Delhi District Court
State (Cbi) vs Bhopal Singh on 7 June, 2012
1
IN THE COURT OF SH. DHARMESH SHARMA
SPECIAL JUDGE03 CBI NEW DELHI DISTRICT,
NEW DELHI
CC No.50/2011
RC No.29 (A)/2004/CBI/ACB/ND
In re:
STATE (CBI)
VS
BHOPAL SINGH
S/O INDERAJ SINGH
R/O C6/174 YAMUNA VIHAR
NEW DELHI.
Date on which charge sheet was filed - 07.11.2005
Date on which charges were framed 13.09.2006
Date on which judgment was reserved 02.06.2012
Date on which judgment was Pronounced :05.06.2012
APPEARANCES:
Mr. SC Sharma, Ld.PP for CBI.
Mr. HK Sharma Ld. Counsel for the accused.
05.06.2012
JUDGMENT
Accused Bhopal Singh, s/o Inderaj Singh, Sub Inspector in Delhi Police, posted at Police Post Garhi, PS Lajpat Nagar, New Delhi has been arraigned for trial on the charge that he unlawfully State (CBI) v. Bhopal Singh Page No.1/33 2 detained Dharam Vir Singh and his father Kanchi Lal , r/o A697 Madan Pur Khadar Pur Rehabilitation Colony, Delhi110044 on 19.06.2000 and released them on 21.06.2004 in the morning after giving them severe beatings and directed them to arrange Rs. 12,000/ within two hours as illegal gratification as a motive or reward for not implicating them in the murder case of Manju w/o Jaiveer, (brother of Dharamvir Singh) ; and that on the same day i.e. On 21.06.2004 he accepted Rs.5000/ from Dharamvir Singh at PP Garhi.
FACTS
2. In brief, the case of the prosecution is that PW8 Dharamvir Singh lodged a complaint with CBI on 21.06.2004 Ex.PW8/A in vernacular Hindi written by his younger brother PW 10 Rakesh Kumar which translated in English alleges that "accused Bhopal Singh is investigating a case vide FIR No. 430/04 in which his brother Jaiveer has been accused of committing murder of his wife Manju and Jaiveer and Mukesh have been arrested by the police ; and Incharge, PP Garhi SI Bhopal Singh called him and his father at the police chowki and they were beaten up and in the morning that day they were released with direction to bring Rs. State (CBI) v. Bhopal Singh Page No.2/33 3 12,000/ by noon or else they have been threatened that they will be implicated in the murder case of Manju; and that he did not want to pay bribe and action may be taken against SI Bhopal Singh ."
PRE TRAP
3. On the said complaint, the present RC was registered and the investigation was entrusted to PW13 Inspector MM Ansari and it is the case of the prosecution that presence of two independent witnesses namely PW7 Rajinder Kumar Jain and PW9 Om Parkash both working in MCD, Green Park, New Delhi, were requisitioned and a trap team was constituted and the members were apprised about the contents of complaint Ex.PW8/A and introduced to PW Dharamvir Singh; that in order to verify the genuineness of the allegations in the complaint PW8 Dharamvir Singh made a call on mobile no.9811323499 of SI Bhopal Singh and the conversation between him and accused was recorded with the help of digital recorder, which confirmed that PW8 Dharamvir Singh spoke to accused that he could arrange Rs. 5000/ only and accused told him to come to him around noon. After verifying the genuineness of the complaint, the State (CBI) v. Bhopal Singh Page No.3/33 4 present FIR Ex.PW8/B was recorded.
4. The case of the State (CBI) is that the conversation was transferred with the help of a Sanyo compact cassette recorder in a blank audio cassette Q1 and the same was sealed by wrapping the same in a cloth pulanda signed by the witnesses and a memo to this effect was prepared, which is Ex.PW7/B; that PW8 Dharamvir Singh produced a sum of Rs. 5000/ consisting of 3 GC notes of Rs.1000/ and 4 GC notes of Rs.500/ denominations each (Mark P21 to P27) and their distinctive numbers were noted down and the currency notes were applied with Phenolphthalein Powder and a practical demonstration was given about handling of such notes during which process PW 7 Rajinder Kumar Jain touched the currency notes applied with Phenolphthalein Powder and on washing his hand with Sodium Carbonate the solution turned pink. Further as per standard practice,a DVR(digital voice recorder) was provided to PW8 Dharamvir Singh who was directed to put "on" the same as soon as the conversation is struck with the accused and PW9 Om Parkash was told to follow and remain with PW8 to over hear the entire conversation and over see the transaction, and State (CBI) v. Bhopal Singh Page No.4/33 5 instructions were given about the secret message on completion of the transaction. It is the case of the prosecution that all the minor details were mentioned in the handing over memo Ex.PW7/A. TRAP
5. The case of the prosecution is that the trap team led by PW13 Inspector MM Ansari, the complainant, two independent witnesses besides other CBI officials reached at the spot at 4.15 PM; that PW8 Dharamvir Singh alongwith shadow witness PW9 Om Prkash as instructed entered the PP Garhi but they were informed that accused Bhopal Singh was not present as he had gone to the court and would be back within an hour; that the trap team kept waiting for the arrival of accused and at about 5.45 PM, PW8 informed the TLO PW13 that he saw accused going inside the police post and immediately thereafter as instructed PW8 Dharamvir Singh and PW9 Om Parkash followed and went inside the police post and at about 5.50 PM PW9 Om Parkash gave the pre agreed signal and on that the entire team converged on to the spot and at the instance of PW9 Om Parkash they entered the room located in front of gate of the police post where one State (CBI) v. Bhopal Singh Page No.5/33 6 Sub Inspector in uniform with name plate Bhopal Singh was sitting on the chair and complainant was standing nearby; that at the instance of the complainant , PW13 Inspector Ansari after disclosing his identity challenged the accused of having demanded and accepted bribe of Rs.5,000/ from the complainant, which the accused refused.
6. The case of the State (CBI) is that complainant PW8 Dharamvir Singh informed the TLO PW13 Inspector MM Ansari that he contacted Bhopal Singh inside the police post and PW8 expressed his inability to arrange money and accused asked about the shadow witness and was told that he was his brother and accused took them inside his room and accused sat on his chair and instructed the complainant to put the amount of Rs.5000/ that have been arranged inside his table drawer; and that accordingly he took the bribe amount from his upper left side shirt pocket with from his right hand and kept the same inside the middle drawer on his left side which was simultaneously opened by accused Bhopal Singh and after putting the amount, the drawer was closed and the said version was confirmed by PW9 Om Parkash.
State (CBI) v. Bhopal Singh Page No.6/33 7
7. The case of the prosecution is that thereafter on the instructions of the TLO, PW7 Rajinder Kumar Jain took out the bribe amount from the middle table drawer of accused and the tainted money was resting on a soap wrapper of Pears Soap Pure & Gentle ; that the numbers of the recovered GC notes were tallied with the numbers recorded in the handing over memo and found correct; that thereafter the colourless solution of Sodium Carbonate was prepared in a neat clean glass tumbler and accused wash his both hands taken but the solution remained unchanged in its colour and, therefore, the solution was discarded but the wrapper of pear soap on being applied with solution of Sodium Carbonate changed its colour into pink, which solution was transferred into a clean glass bottle marked WPSW Ex.P28 and the wrapper was sealed; that during the proceedings the DVR was taken from complainant and the recorded voice was played on the compact cassette recorder; that the data was transferred into a blank audio cassette Q2 marked Ex.P10; that rough site plan of the place of occurrence was prepared vide Ex.PW7/E and the seizurecumrecovery memo was also prepared, which is Ex.PW7/C and finally the accused was State (CBI) v. Bhopal Singh Page No.7/33 8 arrested vide memo Ex.PW7/D.
8. It is the case of the CBI that during the course of investigation, certified copies of case diaries and other related papers of case FIR 430/04, u/s. 365/302/201/34 IPC, PS Lajpat Nagar of Manju's Murder Case were seized besides call records of mobile number of accused . During investigation, it was found that PW8 Dharamvir Singh and his father Kanchi Lal were not suspect in the murder of Manju w/o Jaiveer.
9. During investigation, the Pear Soap Wash Bottle Ex.
P28 was sent to CFSL besides questioned cassettes Q1 and Q2 after taking sample specimen voice of accused vide S1 and S2 . After receiving the reports from CFSL the present charge sheet was filed against the accused. CHARGE
10. Needless to state that accused was charged for demanding and accepting illegal gratification as per Section 7 of the PC Act and besides committing misconduct being a public servant within the meaning of Section 13 (1) (d) r/w 13 (2) of PC Act. Accused pleaded not guilty and claimed trial. State (CBI) v. Bhopal Singh Page No.8/33 9 PROSECUTION EVIDENCE
11. The prosecution in order to prove its case examined 14 witnesses. The main witnesses for the prosecution were of course complainant PW8 Dharamvir Singh, besides the two public witnesses PW7 Rajinder Kumar Jain ands Om Parkash from the Municipal Corporation of Delhi, complainant's younger brother PW 10 Rakesh Kumar and PW11 Surinder Kumar, cousin brother of PW8 Dharamvir Singh respectively. I shall dwell on their evidence in detail later in my judgment. EXPERT WITNESSES
12. As expert witnesses were examined PW3 C.L.Bansal, retired Senior Scientific Officer, (Chemistry), CFSL, CBI who testified about the chemical report in regard to Pears Soap Wrapper Ex.P28 with its wash containing bottle Mark P01 and the report Ex.PW3/A to the effect that the wash contained traces of Phenolphthalein and Sodium Carbonate.
13. PW6 was Dr. Rajinder Singh, Principal Scientific Officer, CFSL another expert, who examined the questioned audio cassettesQ1 and Q2 visavis specimen voide S1 and S2 and proved his report Ex.PW6/A inter alia holding that the questioned CDs contained the voice of SI Bhopal Singh as State (CBI) v. Bhopal Singh Page No.9/33 10 per the specimen audio cassettes.
WITNESS OF DELHI POLICE
14. There were witnesses from Police Station Lajpat Nagar. PW9 was SI Aditya Ranjan, who deposed about handing over the photo copies of documents 75 in numbers in regard to FIR No.430/04, u/s. 365/302/201/34 IPC, PS Lajpat Nagar vide ProductioncumSeizure Memo Ex.PW2/1.
15. PW4 was Inspector Ranvir Singh, who deposed that on 06.09.2004 he handed over attested copies of daily diary register of PP Garhi from 19.06.2004 to 21.06.2004 Ex.PW14/A1 to A18 vide memo Ex.PW4/A. WITNESS FROM MOBILE COMPANY
16. PW5 was Gulshan Arora, Nodal Officer, Vodafone Essar, who produced documents Ex.PW5/B to Ex.PW5/D to the effect that mobile no.9811323499 was in the name of accused SI Bhopal Singh and proved the call records from 17.06.2004 to 21.06.2004 Ex.PW5/E. SANCTION FOR PROSECUTION
17. PW1 Anil Shukla, Addl.DCP, South District was examined who accorded sanction dated 14.10.2004 vide Ex.PW1/A. State (CBI) v. Bhopal Singh Page No.10/33 11 CBI OFFICIALS
18. PW12 was Inspector Mridula Shukla. She deposed that she prepared the transcript Ex.PW7/H and Ex.PW8/C in the presence of the complaint and independent witnesses on playing the audio cassettes and after completing the investigation filed the charge sheet in the court.
19. PW14 was Inspector Prem Nath, who deposed that besides being member of the team during the successful trap, he prepared D4 which is the transcript of recorded conversation between complainant and the accused Ex.PW7/B during the course of verification of the contents of the complaint.
20. PW13 was Inspector MM Ansari, who was the TLO. STATEMENT OF ACCUSED
21. On the close of the prosecution evidence, accused was examined u/s. 313 Cr.P.C. On putting the incriminating facts and circumstances appearing on the record against him, the accused submitted that the independent witnesses deposed against him out of fear of departmental inquiry in terms of CVC Circular dated 15.12.2005 and he placed his serious challenge to the manner in which the audio cassettes were State (CBI) v. Bhopal Singh Page No.11/33 12 examined by Pw6 Dr. Rajinder Singh. Suffice to state that accused has stated that he was innocent and he has been falsely implicated by PW8 Dharamvir Singh. Accused did not elect to lead evidence in his defence.
22. I have heard Ld.Sr.PP for the State (CBI) and Ld. Defence Counsel for the Act. I have perused the record carefully and minutely.
SANCTION FOR PROSECUTION
23. The sanction for prosecution accorded by PW1 Anil Shukla dated 14.10.2004 Ex.PW1/A was half heartedly challenged to the effect that it was passed in a mechanical manner without application of mind. It was pointed out that PW1 Anil Shukla in his cross examination deposed that from the chemical report he had found that hand wash of accused had produced positive result, which is not the case of the prosecution. I am afraid firstly, there is no challenge to the fact that PW1 was the Competent Authority to remove the accused from service. Secondly, assuming for the sake of convenience that there was non application of mind, the fact is that it was an erroneous exercise of jurisdiction not going to the root of matter and curable as per sub section (3) to Section 19 of the PC Act. The sanction order was an administrative order which demonstrates that it was considered that accused had been caught in a trap when he was accepting Rs. State (CBI) v. Bhopal Singh Page No.12/33 13 5000/ from the complainant and in doing so regard was had to the evidence collected by the CBI. The sanctioning authority considered the broads facts and circumstances of the case and no infirmity or illegality can be found in the passing of such order. DEMAND AND ACCEPTANCE OF BRIBE
24. The prosecution in order to bring home the charge u/s 7 of PC Act is required to prove that the accused either accepted , obtained or attempted to attain illegal gratification from the complainant; and in order to establish the guilt of the accused u/s 13(2) r/w section 13 (1) (d) of PC Act, the prosecution is required to establish that the accused by corrupt or illegal means or by abusing his official position, obtained advantage or a valuable for himself or any other person. In the case of Krishna Ram. v. State of Rajasthan, (2010) 1 SCC (Cri) 147 and (2009) 11 SCC 708, it was held that every acceptance of illegal gratification, whether preceded by a demand or not, would be covered by Section 7 of the Act. But, if the acceptance of an illegal gratification is in pursuance of a demand by the public servant, then it would also fall under Section 13 (1)(d) of the PC Act. PRE CURSOR TO THE CASE
25. PW8 Dharamvir Singh testified that he was married to Kamlesh, real sister of deceased Manju, who was married to his younger brother Jaiveer; that Manju had expired and he was State (CBI) v. Bhopal Singh Page No.13/33 14 locked up in PS Lajpat Nagar by the accused on 11.06..2004 and beaten up by giving slaps, danda blows so much so that his ear went bad on account of beatings. Ld. Defence counsel challenged this part of testimony of PW8 Dharamvir Singh pointing out that contrary to the contents of Ex.PW8/A, PW8 Dharamvir did not state that his father was also locked up with him. This hardly cuts much ice in as much as the cousin brother PW11 Surinder Kumar corroborated that accused Jaiveer and another had been implicated in murder of deceased Manju and the police was looking out for them and he alongwith Dharamvir Singh were also searching for accused Jaiveer at the instance of accused. He testified that the police was able to apprehend Jaiveer and after 34 days of his arrest, one day he received a telephone call from a police man calling upon him to bring Dharamvir Singh and Kanchi Lal to the police post; that both Dharamvir Singh and his father Kanchi Lal were taken to police post and handed over them to the police;that when he was returning just outside the police station, they were able to hear the noises of cries and weeping and later he was told by PW8 Dharamvir that they had been beaten in the Police Station.
26. A minor blemish here in this evidence is that PW8 stated that he was detained on 11.06.2004 while Ex.PW8/A does not indicate the date and the case of the prosecution is that they were State (CBI) v. Bhopal Singh Page No.14/33 15 detained on 19.06.2004 based on the remand papers of the case. It must be appreciated that PW8 Dharamvir Singh was an illiterate and ignorant pressman(dhobi by profession) and it is for that reason the complaint was written by his younger brother Rakesh and the complaint Ex.PW8/A indicates at pointB that the writer of the complaint was Rakesh, s/o Kanchi Lal who corroborated such fact when examined as PW9. The evidence of PW8 Dharamvir Singh that he was released from the unlawful custody by the accused on 21.06.2004 in the morning with the instructions to bring Rs.50,000/, later reduced to Rs.25,000/ and then Rs. 12,000/ cannot be doubted and he corroborated the contents of complaint Ex.PW8/A. Further corroboration comes PW11 Surinder Kumar that accused demanded bribe or else threatened to falsely implicate PW8.
27. Admittedly, as brought out in the evidence of PW4 Inspector Ranvir Singh besides PW2 SI Aditya Ranjan, accused was investigating FIR No.430/04, PS Lajpat Nagar u/s 365/302/201/34 IPC. The reliance by the defence on the part of the testimony of PW2 and PW4 that Dharamvir Singh (PW8) and Kanchi Lal were not implicated in the murder rather reinforces the testimony of PW8 Dharamvir Singh that accused not only detained them unlawfully in the police station and subjected them to physical cruelty but also that he demanded illegal gratification. The power State (CBI) v. Bhopal Singh Page No.15/33 16 imbalance was heavily loaded in favour of accused and an inference can be drawn that he had all the motive to demand illegal gratification failing which threatening the complainant to falsely implicate him or his father in the case. PRE TRAP PROCEEDINGS
28. In so far as pre trap proceedings are concerned, PW7 Rajender Kumar Jain gave a vivid narration of the entire proceedings fully corroborating the testimony of PW13 Inspector M.M.Ansari and corroboration further comes from Pw 9 Omprakash except for few blemish that bribe amount was provided by the CBI and during the demo the currency notes were touched by a constable which version he corrected on cross examination by the Ld. PP.
29. Perusal of the testimony of PW8 reveals that the witness gave a haphazard narration of the incident and came straightway to the manner in which the trap proceedings were done skipping the part about the pre trap proceedings except that he testified that he went to the office of CBI alongwith PW10 Rakesh Kumar and PW11Surender Kumar and lodged the complaint and that he was made to speak to the accused on his mobile and during the conversation the accused told him to bring Rs.12,000/ on the same day.
30. Before I advert to the testimony of the witness in regard to State (CBI) v. Bhopal Singh Page No.16/33 17 the trap, it would be pertinent to mention that witness was declared as hostile by ld.PP and allowed to be cross examined by the Ld. PP in regard to pre trap proceedings. During the cross examination by the Ld PP, the witness stated that he had told the accused that he had arranged Rs.5000/ only and accused told him to come to him to hand over the amount. In the case of Khujji v. State of M.P., AIR 1991 SUPREME COURT 1853, it was observed by their lordships that that the evidence of a witness, declared hostile, is not wholly effaced from the record and that part of the evidence which is otherwise acceptable can be acted upon. It was held that "the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof"
31. As to appreciation of evidence of witnesses, in the case of State of U. P. v. M. K. Anthony , AIR 1985 SC 48 : (1985 Cri LJ 493), it was observed as under:
"While appreciating oral evidence of a witness, the approach must be whether the evidence of the witness read as whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in evidence as a whole, and evaluate them to find out State (CBI) v. Bhopal Singh Page No.17/33 18 whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief."
32. It would be also relevant to refer to the observation of their lordships in the case of Sardul Singh v. State of Haryana, AIR 2002 SC 3462, that is as under :
"There cannot be a prosecution case with a castiron perfection in all respects and it is obligatory for the Courts to analyse, sift and assess the evidence on record, with particular reference to its trustworthiness and truthfulness, by a process of dispassionate judicial scrutiny adopting an objective and reasonable appre ciation of the same, without being obsessed by an air of total suspicion of the case of the prosecution. What is to be insisted upon is not implicit proof. It has often been said that evidence of interested witnesses should be scrutinized more carefully to find out whether it has a ring of truth and if found acceptable and seems to in spire confidence, too, in the mind of the Court, the same cannot be discarded totally merely on account of certain variations or infirmities pointed or even addi tions and embellishments noticed, unless they are of such nature as to undermine the substratum of the evi dence and found to be tainted to the core. Courts have a duty to undertake a complete and comprehensive appreciation of all vital features of the case and the en tire evidence with reference to the broad and reason able probabilities of the case also in their attempt to find out proof beyond reasonable doubt."(emphasis supplied).
TRAP PROCEEDINGS
33. In the light of the said exposition of law, coming to the instant case, PW8 Dharamvir Singh in his examination in chief testified that he went to the PP Garhi accompanied by one PW9 Om Parkash and PW7 Rajinder Kumar Jain , who had met him in the CBI office, and at the PP Garhi some policemen told them that State (CBI) v. Bhopal Singh Page No.18/33 19 the accused had gone to the court and they started waiting for the accused. He testified that when the accused returned to the PP Garhi from the court, he told him that he had arranged Rs. 12,000/ and accused opened his office table's drawer and asked him to put the money inside the drawer. But immediately in the next sentence, the witness corrected himself and stated that he had put Rs.5000/ that consisted of 4 currency notes of Rs.500/ each and 3 currency notes of Rs.1000/ each in denomination. He further deposed that he had put the GC notes on some wrapper in the drawer identified as Ex. PW28 and the currency notes were identified as Ex.P21 to Ex.P27, the numbers of which were written in the handing over memo Ex.PW7/A.
34. There is much to this case than to meet the eyes. At first impression, the testimony of PW8 exhibits an uninspiring tale where in his examination in chief he is supporting the case of the prosecution to the extent that accused had demanded and accepted bribe and it is the haphazard testimony in examination in chief that was put to a proper sequence by ld. Sr.PP for the State. It does appear that PW8 Dharamvir Singh had some difficulty in narrating the events in a proper manner but what decisively bears in my mind is that PW8 complainant Dharamvir Singh also deposed that before the Court on 23.11.2010 that he had been threatened by the accused. The witness was examined State (CBI) v. Bhopal Singh Page No.19/33 20 in chief on that day i.e., 23.11.2010 but cross examination of the witness was deferred at the request of ld. Defence counsel. The order sheet reads as under : "23.11.2010 Present : Shri K.K.Goel, PP for CBI\ Accused on bail.
PW8 Shri Dharambir Singh recorded and discharged. Heard. No other witness is present or served for today. It is submitted by witness Shri Dharambir Singh that he is facing threat and may be harmed in any manner or may be implicated in a false case of charas etc., being a witness in the case. It is submitted by him that security may be provided to him. DCP )South) and SHO, PS Lajpat Nagar are directed to take necessary steps for ensuring the security of witness Sh. Dharambir Singh, who is a resident of PS Lajpat Nagar with address at O11, Lajpat NagarIV, New Delhi, and also works there for gain. A copy of this order be given free of cost to the witness and a copy of the same be also sent to the DCP (South) and SHO, PS Lajpat Nagar for ensuring the security of witness Shri Dharambir Singh. "
35. The judicial record does not spell out what subsequent proceedings took place regarding security to the witness but it does show that the witness could not be served on various dates and finally after 9 months, he was put to cross examination by ld. Defence counsel on 05.08.2011.
36. The testimony of the witness in his cross examination would show that he did a complete somersault deposing that accused had not demanded any money from him directly and it was demanded by him through Surinder Kumar (PW11). He testified that it was Surinder Kumar who told him that the deal had been struck at Rs.12,000/ and he went to the office of CBI at the instance of Surinder Kumar. He further testified that he went State (CBI) v. Bhopal Singh Page No.20/33 21 to the Police Post Garhi alongwith CBI officials, Rakesh and Surinder Kumar and it was Surinder Kumar who took Rs.5000/ from him and put the same in the office table drawer of the accused.
37. On the said volte face, PW8 complainant Dharamvir Singh was cross examined by ld. Sr.PP for the State who confronted him with the tape recorded conversation Q1 (Ex. P6) as well as Q2 (Ex. P10) by playing the same in the court. PW8 complainant Dharamvir Singh after hearing the tape recorded conversation contained in Q1 (Ex. P6) stated that it contained his voice and he was in conversation with the accused. Thereafter, on playing the cassette Q2 (Ex. P10) and on being asked as to who was the person with whom he was in conversation , Court observation was made that the complainant started shivering and trembling on his legs and he was made to sit for few minutes in the court . After sometime, he was called back and put the same question. He first deposed that he was talking with his relative and then he corrected himself and deposed that in the recording he was talking to accused Bhopal Singh.
38. The whole scenario has to be appreciated in the context of order dated 23.11.2010 passed by my ld. Predecessor on the day the witness was examined in chief and cross examined by ld. Sr.PP for the State. On bare perusal of the said order, this court has no State (CBI) v. Bhopal Singh Page No.21/33 22 doubt in its mind that witness was under threat at the behest of the accused and it needs no divine inspiration to gauge mental and psychological state of mind of witness PW8 complainant Dharamvir Singh, who was a poor illiterate man hailing from dalit community fearing for his life and liberty because of coercion or threats applied by the accused or somebody on his behalf.
39. The said circumstance coupled with the fact that when the witness was examined after a period of 9 months and did a total uturn must raise an inference that testimony on 05.08.2011 was not truthful and had been given at the behest of the accused to wriggle out of his testimony recorded on 23.11.2010 and reference can be had to decision of the Apex court in Khujji v.State of M.P. (supra) where the witnesses turned hostile on a subsequent date of hearing so as to wriggle out of the testimony recorded earlier in the court to favour the accused and in the contextual setting of the case, the version of the witnesses in the examination in chief was relied upon by the Court.
40. At the cost of repetition, the testimony of PW8 complainant Dharamvir Singh on 23.11.2010 supports the prosecution case that money was demanded and accepted by the accused who told him to put the money in the drawer and he correctly testified that it was Rs.5000/ which were put by him in the drawer. Mere fact that witness was treated as a hostile by the prosecution on that State (CBI) v. Bhopal Singh Page No.22/33 23 day itself does not wash away his testimony from the record. At the same time, we must look for corroboration as a matter of caution and prudence. On the requirement of corroboration, in the case of M.O.Shamsudhin..vs. State of Kerala (1995) 3 SCC 351, it was observed as under : " It is well settled that the corroborating evidence can be even by way of circumstantial evidence. No general rule can be laid down with respect to quantum of evidence corroborating the testimony of a trap witness which again would depend upon its own facts and circumstances like the nature of the crime, the character of trap witness etc. and other general requirements necessary to sustain the conviction in that case. The court should weigh the evi dence and then see whether corroboration is necessary.
Therefore as a rule of law it cannot be laid down that the evidence of every complainant in a bribery case should be corroborated in all material particulars and otherwise it cannot be acted upon Whether corroboration is necessary and if so to what extent and what should be its nature de pends upon the facts and circumstances of each case. In a case of bribe, the person who pays the bribe and those who act as intermediaries are the only persons who can ordinarily be expected to give evidence about the bribe and it is not possible to get absolutely independent evi dence about the payment of bribe. However, it is cau tioned that the evidence of a bribegiver has to be scruti nised very carefully and it is for the court to consider and appreciate the evidence in a proper manner and decide the question whether a conviction can be based upon it or not in those given circumstances."
41. Coming to the present case with the said proposition of law at the back of our mind, it would bear repetition that PW7 Rajinder Kumar Jain and PW9 Om Parkash testified about the pre trap proceedings resulting in preparation of Handing Over Memo Ex.PW7/A, which is without any blemish. It is in the evidence of PW6 Dr.Rajinder Singh as well as PW 9 that during the pre trap State (CBI) v. Bhopal Singh Page No.23/33 24 proceedings, PW8 complainant Dharamvir Singh had called the accused and had told that he had been able to arrange Rs.12,000/ and that he was speaking from Trans yamuna and accused instructed PW8Dharamvir to come and meet him.
42. PW9 Om Parkash testified that on reaching the spot i.e. PP Garhi as instructed by CBI officials, he alongwith PW8 complainant Dharamvir Singh went inside the PP Garhi but accused was not present and on inquiry it was found that he had gone to court and would be coming back in an hour. He testified that when accused came back PW8 complainant Dharamvir Singh spoke to him and offered certain excuses; that both accused and complainant went inside the police post , while he was left at the gate and he saw PW8 Dharamvir Singh taking out money from his pocket and placing the same in drawer of his table on which accused Bhopal Singh was sitting and he thereafter gave the pre agreed signal to the CBI officials and accused was apprehended. PW9 Om Parkash was examined in chief on 24.11.2010 and on that date his cross examination was deferred at the request of ld. Defence counsel and then the witness was recalled on 26.09.2011 on which date he was cross examined.
43. It is in the cross examination that PW9 Om Parkash also did a somersault and towed the line of defence that during the time they were waiting for the arrival of the accused from the Court, State (CBI) v. Bhopal Singh Page No.24/33 25 PW8 Dharamvir Singh and his relatives had gone inside the Police Post twice or thrice before . He also deposed contrary to the version in his examination in chief on 23.11.2010 that he did not see the complainant putting the money in the drawer of the table in the cabin of the accused. It manifestly appears that this witness had been won over by the accused during the interregnum.
44. It is said that "men may lie but not the circumstances". PW 6 who was cross examined earlier to PW9 on 04.06.2010 and later on 30.05.2011, had not been put any question that PW 8 had gone inside the Police Post along with his relatives nor such questions were put to PW 10 or PW11 Surender. No such suggestion was put to the PW 13 either. Ld defence counsel strenuously urged that Pws were deposing falsely at the instance of TLO. What possible motive the TLO had to falsely implicate him? To my mind, none and he appeared to have discharged his duties in a bonafide manner. There is no suggestion to PW 6, PW9, PW10Rakesh or for that matter PW13 that tained money had been put in the table's drawer prior to the arrival of the accused. P11 Surinder was not cross examined despite affording an opportunity and I must hasten to add that this casual practice of defence counsel seeking un necessary adjournments on the day key witnesses are examined in chief in the Courts has its own sordid reality of unprofessional conduct. Anyhow, I don't see two versions of the State (CBI) v. Bhopal Singh Page No.25/33 26 incident coming from the mouth of the witnesses, as was canvassed by the ld defence counsel, and rather what I find is a defence strategy which changed its colour during the course of trial as it suited the occasion. In so far as, post trap proceedings are concerned, the evidence is that money was taken out from the drawer by PW7 Rajinder Kumar Jain, the number of the currency notes were tallied with the handing over memo Ex PW7/A and on finding same, seized vide memo Ex.PW7/C. It is in evidence that the hand wash of the accused was taken but the solution of Sodium Carbonate did not turn pink and it was thrown away and on the recovery of GC notes, the wrapper of Pear Soap Ex.P28 was applied with solution of sodium carbonate which turned pink and transferred into a clean glass bottle Ex.P1. Ld. Defence counsel with much disdain urged that IO threw away a vital piece of evidence and he should have preserved the solution. I do not see any purpose would have been served by retaining the solution when the hand wash did not bring any positive result at the spot. Rather such evidence goes to suggest that no attempt was made by PW13 TLO to fabricate the said evidence that the trap proceedings were conducted in a fair and bonafide manner by the CBI officials.
TAPE RECORDED CONVERSATION
45. Much challenge was made by ld. Defence counsel to the State (CBI) v. Bhopal Singh Page No.26/33 27 tape recorded conversation Q1 and Q2 strenuously urging that DVR which was primary piece of evidence was not preserved by the IO contrary to the mandate of section 65B of Indian Evidence Act and the secondary evidence cassettes Q1 and Q2 containing the alleged recorded conversation is not authentic and inadmissible in Law. Ld defence counsel has relied on the decision in Ram Singh & Ors. v. Col. Ram Singh, 1985 (Supp) SCC 611 in where the conditions necessary for admissibility for tape recorded statements were laid down as under :
(i) The voice of the speaker must be duly identified by the maker of the record or by others who recognize 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.
(ii) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence - direct or circumstantial.
(iii) 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 context and, therefore, inadmissible.
(iv) The statement must be relevant according to the rules of Evidence Act.
(v)The recorded cassette must be carefully sealed and kept in safe or official custody.
(vi) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances." State (CBI) v. Bhopal Singh Page No.27/33 28
46. First thing first, that there could hardly be any dispute that the recorded conversation vide Q1(P6) or that for that matter Q2 (Ex.P10 ) are relevant to the matter in issue. In the recorded conversation Q1 (P6) the transcript of which is Ex.PW 7/H, the PW8 Complainant Dharamvir repeatedly told the accused that he could only arrange Rs.5000/ and he was speaking from Trans Yamuna after arranging the money and the accused told him to come to see him. Well, the accused was certainly calling him for a tea party or to arrest him or take his statement in the pending murder case. A strange argument was taken by the ld defence counsel, laughable as it seems, that had the accused demanded bribe, he would have been present in the Police Station at the appointed time and would not have gone to the Court. In an apparent case of power imbalance between the accused and the complainant, it can be appreciated that the accused hardly cared if the complainant party was kept waiting for him in the Police Station. The fact is that the poor complainant had no choice as he feared for his life and liberty.
47. Then, in the cassette Q2 (P10) the transcript of which is Ex.PW8/C, the conversation goes like this: A HA.
C SIR MAIN DO BAJE SE GHOOM RAHA HU.
A DO BAJE
State (CBI) v. Bhopal Singh Page No.28/33
29
C DO BAJE AAP DIN ME KAHA GAAYE THE
A KAHI NAHI
C KABHI SEEMA PURI, KABHI NAND NAGRI KABI KAHA
PAISO KE JUGAR MEIN
A YEH KAUN HAI
C BHAI HAI, PAISO KA JUGAR NA BAN RAHA SIR
A CHALO KOI BAAT NAI
C HAI SIR
A
C AAPNE DO GHANTE BOLA, 23 GHANTE HO GAYE YAHAN
PE
A BATA DENGE PHIR
C PASSION NAHI
A YEH KAHA RAHTE HAI
C JAMNA PAAR RAHTE HAIN
A AA JA ANDAR AA JAA AAO
C BOLIYO SARKAR, BOLO SIR
A KAYA BOLU
C BILKUL KAH DUNGA WAHAN SE MAANG NAND NAGRI,
KABHI WAHAN MADANGIR KABHI WAHAN
A AB KAYA KARKE AYA HAI TU
C HAI
A AB KAYA KARKE AYA
C AB SIR PAANCH HAZAAR RUPAYE KA HUA HAI INTAZAM
PAANCH HAZAAR RUPAYE
A KAHAN LAYA HAI
C GIN LIJYE SIR
State (CBI) v. Bhopal Singh Page No.29/33
30
A GIN LETA HUN GIN LETA HU RAKH DO KOI BAAT
NAHIN
C KAL TAK HO JAYEGA
A AARAM SE
C HAI
A AARAM SE THIK HAI EK HAZAAR THIK HAI
C HAI
A TO
C HA
A AUR KUCH NA HO
C
A HA HA
C BAAD MEIN KUCH BAAT HO
A TUM DONI SE KOI BAAT NAHI BILKUL BHI M
C TUM MUJH KO PHIR PAKRO RAGRA NA HO
A TUME KISI SE BAAT TUMNE KISI KO DIYA NA LIYA
PAISEO KA SAMJHA
C PHIR AA GAYE TO
A TERE KO BATA DIYA, KISI KO BATANI KI JAROORAT NAHI
BAAT KARNE KI JARURAT NAHIN JO BAAT HOGI MERE PAAS AA JANA TERE KOI TANG KARE TO C UTHA LENGE TO A KAUN, UNSE MERI BAAT HO GAI HAI KLEAR MAIN UNSE POOCH KE BAAT KARTA HU BINA PUCHE NAHI KARNI HAI HAMARA SAMAJH GAYA C ACHA A KAHI JAANE KI JARURAT NAI CHAL TU JA"
State (CBI) v. Bhopal Singh Page No.30/33 31
48. The said recorded conversation reveals that accused in pursuance of his earlier demand and accepted Rs.5000/ telling him to put the money and assured him that now no one in the police station would be able to touch him. The entire tape recorded conversation heard as a whole in the contextual setting of the case, makes it free from any doubt about its authenticity. Mere fact that tempering was possible is not a factor to disregard the evidence nor a rule of practice or prudence. In so far as the authenticity of Q1 (P11) and Q2 (P10) are concerned, it is in evidence that during pre trap proceedings tape recording telephonic conversation memo Ex.PW7/B was prepared which was signed by all the witnesses. PW13 Inspector MM Ansari the TLO corroborated PW14 Inspector Prem Nath about the manner in which the recorded conversation was transferred from DVR on to a cassette. There was no challenge in the cross examination of the witnesses regarding such procedure adopted that could show that any editing or tampering was done and I must say that the tape recorded conversation contained in Q1 heard by this court during the course of final arguments is having good audio quality with out any background distortion and exhibiting continuity of recording. So far as Q2 (P10) is concerned, it is in the evidence that the recorded conversation in DVR was heard which confirmed the version of complainant and shadow witness and State (CBI) v. Bhopal Singh Page No.31/33 32 that was transferred on a blank audio cassette with the help of Sanyo Compact Recorder and Ex. Q2 was sealed at the spot. No tampering was done with the seals of Q2 and the voice contained in the same was identified by PW8 Dharamvir Singh and it is pertinent to mention that no suggestion was given by the defence to any of the witnesses that the recorded voice in Q1 and Q2 did not belong to accused. It is also in evidence that specimen voice of accused was taken vide memo Ex.PW7/F and that of complainant PW8 Dharamvir vide memo Ex.PW7/G which cassettes were mark S1 and S2 respectively and the same were examined by PW6 Dr. Rajinder Singh who in his report Ex.PW6/A testified without any challenge that the questioned CDs Q1 and Q2 contain recorded voice of accused as per specimen cassette S1 (P14) Both the cassettes Q1 and Q2 have introductory voices of the independent witnesses and it is thereafter the recording is starting, which rules out any tampering with the same.
49. Much has been argued on the applicability of section 65B of the Indian Evidence Act and I would only state that its non compliance does not obliterate the evidentiary value of the recording. The electronic or digital evidence de hor Section 65B is to be tested as per the time immemorial traditional principles of evidence: that the evidence must be relevant to matters in issue: State (CBI) v. Bhopal Singh Page No.32/33 33
that it must be authentic, genuine, free from tempering and lastly that such evidence must be credible to inspire confidence as to its truthfulness. Although the original DVR was not seized, there is nothing to suggest that the copies Q1 and Q2 have been tempered with any manner nor the recording contained therein is hearsay. All such conditions have been fully satisfied in this case. CONCLUSION
50. In the said view of the discussion, I find that the prosecution has been able to prove the guilt of the accused beyond reasonable doubt. The accused Bhopal Singh is convicted of the offence u/s 7 and also for committing offence u/s 13 (1) (d) r/w (2) of the PC Act, 1988.
51. Let the accused be heard on the point of sentence on 07.06.2012.
ANNOUNCED IN THE OPEN COURT TODAY: ON 05.06.2012 (DHARMESH SHARMA) SPECIAL JUDGE 03 (CBI) NEW DELHI DISCTRICT State (CBI) v. Bhopal Singh Page No.33/33 34 IN THE COURT OF SH. DHARMESH SHARMA SPECIAL JUDGE03 CBI NEW DELHI DISTRICT, NEW DELHI CC No.50/2011 RC No.29 (A)/2004/CBI/ACB/ND U/s. 7 & 13 (1) (d) r/w 13 (2) of P.C.Act, 1988.
In re:
STATE (CBI) VS BHOPAL SINGH S/O INDERAJ SINGH R/O C6/174 YAMUNA VIHAR NEW DELHI.
APPEARANCES: Mr. SC Sharma, Ld.PP for CBI.
Mr. HK Sharma Ld. Counsel for the accused.
07.06.2012 ORDER ON THE POINT OF SENTENCE.
52. Heard on the point of sentence and perused the record.
53. Mr. HK Sharma, Ld. Counsel for the convict submits that convict Bhopal Singh is about 61 years of age, and he had put in 30 years of unblemished police service when this case was slapped upon him; that his family consists of his wife, two sons and one daughter; and the convict is now also a lawyer by profession. It is stated that his wife is not earning and totally dependent upon him. It is pointed out that the convict has State (CBI) v. Bhopal Singh Page No.34/33 35 suffered the agony of trial for 8 years now and was in Judicial Custody from 22.06.2004 12/07/2004. It is, therefore, requested that a lenient view may be taken in favour of the convict.
54. Per contra, Mr. SC Sharma, Ld. Special PP for the CBI has urged that no mitigating circumstance exists in this case so as to take a lenient view in favour of the convict and it is urged that exemplary punishment be awarded under the law, since he was a police officer and he should have rather done justice to the poor complainant instead of attempting to get him falsely implicated him in a murder case that he was investigating.
55. It bears repetition that the convict Bhopal Singh was posted as Sub Inspector, Incharge, Police Post Garhi, PS Lajpat Nagar, New Delhi; and he demanded and accepted illegal gratification of Rs.5,000/ from the complainant. The detail facts and circumstances under which the convict demanded illegal gratification from the complainant have already been detailed in judgment dated 05.06.2012. The facts established by the prosecution on the record demonstrate the lure of easy money and the desperation with which the convict demanded and accepted the bribe from the complainant who hailed from the poor strata of the society. The convict was not a low ranking official in the hierarchy of Delhi Police and he was under the mandate to protect the weak against the mighty in the society. State (CBI) v. Bhopal Singh Page No.35/33 36
56. Much is being discussed, written and shown these days at various forums viz., print and electronic media, intellectual class and the so called Civil society about corruption and its impact on the moral fiber of the society, besides political and economic health of the nation. On rampant corruption in our country, their Lordships of the Apex Court in the case of State of Madhya Pradesh v. Shambhu Dayal Nagar, 2007 A.I.R. (SC) 163 :: 2006(8) S.C.C. 693 : 2007(1) SCC(Cri), observed that "Corruption is corroding like cancerous lymph nodes, the vital veins of the body politics, social fabric of efficiency in the public service and demoralizing the honest officers." It was further observed that "Efficiency in public service would improve only when the public servant devotes his sincere attention and does his duty diligently, truthfully, honestly and devotes himself assiduously to the performance of the duties of his post. The reputation of corrupt would gather thick and unchaseably clouds around the conduct of the officer and gain notoriety much faster than the smoke."
57. This Court is not oblivious of adverse impact of corruption that strike at the root of most cherished constitutional postulate of Rule of Law. What also bears in the mind of this Court is also the way the system of administration of justice is being handled by the major stakeholders in the system. This case is a stark illustration of the way the witnesses are treated in the courts. State (CBI) v. Bhopal Singh Page No.36/33 37
There is a tendency somewhere at the Bar that the only way witnesses could be broken during criminal trials is to torment them by making them appear again and again thereby subjecting them to mental stress, resulting in wastage of their valuable time, impacting their costs. Such practices galore are giving a very bad name to the Criminal Justice System in the Country. Undoubtedly such unsavory practices must be deprecated by all means available at our command.
58. Coming to the instant case, I tax my mind and ask as to how in the world the convict could deserve leniency.? Firstly, he palpably abused his official position of police power when he unlawfully detained the complainant and his father for three days, tortured them and then tormented them to arrange the bribe him. Having regard to the observation made by me in my detained judgment, I find that he did not budge from his wrongful misdemeanors and by all accounts threatened the complainant during the trial so much so that the poor complainant tried to wriggle out of his testimony in the court given in the examination in chief . How come the convict deserves mercy? He has tried to sabotage the system of administration of criminal justice. The fact that each of the key witnesses was not cross examined on the day they were produced for examinationinchief demonstrates the sinister strategy adopted by the accused. I am afraid I am State (CBI) v. Bhopal Singh Page No.37/33 38 unable to persuade myself to show any leniency towards the convict.
59. In the totality of the facts and circumstances of the case, I sentence the convict Bhopal Singh to undergo rigorous imprisonment for a period of four years u/s 7 of PC Act and also pay fine of Rs. 25,000/ in default to further undergo RI for a period of six months.
60. I further sentence the convict Bhopal Singh to undergo rigorous imprisonment for a period of four years u/s 13 (2) r/w 13 (1) (d) of PC Act and also pay fine of Rs.25,000/ in default to further undergo RI for a period of six months. Both the sentences shall run concurrently. Benefit u/s. 428 Cr.PC. shall be given to the convict.
61. Copy of the judgment dated 05.06.2012 and order on sentence dated 07.06.2012 be given free of cost to the convict.
62. File be consigned to record room.
ANNOUNCED IN OPEN COURT TODAY: ON 07.06.2012.
(DHARMESH SHARMA) SPECIAL JUDGE 03,CBI NEW DELHI.
State (CBI) v. Bhopal Singh Page No.38/33