender Pal on 16 August, 2012