Delhi District Court
Cbi vs . 1 Prit Pal Singh, on 31 May, 2012
IN THE COURT OF MANOJ JAIN: SPECIAL JUDGE (PC ACT) (CBI)
SOUTH DISTRICT: SAKET DISTRICT COURTS
NEW DELHI
CC No. 19/2011
RC No. 32(A)/06/CBI/ACB/06
U/s 120B IPC & 7&13(2) r/w 13(1) (d) of PC Act, 1988
CBI Vs. 1 Prit Pal Singh,
Son of Sardar Balwant Singh,
Resident of M-551,
Guru Harkrishan Nagar,
Paschim Vihar, Delhi-41.
2 Gurmeet Singh,
Son of Late Sh. Harnam Singh,
Resident of H. No. 51,
West Avenue, West Punjabi Bagh
New Delhi-26.
Date of Institution : 01.07.2008
Date of framing of charge : 16.11.2009
Date on which case was received on
Transfer by this Court : 28.09.2011
Date of conclusion of arguments : 26.05.2012
Date of Judgment : 31.05.2012
Memo of Appearance
Sh. Jagbir Singh, learned Senior Public Prosecutor for CBI.
Sh. Harsh K. Sharma, learned counsel for accused Prit Pal Singh.
Sh. N. K. Sharma, learned counsel for accused Gurmeet Singh.
CC No. 19/2011 CBI Vs. Prit Pal Singh & Anr. 1 of 45
JUDGMENT
FACTS LEADING TO REGISTRATION OF FIR AND TO FILING OF CHARGE-SHEET 1 Dinesh Khanna was proprietor of one hotel known as Hotel City Center. It was situated in Mahipal Pur Extension, New Delhi. Such hotel was raided by Delhi Police on 25.07.2006 under the supervision of ACP accused no.1 Prit Pal Singh (A-1). Consequent to such raid, FIR No. 474/2006 under Sections 3/4/5/8 of ITP Act was registered with PS Vasant Kunj. According to Dinesh Khanna, Prit Pal Singh had lodged a false case. He met Prit Pal Singh who then asked him to meet him again on 27.07.2006 at GS Mall of accused no.2 Gurmeet Singh (A-2).
2 Dinesh Khanna accordingly went to GS Mall, Karol Bagh and met both the accused there on 27.07.2006. During such meeting, A-1 made a demand of Rs. 10 lacs which was eventually reduced to Rs. 1.5 lacs. It would be pertinent to mention here that said FIR No. 474/2006 was directed against Amit Khanna and others and Amit Khanna happens to be son of complainant Dinesh Khanna. Demand of bribe was made so that name of Amit Khanna was cleared from said case. Dinesh Khanna, in the beginning, refused to accede to such demand. But A-2 Gurmeet Singh intervened and asked him to think over again and to revert back after one day. Ultimately, Dinesh Khanna, for the sake of his repute, agreed to give Rs. 1.5 lacs. He then contacted A-2 who then directed him to pay a sum of Rs. 50,000/- directly to A-1 as first installment.
CC No. 19/2011 CBI Vs. Prit Pal Singh & Anr. 2 of 45 3 It was decided that such payment would be made on
11.08.2006 at 4.00 PM at GS Mall where A-1 would also come.
4 Since Dinesh Khanna did not want to give any bribe, he approached CBI and sought their help in the matter. Written complaint was made by Dinesh Khanna. Insp. Mukesh Kumar was asked to verify the genuineness of the complainant. He verified about accused Prit Pal Singh (A-1) through discreet inquiry and found that he was not enjoying a good reputation.
5 Accordingly, FIR No. RC-DAI-2006-A-0032 was recorded by CBI same day i.e. on 11.08.2006 at 1.00 PM. Trap was decided to be laid and independent witnesses, namely, Sh. Bhavesh Kumar Singh and Sh. Om Prakash were associated. Complainant Dinesh Khanna was introduced to the members of the trap party. Complainant also narrated his complaint to independent witnesses and pre-trap formalities were completed. Complainant also produced a sum of Rs. 50,000/-. These were 100 GC notes of denomination of Rs. 500/-. These were treated with phenolphthalein powder. Practical demonstration regarding chemical reaction with such powder was also given to the independent witnesses. All the members of trap party were briefed. Dinesh Khanna was directed to hand over bribe money to the accused on specific demand. Bhavesh Kumar Singh was asked to act as shadow witness. Dinesh Khanna was also given Digital Voice Recorder with direction to switch the same on before entering the premises of GS Mall so that conversation could be recorded for making certain the motive, demand and acceptance of bribe, if any.
CC No. 19/2011 CBI Vs. Prit Pal Singh & Anr. 3 of 45
6 Trap team left CBI office and reached GS Mall at about 4.15
PM. Complainant along with shadow witness Bhavesh Kumar Singh
entered GS Mall where Gurmeet Singh @ Bachchi (A-2) was already present. 10 minutes later, A-1 Prit Pal Singh also entered GS Mall and then there was conversation amongst Dinesh Khanna and both the accused persons. A-1, however, became suspicious and, therefore, asked Dinesh Khanna in Punjabi language to send shadow witness out of the mall. Dinesh Khanna accordingly asked Bhavesh Kumar Singh to wait outside whereupon shadow witness came out of Mall.
7 Then, there was conversation related to hotel case and A-1 asked complainant to give money to A-2 and such amount was accordingly given to accused A-2.
8 After sometime, A-1 came out of GS Mall from main gate and ran towards side lane of the mall i.e. Hardhayan Singh Road. Insp. Mukesh Kumar contacted complainant Dinesh Khanna on mobile who informed that matter was over and that accused Prit Pal Singh had gone out. A-1 Prit Pal Singh was accordingly intercepted by CBI team. A-2, who was already in the mall, got panicky on hearing the mobile conversation between complainant and Ins. Mukesh and he also left GS Mall from the side gate along with tainted money. Dinesh Khanna tried to follow him but A-2 disappeared in the crowd. Thereafter, Dinesh Khanna came out of GS Mall and saw CBI officials along with A-1.
9 Insp. Mukesh gave his introduction to A-1 and also about the trap team. A-1 was asked whether he had demanded and accepted the CC No. 19/2011 CBI Vs. Prit Pal Singh & Anr. 4 of 45 bribe. He, however, denied having made any demand or accepted any bribe. He was searched but no bribe money was recovered from his person. CBI team then learnt that A-2 Gurmeet Singh had run away with the bribe money. He was given a telephonic call and was asked to return to Mall. He returned to mall at about 5.15 PM and when he was asked about tainted bribe money, initially, he declined having possession of any such money. Recording made on digital voice recorder was played which confirmed payment and acceptance of bribe. Hand-wash of Gurmeet Singh was taken in freshly prepared solution of sodium carbonate which turned pink and on the basis of result of hand-wash and recorded conversation, Gurmeet Singh was arrested. He then disclosed that he had handed over bribe money to Sh. Suresh Kumar Arora at his shop Good-Luck situated in Gaffar Market, Karol Bagh. A-2 Gurmeet Singh then asked his business partner Sh. Suresh Kumar to go there and bring money from Sh. Suresh Kumar Arora. Suresh Kumar (business partner of A-2 Gurmeet Singh) returned after five minutes with such notes and then Sh. Suresh Kumar Arora was also called at the spot who admitted that such money had been given to him by A-2. A-1 was also arrested. Recording of digital voice recorder was transferred to audio cassette and requisite documents were prepared at the spot.
10 Investigation established that A-1 Prit Pal Singh in connivance with A-2 Gurmeet Singh had demanded and accepted Rs. 50,000/- from Dinesh Khanna for bestowing favour in case FIR No. 474/2006 PS Vasant Kunj in which son of Dinesh Khanna was an accused. CFSL Report of hand-wash and CFSL Result regarding specimen voice also indicted both the accused persons and after obtaining sanction for prosecution in respect of A-1, charge-sheet was CC No. 19/2011 CBI Vs. Prit Pal Singh & Anr. 5 of 45 filed in the Court on 01.07.2008.
COGNIZANCE AND CHARGE 11 Cognizance was taken on 30.09.2008 for offences punishable under Section 120B IPC read with Sections 7/13(2)/13(1)(d) of Prevention of Corruption Act, 1988.
12 Both the accused were ordered to be charged for commission of offences under Section 120B IPC read with Sections 7/13(2)/13(1) (d) of Prevention of Corruption Act, 1988 and A-1 Prit Pal Singh was also ordered to be charged for commission of substantive offences punishable under Sections 7/13(2)/13(1)(d) of Prevention of Corruption Act, 1988.
13 Charges were framed on 16.11.2009 to which both the accused pleaded not guilty and claimed trial.
WITNESSES FOR PROSECUTION 14 Prosecution was directed to adduce evidence and has examined sixteen witnesses in all viz. Witnesses can be classified, category -wise, as under:
Independent Witnesses for proving acceptance:
(i) PW10 Dinesh Khanna (complainant).
(ii) PW11 Suresh Kumar (partner of A-2 who had brought back the tainted money at GS Mall from the possession of PW 12 Suresh Arora.
(iii) PW12 Suresh Kumar Arora (person who had been CC No. 19/2011 CBI Vs. Prit Pal Singh & Anr. 6 of 45 given tainted money by A-2 Gurmeet Singh). Witnesses Related To Trap:
(i) PW10 Dinesh Khanna (complainant).
(ii) PW14 Om Prakash (He had also gone to the spot i.e.
GS Mall with CBI Team).
(iii) Insp. Mukesh Kumar, Trap Laying Officer.
Witnesses Related to CDR & Mobile Numbers pertaining to present case:
(i) PW1 R.K. Singh, Nodal Officer, Bharti Airtel Cellular Services.
(ii) PW2 Insp. Ran Singh, (owner of mobile no.
9811717700 with which A-1 had allegedly made a call on 26.07.2006 to mobile no. 9810781626 which belonged to complainant Dinesh Khanna).
(iii) PW8 Harpreet Walia, (subscriber of mobile no.
9811044101 and there were some calls from his such mobile to the mobile of A-2).
(iv) PW9 Amarjeet Singh Cheema, (A-1 was having mobile no. 9818099087 and PW9 Amarjeet Cheema sent request to Airtel for issuance of duplicate mobile chip for said number as the mobile of A-1 had been seized by CBI during investigation).
(v) PW13 Ashok Kumar (subscriber of mobile no.
9811131835 who used to converse with A-2 on mobile no. 9811516987 from his said mobile number).
CC No. 19/2011 CBI Vs. Prit Pal Singh & Anr. 7 of 45
FSL Experts:
(i) PW5 V.B. Ramteke (Senior Scientific Officer who gave
report regarding chemical analysis with respect to hand wash).
(ii) PW6 Dr. Rajender Singh (Director, CFSL who opined that questioned voice of both the accused tallied with their respective specimen voice).
Investigating Officers and other witnesses:
(i) PW16 Insp. S.S. Bhullar (Second Investigating Officer).
(ii) PW 15 Insp. Mukesh Kumar, Trap Laying Officer
(ii) PW3 Neeraj Bharti (Official who was authorized to issue sanction order on behalf of Lieutenant Governor, NCT of Delhi).
(iii) PW4 Mohd. Ali Asraf (official who has proved corrigendum with respect to sanction order).
(iv) PW7 R.N. Vashisht (Investigating Officer of case FIR No. 474/06 PS Vasant Kunj).
STAND OF ACCUSED U/S 313 Cr. P.C. 15 Statements u/s 313 Cr.P.C. of both the accused were recorded.
16 A-1, in his statement u/s 313 Cr.P.C., admitted that he had raided the hotel of complainant. He, however, denied that there was ever any demand of bribe or for that matter acceptance of bribe. He admitted that he had gone to GS Mall of his co-accused Gurmeet Singh that CC No. 19/2011 CBI Vs. Prit Pal Singh & Anr. 8 of 45 evening but according to him, he had gone there merely in order to gather his mobile phone which he had given to Gurmeet Singh for repair and there he met complainant Dinesh Khanna who tried to impress upon him to help him in that hotel case. A-1 Prit Pal Singh also claimed that he expressed his displeasure and told Dinesh Khanna that he did not want to hear anything in context of hotel case and did not indulge in any further conversation with him. He left the shop after reprimanding Gurmeet Singh.
17 A-2 Gurmeet Singh, in his statement u/s 313 Cr.P.C., also claimed that A-1 Prit Pal Singh had come in order to collect his phone which was lying with him for repair. He also claimed that he knew Suresh Kumar Arora who had also come there that day and it was Suresh Arora who introduced him to Dinesh Khanna and then it was Suresh Arora who had asked A-1 Prit Pal Singh to hear Dinesh Khanna in connection with that hotel case. He also claimed that when Dinesh Khanna tried to interact with A-1 Prit Pal Singh in this regard, A-1 Prit Pal Singh left the Mall in anger.
18 Thus, according to both the accused, neither was there any demand nor any acceptance. It is not disputed that Dinesh Khanna had come to GS Mall that day but according to stand of defence, A-1 Prit Pal Singh did not hear anything about such hotel case and rather rebuked the attempt made by Dinesh Khanna in this regard and left in fury.
19 They filed respective statements u/s 313(5) Cr.P.C. as well 20 Accused did not choose to lead any evidence in defence.
CC No. 19/2011 CBI Vs. Prit Pal Singh & Anr. 9 of 45
CONTENTIONS OF CBI
21 Sh. Singh has contended that even though the complainant
has not supported the case of prosecution yet keeping in mind the overall facts and circumstances of the case, it still stands amply proved that both the accused were part of conspiracy which was hatched in a very novel, cunning and innovative manner. According to him, the complainant had no grievance against anyone before his hotel was raided by accused PP Singh. Complainant was aggrieved because his son had been fallaciously implicated in the matter and such implication was with the motive to extort money from complainant. He has also drawn my attention towards CDR of various mobile phones and on the strength of same, it has been contended that these CDR clearly indicate that complainant was in touch with A-2. According to Sh. Singh, A-1 was in service for quite some time and he deliberately did not accept the money himself and rather a meeting was fixed at a neutral place i.e. GS Mall and in terms of conspiracy, he chose to accept the money through his co- accused Gurmeet Singh at his mall. He has also argued that A-1 has no explanation as to why he had gone that day at the mall of A-2. According to him, A-1 has come up with a lame explanation that he had given his mobile phone for repair to A-2. He has also contended that recorded material rather reflects that there was considerable conversation with respect to hotel case which in itself reflects the malafide on the part of A-1. Such conversation rather shows that he never shun complainant. On the other hand, he entered into conversation and kept on conversing with respect to hotel case for quite some time and such conversation also clearly reflects that the money was accepted as bribe. He has also contended that A-1 was able to sense that something fishy was going on CC No. 19/2011 CBI Vs. Prit Pal Singh & Anr. 10 of 45 and to screen his illegal act, he asked complainant to send shadow witness outside the mall. According to him, if A-1 was having good intention and had not demanded or did not want to accept any bribe then there was no occasion for him to have sent shadow witness out of GS Mall. He has also stated that conduct of accused persons is also indicative of their malafide intention as immediately on accepting the money accused PP Singh tried to run away and similarly other co- accused vanished from the scene. They got panicky when complainant entered into mobile conversation with Insp. Mukesh and told him that "Ho Gaya Ho Gaya". Thus, according to learned PP, despite there being hostile testimony of complainant, prosecution has been able to prove its case. He has also argued that it does not create any doubt even if money was ultimately brought from the possession of Suresh Arora. According to him, such tainted money exchanged hands in no time and A-2 had handed over money to Sh. Suresh Arora and Suresh Arora gave that money to Sh. Suresh Kumar and Suresh Kumar produced such tainted money before Insp. Mukesh Kumar and the chain is complete. He admits that Sh. Suresh Kumar and Sh. Suresh Arora have not supported the case of prosecution but re-asserts that in view of the recorded conversation and unexplained presence of A-1 in GS Mall and the conduct (post-trap) of both the accused, complicity of both the accused is clearly made out. Moreover, there is no animosity between CBI officials and the accused persons and there is no reason as to why false proceedings would be drawn and accused would be falsely implicated. It has also been argued that testimony of 1st IO Insp. Mukesh Kumar clearly indicates that incident of payment of bribe/tainted money had, in fact, taken place and there is no reason to disbelieve Insp. Mukesh Kumar. He has also drawn my attention towards reports of CC No. 19/2011 CBI Vs. Prit Pal Singh & Anr. 11 of 45 CFSL which rather support the prosecution version.
DEFENCE CONTENTIONS 22 Sh. H.K. Sharma has defended A-1 and besides making oral submissions, written synopsis has also been filed. His arguments can be enumerated as under:
(a) Complainant and other two public witnesses, namely, Suresh Kumar and Suresh Kumar Arora have demolished the case of prosecution, in toto, as neither demand nor acceptance has been proved in any manner whatsoever by anyone of them.
(b) Shadow witness has not been examined
(c) There is nothing to indicate any sort of conspiracy
between accused.
(d) Tape-recorded conversation cannot be looked into as
DVR on which conversation was allegedly recorded, has not been produced. There was no justification for holding back the primary evidence without any reason.
(e) Complainant himself has failed to identify voice of anyone excepting for his own voice and even Trap Laying Officer has not been able to identify the voice of accused.
(f) No permission was taken from the Court for taking specimen voice sample of accused.
(g) Link evidence is missing and, therefore, report of FSL experts cannot be considered.
(h) Complainant was in constant touch with CBI even before 11.08.2006 and such aspect has been suppressed by CBI with CC No. 19/2011 CBI Vs. Prit Pal Singh & Anr. 12 of 45 ulterior motive.
23 Sh. H.K. Sharma has also contended that A-1 has given his mobile for repair to A-2 and he had gone there to collect the same. Complainant Dinesh Khanna met him there and tried to indulge in conversation with respect to said hotel case. A-1 was not interested in listening anything with respect to such case and rather rebuked Gurmeet Singh and left the hotel in a jiffy and when he had barely come out from the mall, he was apprehended by CBI. Reliance has also been placed by Sh. H.K. Sharma on various judgments in order to buttress his arguments.
24 Sh. N.K. Sharma has also assailed the prosecution case. He has contended that FIR is not substantive piece of evidence and can be used only for corroboration. According to him, such FIR was allegedly based on the written complaint of complainant which complainant himself has absolutely disowned. According to him, there is no evidence as to whether copy of FIR was immediately sent to Court which also raises suspicion that accused persons have been falsely implicated. He has also contended that all the three material public witnesses including complainant have not supported the case of prosecution and prosecution has failed to confront these hostile witnesses with respect to certain important portion appearing in their examination-in-chief and thereby prosecution cannot wriggle out from the unavoidable inference that it does not dispute the correctness of such portion of the statement. He also contends that prosecution has failed to prove the element of demand and acceptance of money by the accused and there is nothing to suggest any sort of conspiracy. He has also attacked the reliance of CC No. 19/2011 CBI Vs. Prit Pal Singh & Anr. 13 of 45 prosecution over the tape recorded conversation citing various reasons viz non-production of original evidence/primary evidence, non- identification of the voice and non-elimination of chances of tampering with the same. He has also relied upon various judgments which I would refer to at appropriate places.
EVALUATION OF EVIDENCE 25 I have given my anxious consideration to the rival contentions and gone through material on record very carefully as well as the written submissions and the authorities cited at the Bar.
26 Undoubtedly, case of prosecution is, to a very large extent, dependent upon the testimony of complainant Dinesh Khanna. As per case of prosecution, when the bribe money was allegedly handed over to A-2 by Dinesh Khanna as per the instructions of A-1, A-2 left GS Mall with tainted money and gave the same to Sh. Suresh Arora. Then tainted money was brought back to GS Mall through Sh. Suresh Kumar (business partner of A-2) and later on Sh. Suresh Arora also came there and admitted that such money was handed over to him by A-2.
27 Let me now see as to what these three material witnesses i.e. Dinesh Khanna, Suresh Kumar Arora and Suresh Kumar have to offer in witness box.
28 I must, at the very outset, remark that neither complainant Dinesh Khanna nor the other two public witnesses have supported the case of prosecution. I would be initially restricting myself to the crucial CC No. 19/2011 CBI Vs. Prit Pal Singh & Anr. 14 of 45 date of 11.08.2006 when the trap was laid and when the accused were allegedly caught.
INCIDENT OF HANDING OVER AND ACCEPTANCE OF BRIBE 29 As per PW10 Dinesh Khanna, he had gone to GS Mall that day and he had met both the accused as well there. But, therefore, he took a complete somersault. He denied any demand of bribe made by anyone or payment of bribe by him to anyone. His testimony was recorded on 19.112011 and in his examination-in-chief recorded that day, he deposed as under:
Next day I got call from Insp. Mukesh at 12.45 PM as I had not reached CBI office. I, however, reached CBI office at 1.00 PM as I was quite near to CBI office at that time. On asking, I told him that I had brought sum of Rs. 50,000/- as directed. He took that money from me and he got prepared a list in which the serial numbers of said notes were mentioned. He had already called two persons. One of them was B.K. Singh. I was told that he was to accompany me. One person then applied white color powder on all the notes which I had brought. I was also given one recorder instrument. Before that, testing was also done on such recorder instrument. I was asked to put that recorder. I kept the same in my front inner pocket of the pants. I was told that meeting had been fixed at G.S. Mall, Karol Bagh where I would meet Suresh Arora also. I along with B.K. Singh went to Karol Bagh and reached near Gaffar Market between 3.30-3.45 PM. I was carrying two mobile phones at that time. One mobile phone was demanded by Insp. Mukesh Singh. He had also reached there along with other officials in other vehicle. That mobile was having last digit as ... 5538. Thereafter, I along with B.K. Singh went CC No. 19/2011 CBI Vs. Prit Pal Singh & Anr. 15 of 45 inside G.S. Mall. We entered from rear gate. We saw Suresh Arora already sitting there along with Gurmeet Singh. Gurmeet Singh is present in court (correctly identified). He is also known as Bachchi. Immediately, I entered inside GS Mall, I came out from the mall as I had forgotten to switch on the recorder. I checked the money and switched on the recorder and came inside the mall again. Suresh Arora then introduced me with Gurmeet Singh and also told me that PP Singh would be arriving soon there. I had also dialed number of Insp. Mukesh so that he could hear everything. We all kept on talking for 15 minutes or so. Before 4.30 PM, accused PP Singh came there at GS Mall. He wished Gurmeet Singh. PP Singh had earlier given one mobile for repairing to Gurmeet Singh. Suresh Arora then introduced me to accused PP Singh and told him that he (myself) was Mr. Khanna. After conversation of 4-5 minutes, PP Singh, however, told that he did not want to hear anything related to hotel case. I suspected that probably PP Singh did not want to talk in this regard in the presence of B.K. Singh and, therefore, I told B.K. Singh to go out for 2-3 minutes. Then I again requested PP Singh to hear me as that hotel case was false. He, however, straightway refused to me in this regard and left mall in anger. He also suspected that perhaps I was recording something. In between I had also disconnected the mobile call. Then I got call from Insp. Mukesh and I told him that PP Singh had already left. He asked whether I had been able to give the money to him to which I replied in negative. Within one or two minutes, Insp.
Mukesh along with two-three other persons came there. He then took Rs. 50,000/- from me and he also then left. There was commotion and many other officials had also collected outside the mall. Then PP Singh was also brought there by some persons. I was asked to stand on one side. After about one hour one senior officer i.e. SP had also CC No. 19/2011 CBI Vs. Prit Pal Singh & Anr. 16 of 45 come at the spot. He also made enquiry from me whether I was able to give bribe money to PP Singh or not and I told him also that I was not able to give any money to PP Singh. Cashier of that mall was also asked to count that money of Rs.
50,000/- and officials from CBI were also tallying the serial number of such notes. They remained there for about two & half -three hours. We left Karol Bagh after around 10.00 PM for CBI office.
Then Insp. Mukesh got written from me one application running into two pages.
30 Naturally, aforesaid version of complainant Dinesh Khanna is in direct contrast as to what he had claimed before CBI.
31 Let me now see as to what Sh. Suresh Arora has to offer.
32 PW12 Sh. Suresh Arora has also failed to utter even a single word in favour of prosecution. He admits that he knew A-2 Gurmeet Singh. Regarding 11.08.2006, he deposed that he had gone to the shop of A-2 that day at about 3.30 PM and A-2 was also in the shop and in the meanwhile complainant Dinesh Khanna also came there. He also deposed that half an hour thereafter, A-1 Prit Pal Singh also came there and then he requested PP Singh to hear Dinesh as according to Dinesh, his son had been implicated in some false matter. He, however, does not know as to what happened thereafter as according to him, thereafter he left GS Mall leaving Dinesh Khanna and both the accused there in GS Mall.
33 PW11 Sh. Suresh Kumar, business partner of A-2, has also not supported the case of prosecution. It will be worthwhile to mention CC No. 19/2011 CBI Vs. Prit Pal Singh & Anr. 17 of 45 here that CBI chose to get his version recorded u/s 164 Cr.P.C. but in his such statement he denied prosecution version absolutely and deposed what he finally also deposed before the court in witness box. He claimed that on 11.08.2006 he was sitting at the cash counter of GS Mall and someone called his name. When he stood up, he saw two persons standing. Those persons were enquiring about Gurmeet Singh and he told that Gurmeet Singh was away to market and would return soon and one of them gave him Rs. 50,000/- in cash and told that said amount was to be given to Gurmeet Singh. He then counted the money. He also sent a boy to call Gurmeet Singh but thereafter those two persons took money back from Sh. Suresh Kumar and he did not know what happened thereafter as there was commotion. He also claimed that Gurmeet Singh was also arguing with those two persons.
34 All the aforesaid three material prosecution witnesses did not prop up the case of prosecution in any manner and they were duly cross-examined by the prosecution with the permission of the Court but despite extensive grilling by the prosecution, they did not utter even a single word against any of the accused. Complainant was even suggested that he was deposing under the pressure of accused. He labelled such suggestion as incorrect.
35 It was never the case of prosecution that Sh. Suresh Arora was already present in GS Mall at the relevant time. It was never the case of prosecution that it was Suresh Arora who had introduced Dinesh Khanna to A-1 Prit Pal Singh. Rather as per the version of CBI, Suresh Arora was called subsequently. A completely new story has been churned out by all these three witnesses. Dinesh Khanna is in absolute CC No. 19/2011 CBI Vs. Prit Pal Singh & Anr. 18 of 45 denial mode. He has, nowhere, whispered that there was ever any demand of bribe from either of the accused. He has, nowhere, deposed that when he had gone to GS Mall, there was any demand. He also denied that he was ever told to pay any bribe money to any of the accused.
ELEMENT OF PRIOR DEMAND 36 Let me now take a step back because as per case set up by the prosecution, there was demand of bribe on 27.07.2006.
37 Hotel of complainant was raided on 25.07.2006 and there is no dispute with respect to such raid being conducted. As per CBI, after such raid, Dinesh Khanna met A-1 Prit Pal Singh and then he i.e. A-1 Prit Pal Singh asked him to meet him on 27.07.2006 in GS Mall of his co- accused A-2 Gurmeet Singh and Dinesh Khanna had met them on 27.07.2006 where there was initial demand of Rs. 10 lacs by the accused which was reduced to Rs. 1.5 lacs.
38 Let me now see whether this aspect of demand has been proved by prosecution or not. This could have been, actually, proved by none other than PW10 Dinesh Khanna but PW10 Dinesh Khanna has not uttered even a single word in this regard either. His examination-in-chief is conspicuously silent about any such meeting dated 27.07.2006. If his testimony is to be believed then within two-three days of raid, he had gone to CBI office and there he met one Mr. Singh who was DIG and he also happened to meet Insp. Mukesh Kumar who was sitting there in the office of CBI and said Insp. Mukesh Kumar intervened and advised CC No. 19/2011 CBI Vs. Prit Pal Singh & Anr. 19 of 45 Dinesh Khanna to sit out for five minutes. Dinesh Khanna came out of the room of DIG and then he was asked whether he could get PP Singh apprehended in connection with demand of money and he was also told that if he was able to get that done, then his hotel case would be closed. On such assurance, Dinesh Khanna told them that he was ready to do that. Thereafter, Insp. Mukesh briefed him and took all the details from him. Insp. Mukesh also told him that he would be in touch with him and that he was to arrange one meeting with PP Singh on any place outside police station. According to further testimony of Dinesh Khanna, Insp. Mukesh Kumar sent some person with Dinesh Khanna to Karol Bagh where Dinesh Khanna met Suresh Arora and that person briefed Suresh Arora and asked him to arrange one meeting between Dinesh Khanna and PP Singh as Suresh Arora knew PP Singh.
39 This is all what he has to offer.
40 He has not uttered even a single word to the effect that there was any sort of meeting between him and accused persons on 27.07.2006. There is no reference of any demand of Rs. 10 lacs which might have been further reduced to Rs. 1.5 lacs. He was duly confronted with his previous statement on this score but despite there being categoric confrontation and suggestions, this witness denied any such meeting or factum of any such demand.
41 I would also like to supplement here that manner in which CBI case has been projected before the Court, it gives an impression that Dinesh Khanna was meeting CBI official for the first time on 11.08.2006. There is no material on record which may even remotely suggest that CC No. 19/2011 CBI Vs. Prit Pal Singh & Anr. 20 of 45 Dinesh Khanna had any occasion to meet any CBI official in connection with the present case before 11.08.2006. Discreet inquiry was also conducted by Insp. Mukesh Kumar same day and FIR was registered immediately at 1.00 PM same day. Even IO/PW15 Insp. Mukesh Kumar has deposed that he was introduced to complainant only on 11.08.2006 by his SP. Sh. S.K. Palsania at 1.00 PM.
42 As per the admitted case of prosecution, Insp. Mukesh was possessing official mobile phone number at that time. Number of such mobile is 20552770. As per admitted case of CBI, complainant is having two mobile phones i.e. 9810781626 and 9910105538.
43 I have seen CDR of mobile no. 9810781626 of complainant. Such record has been proved as Ex. PW1/D. Naturally, if complainant had met CBI or for that matter investigation commenced for the first time on 11.08.2006 then there was no occasion for complainant to have talked to Insp. Mukesh Kumar or any other CBI official prior to that. However, CDR Ex. PW1/D shows to the contrary and there are incoming as well as outgoing calls between said mobile of complainant and CBI official mobile no. 20552770 between 02.08.2006 and 10.08.2006. Prosecution has failed to explain about exchange of such calls.
44 Nobody knows as to why CBI is trying to portray that complainant had met CBI officials for the first time that day only. Admittedly, such like complaint is very sensitive by nature. Even if CBI keeps any such complaint pending and makes any preliminary inquiry before registration of formal FIR, there cannot be said to be any illegality in such act of CBI. It seems to me that complainant must have CC No. 19/2011 CBI Vs. Prit Pal Singh & Anr. 21 of 45 approached CBI well before 11.08.2006. It is also quite possible that during such period, there might be some conversation between complainant and CBI officials and simultaneously there might be some discreet inquiry regarding reputation of PP Singh. But prosecution itself is to be blamed for projecting as if complainant had met CBI for the first time on 11.08.2006. CBI has no option but to accept CDR and it cannot wriggle out from such CDR and has no explanation as to who talked to complainant before 11.08.2006 and why. PW15 Insp. Mukesh Kumar was grilled by defence and he failed to give any answer with respect to question as to who was using said mobile phone prior to 11.08.2006. He admitted that there were calls between said official mobile phone and the said mobile phone of complainant Dinesh Khanna before 11.08.2006. In his cross-examination dated 23.03.2012, he claimed that said mobile number 20552770 was not officially allotted to him and it used to be taken by him on need basis from Insp. Prem Nath. He also claimed that other staff of CBI could also use the same in the absence of Insp. Prem Nath. No document has been placed on record by CBI which may show as to whom such official mobile had been allotted. Witnesses are coming up with evasive answers. Fact, however, remains that CDR reveals that complainant was in touch with CBI even prior to 11.08.2006 and this fact has caused a deep cavity in the case of prosecution.
TAPE RECORDED CONVERSATION - ADMISSIBILITY AND CREDIBILITY 45 A contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under Evidence Act. It is res gestae. In S. PRATAP SINGH V. STATE OF PUNJAB, AIR 1964 SC 72, Apex Court considered the issue and clearly propounded that tape recorded CC No. 19/2011 CBI Vs. Prit Pal Singh & Anr. 22 of 45 talks are admissible in evidence 46 As regards the evidence recorded on a tape Recorder or other mechanical process, court is always required to keep following safeguards in mind:-
(1) The voice of the speaker must be identified by the maker of the record or by others who recognize his voice. Where the voice is 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 voice of the speaker should be audible and not distorted by other sounds or disturbances.
(3) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence.
(4) Every possibility of tampering with or erasure of a part of the tape recorded statement must be ruled out.
(5) The statement must be relevant according to the rules of evidence and (6) The recorded cassette must be carefully sealed and kept in safe custody.
47 Reference be made to Ram Singh & Ors vs Col. Ram Singh AIR 1986 SC 3, R. M. Malkani v. State of Maharashtra AIR 1973 SC 157, two most landmark and often-quoted judgments on the subject.
48 As per case set up by CBI, when complainant had come to the office of CBI on 11.08.2006 at 11.00 AM, pre-trap proceedings were completed and Sh. Bhavesh Kumar Singh was asked to act as shadow witness and was asked to try to overhear the conversation between CC No. 19/2011 CBI Vs. Prit Pal Singh & Anr. 23 of 45 complainant and accused and he was also directed to give signal to CBI team by scratching his head by both hands. Before entering GS Mall, complainant Dinesh Khanna had taken out a mobile phone from the dash board of his car and handed over same to Insp. Mukesh Kumar so that he could attend calls coming on said mobile. Dinesh Khanna was also handed over one Digital Voice Recorder (DVR) so that he could record spot conversation between him and accused. Conversation, which took place at GS Mall, was recorded by complainant on such DVR and the recording, as appearing in Digital Voice Recorder, was transferred to audio cassette at the spot i.e. GS Mall itself. Learned PP has immensely relied upon such tape recorded conversation and he states that such conversation clinches the issue and clearly reveals that not only A-1 had indulged in conversation with complainant and discussed various aspect related to hotel case but also accepted the money.
49 Transcription of such conversation has been proved as Ex. PW14/G. In beginning, it contains introductory voice of shadow witness Bhavesh Kumar Singh and of independent witness Om Prakash and thereafter there is spot conversation.
50 Such conversation, on cassette, was played when complainant Dinesh Khanna graced the witness box. It was observed by the Court that conversation was audible but there was lot of background voice when the cassette was played. Transcription of the conversation was also seen by the Court and it was found that conversation appearing in cassette was longer in duration as compared to the transcript. It was not in complete synchronization. Here I would like to comment that transcript has to be word by word. Prosecution cannot be permitted to CC No. 19/2011 CBI Vs. Prit Pal Singh & Anr. 24 of 45 ignore one or few lines and select some while preparing transcription. Transcription has to be in toto. Undoubtedly, if any particular word or line is not clearly audible, it can always mention so while preparing the transcript. Unrelated conversation has, really speaking, no real significance. But investigating agency has no option but to record in toto and to place the same in toto before the court. It has no business to edit something in transcription.
51 Needless to say that time of court is very precious. It has been experienced that in such type of cases, sometimes, court has to sacrifice whole day for hearing entire such conversation recorded on cassette. CBI is not making best use of the technological tools. There is nothing bad in using DVR if situation so warrants. But there is no logic in transferring contents to cassette. Playing of such conventional cassette, virtually now a stone age tool, requires bringing a cassette player. Biggest drawback of such cassette player is that one cannot run such cassette from a particular point for any particular duration. In case of CD or DVD, conversation can be heard even from a particular fraction of second. It is not so in the case of cassette. Courts are equipped with computer systems and if instead of transferring the contents to cassettes, such contents are transferred to CD or DVD, it would become very easy and convenient for the Court to hear such audio evidence with the help of computer with complete precision. It is high time that CBI should switch over to CD/DVD more so when we are rather entering era where ultimately blue ray disc would phase out even DVD in a very near future.
CC No. 19/2011 CBI Vs. Prit Pal Singh & Anr. 25 of 45 52 Transcription, in the present case, is running into several pages and it is supposed to be the replica of what transpired between complainant and both the accused persons.
53 Complainant has, however, caused serious damage to this valuable piece of evidence as well. When cassette was played, he merely identified his own voice and pleaded his complete ignorance about the voice identity of other two speakers. So much so, he claimed that such cassette was never played to him earlier and he was merely asked to sign some transcript. It was suggested to him by the prosecution that he was deliberately not identifying the voice of accused persons. He labelled such suggestion as wrong and incorrect. When he was cross-examined by the defence, he tried to create further confusion in the case of prosecution by claiming that some part of such conversation had been recorded either in CBI office prior to start of trap and some of the sentences were recorded in the night after the trap was over besides some portion of GS Mall. According to him, one CBI official had clubbed all these conversation in one cassette. According to case of prosecution, except for the introductory voice of independent witnesses Bhavesh Kumar Singh and Om Prakash, remaining conversation was spot conversation but complainant has something else to offer in this regard.
54 Bhavesh Kumar Singh has not entered into witness box. Process was sent to him but he could not be served or produced. I am, however, of the opinion that even if he had entered the witness box, he would not have been of much help to prosecution. After all, as per case of prosecution, accused had become suspicious that something fishy CC No. 19/2011 CBI Vs. Prit Pal Singh & Anr. 26 of 45 was going on and, therefore, complainant Dinesh Khanna was asked to send Bhavesh Kumar Singh out. Immediately Bhavesh Kumar Singh was sent out. Thus, alleged culpable conversation did not take place in the presence of Bhavesh Kumar Singh. Moreover, Bhavesh Kumar Singh did not know Punjabi and even if he had remained there, he would not have probably served the real purpose. In his statement u/s 161 Cr.P.C. he himself claimed that since complainant and accused Gurmeet Singh were talking in Punjabi, he could not understand the details of such conversation. He was not present in the mall when the alleged act of handing over of tainted money took place. He was rather with CBI team outside the mall. CBI should have, in such type of situation, joined a person as shadow witness who knew Punjabi. Be that as it may, fact remains that testimony of complainant has caused irreparable damage to the case of prosecution. He has failed to identify the voice of any other speaker. TLO Insp. Mukesh Kumar has also not come to the rescue of prosecution as when the cassette was played, he merely identified the voice of complainant Dinesh Khanna and claimed that there was lot of background voices as the conversation had been recorded in the mall and it probably contained the conversation of A-1 Prit Pal Singh when he uttered "nahi dene the nahi dene the.( it was not to be given, not to be given). He also failed to identify the voice of accused Gurmeet Singh.
55 Learned PP has, however, argued that even if complainant and Trap Laying Officer have not been able to identify the voice of accused persons, there is scientific evidence on record which shows that such cassette contained voice of complainant and both the accused persons. In this regard, he has relied upon the testimony of PW6 Dr. Rajender Singh. He has contended that specimen voice of both the CC No. 19/2011 CBI Vs. Prit Pal Singh & Anr. 27 of 45 accused persons was taken and was sent to CFSL and using auditory and voice spectrographic technique, Dr. Rajender Singh came to the conclusion that questioned voice of A-1 and A-2 tallied with respective specimen voice in respect of their linguistic, phonetics and other general spectrographic parameters and, therefore, conversation appearing in the cassette contains voice of none other than accused persons and such recorded conversation clearly indicates that accused had made demand and had accepted money also. I have carefully gone through the transcription and also heard recorded conversation.
56 There is no denying the fact that if it is held that conversation, as per transcription, was between complainant and accused persons then A-1 had, in fact, indulged in conversation with respect to said hotel case. It cannot be said that he did not hear anything about the hotel case or that he had become furious immediately. On the other hand, he is found suggesting complainant as to what he was required to do. He even suggested that Amit (son of complainant) should apply for anticipatory bail. Transcription also suggests that one of the speakers also became suspicious as such speaker wondered whether conversation was being recorded. As per transcription, A-1 Prit Pal Singh had asked complainant to give money to his co-accused A-2 Gurmeet Singh by claiming "o hun Bachchi nu de dayo" (that should be now given to Bachchi). Thereupon, complainant claims in the transcription that same had been given to Bachchi by saying "Bachchi nu de daiye". Thereafter, according to the case of prosecution, when such money was handed over to A-2 then A-2 attempts to give that money to A-1 Prit Pal Singh and then Prit Pal Singh refuses to take that money and claimed that this was not required to be given and this could have been given CC No. 19/2011 CBI Vs. Prit Pal Singh & Anr. 28 of 45 some time later by saying that "ae dene nahi si baad wich kadi le lende". Learned PP has contended that transcription clearly indicates that accused Prit Pal Singh had indulged in conversation and had accepted the money through his co-accused and then left mall. He has also contended that since A-2 also became suspicious, he also left the mall immediately and handed over the money to Suresh Arora so as to get away from the clutches of law.
57 I would like to re-emphasize that merely on the basis of recorded conversation and transcription, prosecution cannot bring home the guilt of accused persons. Court has to ensure existence of mandatory requirements, which have already been extracted, before relying upon such recorded conversation. Here, CBI has not bothered to place on record primary evidence i.e. DVR. In such type of delicate cases, such DVR should be made case property. After all, DVR does not cost that big. There is no harm in transferring the contents from DVR to cassette, CD or DVD while taking adequate precautions but that does not mean that thereafter such DVR has to be held back from the Court. Such DVR, by no means, is a primary piece of evidence. It is very handy and portable unit and, therefore, prosecution cannot claim that such unit was too heavy to be transported to the Court.
58 I would hasten to add here that though such DVR was not produced by CBI, out of curiosity, I thought it proper to see such gadget all by myself. Fortunately, I was able to lay hands upon the same make i.e. Cenix. Model is VR-W600F. It is made in Korea. It was found having capacity of 250 MB. It has provision for stopping recording and then to record again another piece of conversation. It has rewind and CC No. 19/2011 CBI Vs. Prit Pal Singh & Anr. 29 of 45 forward feature and volume up and down feature. There is no feature of pause. It has feature of erasing as well. Recorded piece can be heard directly as well as through computer if connected through USB chord. When it is connected with computer, it recognizes it as 'Voice Record USB Device'. In computer, a separate drive is shown for such device. It is found that for every recording there is a new file with new number. Though in property of such file, it is not possible to ascertain date of its creation or modification yet date when accessed can be found. It is very easy to delete any file from such device. It is apparent that when such device was first used in CBI office for recording introductory voices of witnesses, it would have created one file or maximum two files. Then, when it was brought at the spot and was switched on, a new file would have been created. By transferring the same on cassettes, such distinction is liable to be lost whereas, if CD is prepared, then such separate files can be transferred as it is. Though there are numerous free editing software which permit splitting of single file in many and vice versa, merger of various files in one. Therfore, it becomes all the more important to see such primary piece of evidence. Such DVR, when used, should always be made part of case property and I strongly feel that investigating agency should use such device which has no feature of deletion or editing. It should be a 'Read only' device with 'time stamp' for any recorded piece. Only then, it would lend credibility to the case of investigating agency.
59 Then, identification of the voices contained in such audio device is of prime importance. Here recorded conversation allegedly contained voice of accused persons also but complainant has failed to identify any such voice. Tape recorded conversation can be altered and, CC No. 19/2011 CBI Vs. Prit Pal Singh & Anr. 30 of 45 therefore, stringent precautions are required to be taken for its preservation. In the case of Nilesh Dinkar Paradkar Vs. State of Maharashtra (2011) 4 SCC 143, Apex Court has observed that evidence of voice identification is, at best, suspect, if not, wholly unreliable. It has also been observed that it is prone to such extensive and sophisticated tampering, doctoring and editing that the reality can be completely replaced by fiction and, therefore, Courts have to be extremely cautious in basing a conviction purely on the evidence of voice identification.
60 Tape recorded conversation has to act as corroborating piece of evidence. In the present case, primary evidence is the oral evidence of complainant himself. He has disowned the case of prosecution. He does not identify voice of anyone else. In the backdrop of his hostile testimony, it would be highly unsafe to blindly rely upon the tape-recorded conversation and transcript thereof and to convict accused. Moreover, even the transcription as such is not completely indicative of any demand or acceptance. Conviction cannot be meted out on the basis of inferences and conjectures.
61 Indubitably, even if complainant turns hostile and fails to support the case of prosecution, prosecution can still be permitted to rely upon other circumstances. In the present case, however, situation is very complex. Firstly, as already noticed, complainant has not supported the case of prosecution. Secondly, shadow witness did not know Punjabi and did not understand the conversation taking place and was immediately asked to leave the mall and, therefore, at the time of alleged handing over of tainted money, such shadow witness was not present inside the mall. Thirdly and more importantly, as per case of prosecution, CC No. 19/2011 CBI Vs. Prit Pal Singh & Anr. 31 of 45 money was accepted by A-2 Gurmeet Singh who then went out of GS Mall and handed over the money to his friend Suresh Kumar Arora. When CBI team learnt such fact, it should have rather immediately rushed to the shop of Suresh Kumar Arora for recovery of such tainted money. It defies all logic as to why such money was brought back in the most unusual way. Instead of going to the shop of Suresh Kumar Arora, IO asked partner of A-2 to go to that shop and to bring money from Suresh Kumar Arora. Suresh Kumar goes there and brings that money. Hand washes of Suresh Kumar are taken and then Suresh Kumar Arora is also called there and his hand washes are also taken. CBI should have rather ensured that there was no unnecessary intervention of other hands and IO should have himself gone to the shop of Suresh Kumar Arora and should have recovered money without involving any person much less a person who was partner of A-2. Learned PP has tried to defend CBI by saying that that was done so that incident did not turn ugly and no unruly scene was created. If I assume so, then CBI was enjoying luxury of two independent witnesses, namely, Bhavesh Kumar Singh and Om Prakash right at its elbow and one of them could have been sent to the shop of Suresh Kumar Arora but nothing of that sort was done either.
62 As already noticed above, testimony of Suresh Kumar and Suresh Kumar Arora has also caused a huge crack in the foundation of prosecution case. Interestingly, even one more independent witness Sh. Om Parkash has failed to stick to the case of CBI.
CC No. 19/2011 CBI Vs. Prit Pal Singh & Anr. 32 of 45 TAKING OF SPECIMEN VOICE SAMPLE 63 In the case of RAKESH BISHT V. CENTRAL BUREAU OF INVESTIGATION 2007 CRI.L.J. 1530 DELHI, it has been held that accused cannot be compelled to give his voice sample during investigation and if matter is before court then court can direct to give voice sample only for identity purpose and not for the purpose of any inculpatory statement. It has been observed as under:-
"The accused, at the stage of investigation, cannot be compelled to give his voice sample just as he cannot be compelled to undergo a test identification parade. It is for him to give or not to give his voice sample in the course of investigation and the Court cannot, during investigation, direct the accused to give his voice sample."
64 Alleged incident is of 11.08.06. Specimen voice sample were taken next day in presence of witnesses. Again, two things are noteworthy. Firstly, it is not amply clear whether accused had given such sample voluntarily or not. Secondly, PW Om Prakash has pleaded his ignorance about such material fact as he claimed in his cross examination that he did not remember such fact regarding taking of voice sample on 12.08.06. Importantly, this he claims when he is grilled by CBI and not by defence. Such voice sample was not even run by CBI when he was under cross-examination.
65 Identification of such voice is a sine qua non for putting in use such tape recording. Voice of the speaker must be duly identified by the maker of the record or by others who recognize his voice. It is also CC No. 19/2011 CBI Vs. Prit Pal Singh & Anr. 33 of 45 required to be established that such conversation was appropriately recorded and secured and sealed immediately leaving no chance of tempering. If in a particular case, there is suspicion not even say proof, that the tape recording has been tampered with, that would be a good ground for the court to discount wholly of its evidentiary value.
66 Naturally, if Dinesh Khanna is to be believed then when he entered the mall after switching on the recorder, he first met A-2 Gurmeet Singh and talked to him for quite some time. A-1 enters the mall 10 minutes thereafter. If that was so then transcription should have reflected so. If transcription is to be believed then right from the beginning, there is talk between complainant and A-1. Prosecution has failed to give any explanation regarding said anomaly.
PREPARATION OF TRANSCRIPTION 67 Transcription of tape recorded conversation is also one of the important aspect of the case which I cannot resist commenting upon. Incident is of 11.08.2006 and as per CBI, after accused persons were apprehended in GS Mall, contents from DVR were transferred to audio cassette with the help of compact cassette recorder. However, the transcription thereof was prepared on 21.09.2006. In this regard I would like to make reference to document numbered as D-14/1 i.e. Ex. PW14/F. It is 'Transcription-cum-Voice Identification Memo. I again lay stress on the title given to his document. It is not merely Voice Identification Memo. It is related to preparation of transcription as well. If one goes through this document then one would feel that vide said memo dated 21.09.2006, the transcription of the recording was prepared word by CC No. 19/2011 CBI Vs. Prit Pal Singh & Anr. 34 of 45 word as audible and then such transcription was explained to the all the witnesses present in CBI office in vernacular and their signatures were obtained in token of it being prepared correctly. Such transcription Ex. PW14/B bears signatures of complainant, shadow witness, Om Prakash as well as of second IO Insp. S.S. Bhullar.
68 However, it is also very much evident from the record that before said transcription was prepared officially, if I may say so, investigating agency had already prepared one identical transcription. Prosecution is duty bound to come up with complete clarity and precision with respect to such vital fact. It should have made amply clear as to who had prepared such transcription and when.
69 PW15 Insp. Mukesh Kumar is Trap Laying Officer and in his cross-examination dated 23.03.2012, he claimed that he had not prepared any typed transcription in the present case up to 21.08.2006. Audio cassette, which had been prepared at the spot after transferring the contents from DVR, was sealed at the spot and was given marking as Q1 and such cassette Q1 along with specimen voice sample of both the accused was sent to CFSL on 21.08.2006 as is apparent from forwarding letter Ex. PW6/DA (D-11). In such forwarding letter, there is no reference whether any transcription was sent along with said cassette. However, in reality, CFSL possessed such transcription. Ex. PW6/A (D-16) reflects so. After the examination was done by CFSL, audio cassettes along with report etc. were sent to CBI vide letter dated 11.01.2007 (D-16) and in said letter itself, it has been categorically mentioned that forwarding memo was received by CFSL and copy of rough transcription of spot trap conversation running into 10 pages was also received. This means that CC No. 19/2011 CBI Vs. Prit Pal Singh & Anr. 35 of 45 when exhibits were sent for analysis to CFSL, transcription was also sent to CFSL on 21.08.2006 itself.
70 Copy of transcription, which CFSL had received, was also retained on record and was exhibited as Ex. PW6/DA-1 and it needs no discerning eyes to notice that transcription appearing in Ex. PW6/DA-1 and Ex. PW14/G is ditto word by word. It has complexed the entire scenario with respect to preparation of transcription.
71 I would like to add that as per Insp. Mukesh Kumar, he had prepared rough transcription which was for the purpose of taking of specimen voice of accused persons. Yet, if at all he had prepared any such transcription, he should have prepared a memo in this regard. Nothing of that sort has been done. Nobody knows as to how 'annotations' are appearing in such transcription. Nobody knows who identified speakers or whether Insp. Mukesh himself appended such annotations and identified speakers. According to him, transcription, which he had prepared, was handwritten. Nobody knows as to where such handwritten transcription has evaporated. Interestingly, if PW16 Insp. S.S. Bhullar is to be believed then he had received rough transcription from Insp. Mukesh Kumar and on that basis only he had prepared transcription as contained in Ex. PW14/G. If it was only required to be copied ad verbatim then there was no requirement of calling independent witnesses and preparing a memo for the sake of formality. Investigating agency should not have taken such important task in a casual manner.
CC No. 19/2011 CBI Vs. Prit Pal Singh & Anr. 36 of 45 72 Moreover, Forensic experts are not required to be guided. Providing identity of speakers to them would act like suggesting them which is not warranted as that can influence them.
73 As I have already discussed above that DVR has not been made case property. It was never produced before the Court by the prosecution. When the contents were transferred from DVR to audio cassette, such audio cassette was sealed immediately. This is apparent from Recovery Memo Ex. PW10/O. Cassette so prepared i.e. Q1 was sealed with the seal of CBI. It is nowhere mentioned in the Recovery Memo that one more copy of such cassette was prepared with the help of which CBI might have later on prepared any transcription. No CBI official has bothered to throw light as to on what basis such transcription was prepared - whether from DVR or from audio cassette which was ultimately sent to CFSL or with any other copy of audio cassette.
LINK EVIDENCE 74 There is one more surprising aspect of the case. In such type of matters when the case property is required to be kept in malkhana, it becomes bounden duty of CBI to prove all the links. Prosecution is also under legal obligation to show and establish by cogent evidence that such case property remained intact throughout till it reached the safe hands of forensic expert. This is to ensure that case property was not tampered with by anyone at any point of time. This is also to rule out the possibility of any false implication as well. CBI, in fact, gave a damn to such important safeguard. It was asked from Insp. Mukesh Kumar as to where were CC No. 19/2011 CBI Vs. Prit Pal Singh & Anr. 37 of 45 cassettes till 21.08.2006. Surprisingly, he claimed that he did not remember exactly with whom the cassettes of the present case were available. Court had to intervene and a court question was asked as to what he meant by that and then he answered that he did not remember whether cassettes remained with him or were in the malkhana till 21.08.2006. Insp. Mukesh Kumar had no business to keep the cassettes with him. He should have rather deposited the same with malkhana without wasting even a single second. Very purpose of sealing stands frustrated if he chooses to keep the case property with him all along. It rather puts a question mark over the credibility of such cassette. No register pertaining to entries made regarding deposit of case property in malkhana has been placed on record. No witness in this regard has been cited either and thus prosecution itself is to be blamed for the aforesaid serious lapse.
CALL DETAILS RECORD 75 Following mobiles numbers are important.
Sl. No. Mobile Number Subscriber as per CBI
1 9810781626 PW10 Dinesh Khanna
2 9910105538 PW10 Dinesh Khanna
3 9818099087 A-1 Prit Pal Singh
4 9811516987 A-2 Gurmeet Singh
5 20552770 Insp. Mukesh Kumar
6 9811717700 Insp. Ran Singh
CC No. 19/2011 CBI Vs. Prit Pal Singh & Anr. 38 of 45
76 As far mobile of A-2 is concerned, prosecution has not been
able to prove such fact in any manner. When the CDR and the
subscriber customer agreement related to said mobile was seized by CBI vide memo Ex. PW16/A, it was found that said no. 9811516987 was in the name of one Kamal Malhotra resident of Model Basti, Mehak Pura, New Delhi. Prosecution has not been able to throw desired light as to who is this Kamal Malhotra or how is he concerned or related to A-2 Gurmeet Singh? Prosecution examined PW13 Ashok Kumar in order to show that such mobile, in fact, belonged to Gurmeet Singh but PW13 Ashok Kumar has not supported the case of prosecution and denied that said number belonged to Gurmeet Singh. So much so, he has rather gone to the extent of deposing that he did not know Gurmeet Singh and he did not know whether he was proprietor of GS Mall. Concerned service provider has not graced the witness box. CDR has not been proved. Moreover, such CDR cannot be considered by the court as no mandatory certificate u/s 65 B Evidence Act has been attached with such CDR. I would, however, like to mention that when A-2 Gurmeet Singh was arrested and personal search memo was prepared, one mobile phone was recovered from his possession which was bearing IMEI No. 358354002389574. CDR pertaining to mobile no. 9811516987 (contained in D-13/3 to D13/14) indicates IMEI number as 358354002389570 i.e. same barring the last digit. Defence has tried to dig out lot of mileage out of said fact. However, such contention is misplaced. IMEI is known as International Mobile Equipment Identity. The IMEI is a 15 digit number which includes information on the origin, model, and serial number of the device. It helps in uniquely identifying a handset and its location on the network and most importantly allows security agencies to track down a specific user. It can be displayed on most CC No. 19/2011 CBI Vs. Prit Pal Singh & Anr. 39 of 45 phones by dialing *#06#. It is also usually printed on the compliance plate under the battery. However, it is to be noted that though by dialing *#06# one can see IMEI number being displayed on the screen, however, the mobile call records reveal only first 14 digit out of 15 digit and the last digit is always missing which is known as "Check Digit". Such last digit or check digit or spare digit is always registered as '0'. Reference in this regard be made to State (NCT of Delhi) v. Navjot Sandhu, AIR 2005SC 3820. But fact remains that such CDR cannot be considered by the court as no mandatory certificate u/s 65 B Evidence Act has been attached or proved.
CONSPIRACY THEORY 77 Conspiracy is hatched in secrecy. Normally one has to rely on various circumstances to infer conspiracy. In the present case, as far as A-2 Gurmeet Singh is concerned, there is found to be no substantive piece of evidence suggesting his complicity so as to infer any conspiracy. Complainant Dinesh Khanna has not whispered even a single word with respect to any previous demand. Regarding incident dated 11.08.2006 also, prosecution has, at best, been able to show that A-2 was present in GS Mall and A-1 had come there. It can also be inferred that there was some sort of discussion between complainant, A-1 and A-2 but that by itself would neither prove the demand nor acceptance. Mere knowledge or even discussion cannot tantamount to conspiracy per se. Here, no witness has identified voice of A-2.
HAND WASH REPORT 78 As regards hand-wash, again, evidence which has appeared on record is not very convincing. Again complainant has proved to be CC No. 19/2011 CBI Vs. Prit Pal Singh & Anr. 40 of 45 nemesis for prosecution. According to him, when he had entered GS Mall, he realized that he had not switched on the recorder. He came out of the mall and switched on the recorder. According to him, recorder as well as GC notes were in the same pocket. Then he returned to mall where he met A-2 Gurmeet Singh and Suresh Arora. He shook hand with them. Defence counsels have contended that since when complainant had put his hands in his pocket for switching on the recorder, some contents of the powder might have transferred to his hands as the GC notes were lying in the same pocket and when subsequently complainant shook hands with Suresh Arora and Gurmeet Singh, powder got transported to their hands as well and in such a situation, prosecution cannot be permitted to draw any advantage from the hand-wash report. Keeping in mind said fact and hostile testimony of material witnesses, merely on the basis of such report of hand-wash, A-2 cannot be held accountable. Reference in this regard be made to judgment given in the case of P. PARASURMI REDDY VS. STATE OF AP 2011 (VIII) SCALE 625.
79 I would here like to mention that even Recovery Memo (D-4) has been prepared in haste and by applying cut and paste method using computer. In D-4/4 (Ex. PW10/O), there is mention of left hand finger of Gurmeet Singh in both the paras whereas one para was meant for left hand finger and other one was supposed to be for right hand finger. Similarly at page-5, there is reference of right hand wash regarding Suresh Arora but it has been mentioned that Sh. Gurmeet Singh was asked to dip left hand finger in the solution. This seems solely due to the shortcut method applied by the investigating officer. There is no issue with respect to use of computer. It quickens the job but investigating CC No. 19/2011 CBI Vs. Prit Pal Singh & Anr. 41 of 45 officer should have been extra careful.
80 Regarding FIR, though it has been claimed that there is no evidence as to who sent the same to court and when but this issue pales into insignificance as such copy of FIR meant for court is found to be on judicial file and shows that it was received by the court on 12.08.2006 at residence.
HOSTILITY- A MENACE 81 Hostility of a witness is becoming a big menace. Courts are meant to discover truth and undertake journey in quest of justice but task becomes uphill if witnesses do not come up fearlessly and with absolute integrity. Court has no option but to deliver judgment on the basis of legally admissible evidence. Legally admissible evidence is that which is recorded in the court, under oath, and not what investigating agency records during investigation. Naturally, courts have, on few occasions, come across cases which are ultimately found to be false and planted and, therfore, naturally, it will be highly unsafe, even otherwise, to act on such statements recorded during investigation. What matters is the deposition before the court. Nothing else.
82 Witnesses are called 'eyes and ears of justice'. Therefore, if actual justice is to be delivered then witnesses are required to be protected from two demons. Firstly, Muscle i.e. threat or intimidation coming from the side of offender and secondly the lure of money again coming from the opposite side. Surprisingly, complainant expressed peril from accused during the investigation. So much so, he moved CC No. 19/2011 CBI Vs. Prit Pal Singh & Anr. 42 of 45 application in this regard as well. Now, when court calls him and asks him to depose, he rather sings to the tunes of defence. He, point blank, denies being threatened or won over.
83 All the three material public witnesses have deposed in complete synchronization with one another in such a manner so that prosecution case gets demolished on all fronts. I wonder whether some answers given by them are out of any instruction or otherwise.
84 Investigating agency is also required to keep the things very precise and concise. It is experienced that even a small matter is made complex unnecessarily. There is no harm in going for recording of conversation but it should be used very intelligently and not in every case as a routine. It should be used when investigating agency is suspect about the bonafide intention of complainant. If complainant is found to be upright, then there is, really speaking, no fun in going for additional evidence. More so, when such recorded conversation has corroborative value only. Slowly, it is rather becoming a handy tool for defence as on most of the occasions, investigating agency fails to take requisite safeguards for handling such type of electronic evidence. Improper handling, may be out of ignorance, is causing more harm than good.
CONCLUSION 85 Its time for curtain call. To sum up, hostile deposition of all three material public witnesses has given a severe and irreparable jolt to the prosecution case. There is mystery behind preparation of transcription. No witness has been able to identify the voice of accused CC No. 19/2011 CBI Vs. Prit Pal Singh & Anr. 43 of 45 and, therfore, conversation becomes almost superfluous. Moreover, such conversation does not, beyond shadow of doubt, indicate demand or acceptance of bribe. DVR has not seen the light of the day and there is uncertainty over safe custody of case property during investigation period as well. Absence of link evidence cannot be digested nonchalantly. CDR does not take the case of CBI anywhere and moreover, there is no explanation as to why complainant was in touch with CBI even prior to 11.08.2006. Undoubtedly, it is Inspector Mukesh Kumar who has stuck to his version fully. But, then, he was not in picture when demand was earlier made. He was not inside the Mall when bribe was allegedly given. Tainted money has not been recovered from conscious of possession of either of the accused. Keeping in mind said fact, it will not be proper to draw inference as to what happened inside the Mall merely on the basis of speculation. Hostile testimony of independent public witnesses clearly out-weighs testimony of Trap Laying Officer and deflates the CBI case.
86 All these things compel me to grant benefit of doubt to both the accused. Resultantly, they both stand acquitted.
87 Bonds are cancelled. Respective sureties are discharged.
88 Both the accused are simultaneously directed to submit Bonds u/s 437A Cr.P.C.
CC No. 19/2011 CBI Vs. Prit Pal Singh & Anr. 44 of 45 89 Ahlmad is directed to page and book-mark the file so as to enable digitization of the entire record.
90 File be consigned to record Room.
Announced in the open Court
on this 31st of May, 2012 (MANOJ JAIN)
Special Judge (PC Act) (CBI)
South Distt: Saket Courts: New Delhi
CC No. 19/2011 CBI Vs. Prit Pal Singh & Anr. 45 of 45