Delhi District Court
Raman Kalia & Ors. vs State Of Gujarat 1979 Air (Sc) 1261, Babu ... on 20 December, 2019
IN THE COURT OF SH. ARVIND KUMAR
SPECIAL JUDGE, CBI-10, ROUSE AVENUE COURTS
NEW DELHI
CC No. : 08/2017
CNR No : DLCT11-000834-2019
RC No. : DAI-2017-A-0027-DLI
Branch : ACB/CBI/New Delhi
U/S : 120B, 201 IPC & Sec. 7 and
13(2) r/w Sec. 13(1)(d) of P.C. Act, 1988
CBI ..... Complainant
Versus
Deepak Vashist
S/o Sh. Jagdish Chander
R/o 532, Village & Post Mitrao
Najafgarh, Delhi ...... Accused no. 1
Dharam Raj
S/o Sh. Jai Bhagwaan
(I) H No. Room No. 2, House no. 523
Khsara No. 727, Near Radha Krishan Mandir
Mahipalpur, Delhi
CC No. 08/2017 Page no. 1
(ii) House no. 133, Ward no. 13,
Hanuman Colony Near T. B. Hospital
Rohtak (Haryana)-124001. ..... Accused no. 2
Date of Institution : 21.12.2017
Date on which reserved for judgment : 13.12.2019
Date of Judgment : 20.12.2019
Present : Sh. Naveen Giri, Ld. PP for the CBI.
Accused no. Deepak Vashist and accused
Dharam Raj in person.
Sh. Sanjeev Bhardwaj, Ld. Counsel for
accused no. 1
Sh. Hemant Shah, Ld. Counsel for
accused no. 2
JUDGMENT :-
1. Briefly stating, the case of the prosecution is as under :-
(i) The complainant Mange Ram has made complaints dated 03.07.2017 & 10.07.2017 against accused Deepak Vashist, SI, Delhi Police, PS- Vasant Kunj for demanding bribe of Rs.20,000/- for giving favour in the case which was being investigated by accused Deepak Vashisht, SI and also to send a favourable report to the department of CC No. 08/2017 Page no. 2 the complainant related to hours of custody of the complainant.
(ii) It is alleged that on 12.10.2016 complainant had a quarrel with his relatives at his house. An FIR was registered against him at P.S Vasant Kunj, which was being investigated by Deepak Vashisht, SI, PS Vasant Kunj. Sh. Mange Ram, the Complainant was sent to jail in this case on 13.10.2016 and on 15.10.2016 he got released on bail. It is further alleged that the name of his son was also appearing in the said FIR. It is further alleged that earlier Deepak Vashisht, SI put pressure on the complainant to pay Rs. 10,000/- for helping the complainant to get anticipatory bail of his son. The complainant succumbed to pressure and paid Rs. 10,000/- as bribe to accused Deepak Vashist in October 2016. It is further alleged that the suspect officer is again putting pressure on the complainant through other persons and by calling on the mobile no of complainant 9210895602 & 7982822374 to pay bribe to help him in the case and also for giving favourable report to complainant's department regarding the hours of custody of the complainant i.e. for showing less than 48 Hrs of custody. It is further alleged that the accused Deepak Vashisht was regularly putting pressure through other persons to pay bribe. On 03.07.2017, accused Vashisht, SI called from his mobile no. 999961355 on the mobile phone no. 9210895602 of complainant and called him at the police station. Since the complainant did not want to give the bribe, he made complaint to the Supdt. of Police, CBI, ACB, Delhi on 03.07.2017 for taking legal action against Deepak Vashist, CC No. 08/2017 Page no. 3 SI. This complaint was verified on 03.07.2017 and verification was kept open. Complainant was directed to come to CBI office again, if accused Deepak Vashisht, SI put pressure on him again.
(iii) Complainant again came & submitted another hand written complaint on 10.07.2017 in continuation of his earlier complaint dt. 03.07.2017. It is alleged that accused is putting pressure on the complainant to pay bribe through his friends and he is calling him at the Police station. It is alleged that the friend of the complainant has told him that he has to pay bribe to suspect officer Shri Deepak Vashisht, SI, P.S. Vasant Kunj, to get favourable report in his departmental matter and also to get favour for his son in the case. It is further alleged that the suspect officer was calling him on 10.07.2017 at the Police station Vasant Kunj in the evening.
(iv) Discreet verifications of the above said complaints were conducted, and demand of bribe was established on the part of accused Deepak Vashist, for favouring in the case which was being investigated by him and also to send a favourable report to the department of the complainant related to hours of custody of the complainant. A case was registered against Deepak Vashisht u/s 7 PC Act, 1988 on 11.07.2017 and entrusted to Sh. Ramesh Kumar, Inspector, CBI, ACB, Delhi for investigation/laying trap.
(v) That a trap team comprising of Sh. Ramesh Kumar, Inspr, CC No. 08/2017 Page no. 4
Trap Laying Officer (TLO), Anand Sarup, Inspr, N. C. Nawal, Inspr, Shitanshu Sharma, Inspr., Sanjay Upadhyay, Inspr., Manish, SI., T.K. Singh, SI, supporting staff of CBI, two independent witnesses namely Sh.Shakeel Ahmad, Asstt. Manager, SBI and Sh. Satya Pal Sharma, Asst. Gr-II, DSIIDC Delhi was constituted. On the direction of Sh. Ramesh Kumar, Inspector (TLO) all the trap team members including Independent witnesses and complainant assembled at the CBI Office at about 12:30 hrs on 11.07.2017. The above noted independent witnesses, the complainant, and the CBI officers were formally introduced to each other by Shri Ramesh Kumar, Inspector (TLO) CBI, ACB, New Delhi. The purpose of assembly for laying a trap on the accused person was also explained to all the members present.
(vi) That the complainant owned his complaints dtd. 03/07/2017 & 10.07.2017 and told that the same were written and signed by him. The independent witnesses asked certain questions from the complainant for their satisfaction and genuineness of the complaints and satisfied themselves regarding the allegations mentioned in the complaint. Both the verification memos, contents of FIR were also read over and explained to all present.
(vii) The sealed memory cards marked as "Q-1 & Q-2 IN CO 47/2017-DLI" which contained the recorded conversation held between complainant and accused during verification proceedings was taken into police possession. The CBI brass seal used during the CC No. 08/2017 Page no. 5 course of verification on 03.07.2017 was taken back from Sh. Satya Pal Sharma, independent witness for further proceedings. The Digital Voice Recorder (DVR) used during the course of verification was handed over by Shri Shitanshu Sharma, Inspector to TLO for further proceeding.
(viii) That the complainant produced a sum of Rs. 20,000/- comprising 10 numbers of G.C. Notes of Rs.2,000/- denomination details of which were mentioned in the Handing over memo dated 11.07.2017 to hand over the same to accused Deepak Vashist, SI, Delhi Police.
(ix) That a demonstration in respect of reaction of phenolphthalein and solution of sodium carbonate was shown to all the team members including independent witnesses and significance of use of phenolphthalein powder and its chemical reaction with solution of sodium carbonate and water was explained to all present. The numbers of GC notes were recorded in the handing over memo and phenolphthalein powder was applied on the above said GC notes.
(x) That Personal search of the complainant was conducted and he was not allowed to keep any incriminating thing on his person except mobile phone. The tainted bribe amount was then put in the left side shirt pocket of the complainant by Sh. Satya Pal Sharma, independent witness after ensuring that nothing incriminating was left CC No. 08/2017 Page no. 6 with him.
(xi) That trap kit was arranged by TLO containing empty clean glass bottles, tumblers, sodium carbonate & sealing material. The contents of the kit were shown to all present. In a file cover, the complaints, copy of verification memos & FIR of the instant case, stationary material for preparation of required memos etc were kept.
(xii) That a new micro SD card was arranged. The said micro SD card was opened in the presence of independent witnesses and inserted in the DVR. After ensuring the blankness of DVR and memory card, introductory voices of both the independent witnesses were recorded in it. The functions of the DVR were explained to the complainant. All the proceedings were recorded in handing over memo (pre-trap proceedings) which was signed by all concerned in token of its correctness. Thereafter, all the trap team members including both independent witnesses & complainant proceeded to the spot and reached near vicinity at about 1610 hrs. DVR was kept inside the left side shirt pocket of the complainant in switched on and in recording mode.
(xiii) That the complainant along with the shadow witness Sh. Shakeel Ahmad proceeded towards P.S- Vasant Kunj, New Delhi to meet accused SI Deepak Vashisht. Other team members took position in disguised manner in and around of P.S- Vasant Kunj, New Delhi.
CC No. 08/2017 Page no. 7 (xiv) That the complainant and shadow witness entered in to
the Police Station. After about 10 minutes, the complainant Sh. Mange Ram Yadav was seen coming outside the P.S- Vasant Kunj while talking on his mobile phone. Thereafter, he again went inside P.S. Vasant Kunj. The complainant was also seen talking with a person wearing black colour T-Shirt. The complainant came outside the Police Station and informed the TLO regarding transaction of bribe.
(xv) That TLO Shri Ramesh Kumar alerted the trap team members and the DVR was taken back from the complainant and switched off. Sh. Ramesh Kumar, alongwith Sh. Satyapal Sharma, witness and trap team members rushed inside the Police Station. On being asked the complainant informed that he has handed over the bribe amount of Rs. 20,000/- to the person wearing Black T-shirt having healthy built on direction of SI Deepak Vashisht through his mobile phone. Thereafter, the search of the said person was carried out inside the premises of PS Vasant Kunj by all members of trap team. The said person was not found inside the premises of the said Police Station.
(xvi) That TLO alongwith team members rushed toward the room of SI Deepak Vashisht located at 1 st Floor of the Police Station building. SI Deepak Vashisht was found sitting in his Room. He was challenged by the TLO regarding demand and acceptance of bribe of Rs. 20,000/- from the complainant through one another person CC No. 08/2017 Page no. 8 wearing black T. shirt. On which he got perplexed and denied taking any bribe money from the complainant.
(xvii) That the location of CC TV installed in the PS Vasant Kunj was ascertained. Accordingly the CBI team alongwith both the independent witnesses reached in the room of SHO PS Vasant Kunj (North) where CCTV was installed. SHO Police Station Vasant Kunj (North) was present in his room. He was appraised about matter and requested to provide CCTV Footages installed in PS Vasant Kunj. Accordingly he deputed the Addl. SHO Rajesh Kumar for this purpose to facilitate CBI team. Meanwhile SHO Sh. Sanjay Sharma, PS Vasant Kunj (South) came and joined the proceedings. SHO Police Station Vasant Kunj (North) called the engineer from M/s Secureye and informed that engineer is coming within one hour. Meanwhile Constable Karamvir was deputed by SHO, who was well conversant with the functioning of CCTV system installed at PS Vasant Kunj. CCTV footages were run by Constable Karamvir and all the above said members watched the CCTV footages.
(xviii) That the video footages of all cameras installed in the PS were seen in between 1600 Hrs. to 1700 Hrs and it was found that complainant and the person wearing black T Shirt are visible in the footages of Camera CH-1 and CH-5. Accordingly a CCTV footage identification memo dated 11.07.2017 was drawn on the spot and person wearing black T-Shirt was indicated by the complainant. He CC No. 08/2017 Page no. 9 was identified as Constable Dharam Raj by Sh. Sanjay Sharma, SHO and staff of PS Vasant Kunj (South). Constable Dharam Raj was also identified by independent witness Sh. Shakeel Ahmed that he is the person who was talking with complainant. Thereafter Sh. Sanjay Sharma, PS Vasant Kunj (South) contacted constable Dharam Raj from mobile no. 9990307146 of constable Naresh Kumar on mobile No. 9717944650 of Constable Dharam Raj who informed that he is reaching PS Vasant Kunj within 20-30 minutes but he did not turn up. He was contacted again after some time but the mobile phone of Constable Dharam Raj was switched off.
(xix) Thereafter, the complainant was asked to narrate the incident. He told that he went inside the PS - Vasant Kunj and met the accused Deepak Vashist at his room at the first floor. The accused was very suspicious and cautious. He did not demand nor accepted tainted bribe amount in his room. But accused SI Deepak Vashist also told the complainant that he will help in his case as much as possible. Thereafter complainant left the room of the accused SI Deepak Vashist and was coming out from the main gate of PS Vasant Kunj, he received a call from accused Deepak Vashist, SI from mobile No. 9999615355 on his mobile. In the said call accused SI Deepak Vashist directed the complainant to deliver the bribe money to a person wearing black T-shirt who will approach him. The complainant also asked the accused how he will identify the said person on which accused told him that the said person knows him (complainant). After CC No. 08/2017 Page no. 10 some time a healthy person wearing black T-shirt came & approached the complainant. Complainant asked him whether Sh. Deepak Vashist has sent him. He replied yes and told him to deliver the bribe money by saying "Pakda do". The complainant further informed that he handed over the tainted bribe amount of Rs. 20,000/- to the said person (Const. Dharam Raj) who took the bribe money & slipped from the spot immediately without counting the tainted bribe money. Sh. Shakeel Ahmed, independent witness also corroborated the version of complainant.
(xx) That the office search of SI Deepak Vashist was carried out in presence of independent witnesses. The case file in respect of FIR No. 662/2016 was found in his office room. Sh. Sanjay Sharma, SHO P.S Vasant Kunj (South) was requested to provide certified copies of said case file. Accordingly he provided certified copy of said case file alongwith duty roaster in respect of SI Deepak Vashist and Constable Dharam Raj.
(xxi) That Sh. Rohit Singh, Engineer Secureye C/o M/s Fortune Marketing Pvt. Ltd. came and joined the CBI proceedings and he was directed to prepare copies of said CCTV footage from the system installed in the Office of SHO, Vasant Kunj (North). Two Pen Drives were arranged and two copies of the relevant CCTV video footage i.e. CH-1 & CH-5 w.e.f. 1600 hrs. to 1700 hrs were prepared by him. The same were packed in different envelops and sealed with CC No. 08/2017 Page no. 11 CBI Brass Seal.
(xxii) Thereafter, the recorded conversation in DVR was heard in presence of independent witnesses which confirmed the version of the complainant. A rough sketch not to scale of the place of occurrence was prepared at the spot indicating the positions of trap team members, complainant, independent witnesses and accused Constable Dharam Raj. Thereafter CBI team alongwith accused Deepak Vashist, independent witnesses and complainant left the P.S. Vasant Kunj for CBI office.
(xxiii) That on reaching at CBI office, the memory card was taken out from the DVR, kept in its plastic case and then the same was kept in its company packing and the company packing the same was kept in a brown colour envelop which was marked as "Q-3, sealed with CBI seal.
(xxiv) That the specimen voice of accused SI Deepak Vashist was taken which he gave voluntarily, and recorded in a blank memory card through Digital Voice Recorder in the presence of independent witnesses. Thereafter the memory card was taken out from the DVR and the same was kept in its original cover marked as S-1. It was kept in a brown colour envelop and sealed with brass seal of CBI and signed by independent witnesses, TLO and the accused Deepak Vashist. Thereafter, the DVR used during trap proceedings was also CC No. 08/2017 Page no. 12 kept in a brown colour envelope marked as "DVR used in RC-27(A) 2017". This envelop was sealed with brass seal of CBI. The specimen of CBI brass seal were taken on white sheets in ink/lac. The facsimile of the said CBI brass seal is also taken in ink on each page of the recovery memo. Thereafter the said CBI brass seal was handed over to the independent witness Sh. Shakeel Ahmad with the direction to keep the same in safe custody and produce the same before the court as and when required.
(xxv) All the details of the post trap proceedings were incorporated in the Recovery Memo dt.12.07.2017. The recovery memo was read over and explained to all present in vernacular and the same was signed by all concerned in token of its correctness.
(xxvi) During the course of investigation, accused Dharam Raj, Constable did not join the investigation but surrendered himself. During 2 days Police custody, accused Dharam Raj was interrogated, but he concealed the facts and did not co-operate in the investigation, because of his non-co-operation, the tainted bribe money could not be recovered. However, the specimen voice of accused Dharam Raj was taken, which he gave voluntarily, and recorded in memory card through Digital Voice Recorder in presence of independent witnesses. The memory card taken out from the DVR and the same was kept in its original cover marked as S-2. It was kept in an envelope and sealed with CBI brass seal and the envelope also marked as S-2.
CC No. 08/2017 Page no. 13 (xxvii) During the course of investigation, sealed memory cards marked as Q-I, Q-2 & Q-3 containing conversation of accused
Deepak Vashist, SI and Dharam Raj Constable and complainant recorded during verification and trap proceedings were sent to CFSL, New Delhi for preparation copies of the same. CFSL prepared the copies of said Q-I, Q-2 & Q-3 and provided to the CBI, ACB Delhi.
(xxviii) The specimen voice of accused Deepak Vashist, SI and Dharam Raj, Constable in sealed memory cards marked S-I & S-2 questioned voices in memory cards marked Q-I, Q-2 & Q-3 were again sent to CFSL, New Delhi for expert opinion. CFSL opinion on voice comparison.
(xix) Vide identification cum-transcription memos dated 21.09.2017 of Q-I, Q-2 & Q-3 and transcriptions of the recorded conversations between Sh. Mange Ram Yadav, complainant and accused Deepak Vashist complainant and accused Const. Dharam Raj were prepared which confirmed the demand & acceptance of bribe by accused Deepak Vashist, SI through accused Dharam Raj, Constable.
(xxx) Transcriptions of the recorded conversations were prepared in presence of independent witness by playing IO copies of Q-1, Q-2 & Q-3. Complainant identified his voice as well as voices of CC No. 08/2017 Page no. 14 accused persons SI Deepak Vashist and Constable Dharam Raj.
(xxxi) The CAF and CDR of mobile phones of both accused persons and complainant were obtained from the service providers alongwith certificate u/s 65-B of Indian Evidence Act. Mobile No. 9999615355 & mobile no. 9717944650 belongs to accused Deepak Vashist, SI and accused Dharam Raj, constable respectively. Mobile No.7982822374 and 9210895602 belongs to Sh. Mange Ram Yadav (complainant). As per the call details it is clear that the conversation took place between complainant and accused Deepak Vashist and between accused Deepak Vashist and accused Dharam Raj on 11.07.2017 during trap proceedings, just before and after the transaction of tainted bribe money.
(xxxii) That accused Deepak Vashist knowingly left blank space in the arrest memo for filling up the time of arrest of Sh. Mange Ram Yadav complainant in the said memo prepared by him for filling the same later to facilitate the complainant.
(xxxiii) That accused Deepak Vashist, SI demanded and accepted Rs 20,000/- from complainant Shri Mange Ram Yadav as bribe through accused Constable Dharam Raj. Accused Dharam Raj, Const. on the instruction of accused Deepak Vashist also demanded & accepted bribe amount of Rs.20,000/- from complainant. Further accused Dharam Raj, Constable knowingly concealed the bribe CC No. 08/2017 Page no. 15 money and disappeared with intention to save himself and accused SI Deepak Vashist from legal punishment.
(xxxiv) The sanctions for prosecutions in respect of both the accused persons have been obtained from competent authority.
2. Charge-sheet is filed against accused Deepak Vashist and accused Dharam Raj for the offences punishable under Section 120B, 201 IPC & Sec. 7 and 13(2) r/w Sec. 13(1)(d) of P.C. Act, 1988.
3. Vide order dated 08.10.2018, this Court observed that prima facie case is made out against accused no.1 Deepak Vashist for the offences punishable under Section 7 and u/s 13(2) r/w 13(1)
(d) of P.C Act This Court also observed that prima facie case is made out against accused no.2, Dharam Raj for the offence punishable under Section 201 IPC and prima facie case is made out against accused no.1 Deepak Vashist and accused no.2 Dharam Raj for the offences punishable under Section 120B IPC r/w 201 IPC r/w Section 7 and Section 13 (2) r/w Section 13(1) (d) of P.C. Act.
4. On 12.10.2018, a formal charge was framed against the accused persons, wherein, they pleaded not guilty and claimed trial.
CC No. 08/2017 Page no. 16
5. In order to bring home the guilt of the accused, prosecution has examined as many as following 25 witnesses :-
PW-1 Sh. Surender Kumar, Nodal Officer, Bharti Airtel Ltd. He produced the call detail record and customer application form of mobile number 9210895602 in the name of Mange Ram.
PW-2 Sh. Mange Ram Yadav is the complainant. He stated about complaint dated 03.07.2017, Ex. PW2/A and 10.07.2017, Ex.
PW 2/B submitted by him to CBI office. PW-2 deposed regarding the case registered against him in PS Vasant Kunj and that investigation was being conducted by accused Deepak Vashist in the said case. PW-2 also stated about verification memo dated 03.07.2017, Ex. PW2/A which was prepared regarding the proceedings to verify the demand on the part of accused Deepak Vashist. PW-2 deposed about the proceedings conducted on 10.07.2017 and stated that on 10.07.2017 accused Deepak Vashist has not demanded any bribe amount.
CC No. 08/2017 Page no. 17 PW-2 was declared hostile by the prosecution and the entire case was suggested to him by Ld. PP and PW-2 answered to almost all the suggestion in affirmative. PW-2 admitted the suggestions regarding verification proceedings conducted on 03.07.2017, 10.07.2017, demand made by accused Deepak Vashist on 10.07.2017 and about the trap proceedings conducted on 11.07.2017. PW-2 stated about giving of money to accused no. 2, Dharam Raj on the directions of accused Deepak Vashist.
PW-3 Sh. Kamal Kumar, Nodal Officer, Reliance Jio Infocom Limited. He produced the customer application form, CDR, Cell ID Chart and certificate U/S 65B of Indian Evidence Act in respect of mobile number 7982822374 in the name of Mange Ram.
PW-4 ASI Ashok Kumar, Reader to SHO, PS- Vasant Kunj (S). PW-4 exhibited the letter dated 17.10.2017 written by Insp. Sanjay Sharma for providing documents pertaining to this case. PW-4 stated that vide said letter, Ex. PW4/A, the dak register, Ex. PW4/B and diary CC No. 08/2017 Page no. 18 entry was provided to CBI. He stated about letter dated 05.06.2017 addressed to SHO, PS Vasant Kunj (S), New Delhi written by Sh.
R.K.Garg, Meteorologist, AIIMS seeking details of arrest and detention of Mange Ram.
PW-5 Sh. Rajiv Kumar Garg, MeteorologistB, India Meteorologic Department, Lodhi Road. PW-5 stated that their department was informed regarding lodging of an FIR against Mange Ram Yadav vide letter dated 29.11.2016, Ex.PW5/A. A letter dated 16.12.2016, Ex.PW5/B was written to SHO, PS Vasant Kunj (S) seeking detail and time of arrest and detention of Mange Ram Yadav.
PW-5 stated that vide letter dated 05.06.2017, Ex.PW5/C, a reminder was sent in this regard.
PW-6 Sh. Rohit Singh, Engineer, Fortune Marketing Pvt. Ltd. stated that he joined the investigation on 11.07.2017 at around 6.00 to 6.30 pm and he had taken copy of CCTV footage from NVR, Ex. PW2/C in two pen drives.
CC No. 08/2017 Page no. 19
PW-7 HC Rahul Yadav, PS Vasant Kunj,
South. PW-7 produced the production cum
seizure memo dated 06.09.2017 along with DD entries, Ex. PW7/A wherein absence of Ct.
Dharam Raj on 11.07.2017 was marked.
PW-8 Sh. Satyapal Sharma, Assistant, Grade-II, Office of DSIIDC, Lajpat Nagar, New Delhi. PW-8 deposed about proceedings conducted by CBI on 03.07.2017 to verify the demand on the part of accused Deepak Vashist. PW-8 also deposed about the trap proceedings conducted on 11.07.2017. PW-8 was declared hostile by Ld. PP as he resiled from his earlier statement recorded U/s 161 CrPC by the CBI. PW-8 deposed that on 03.07.2017, they went to PS Vasant Kunj along with complainant and other CBI officials. PW-8 stated that he was not confirmed what conversation took place between Mange Ram and CBI officials. PW-8 further stated that on 11.07.2017 they went to Vasant Kunj in two CBI vehicles along with complainant and other CBI officials and independent witness Shakeel Ahmed and that he remained with CBI officials CC No. 08/2017 Page no. 20 while other witness Shakeel Ahmed was asked to follow the complainant. PW-8 denied recording of the conversation in memory card on 03.07.2017, showing of complaint, copy of FIR and verification memo to him on 11.07.2017, production of Rs.20,000/- by Mange Ram on 11.07.2017 and complainant talking to some person wearing black t-shirt. PW-8 denied number of suggestions given by Ld. PP regarding prosecution case.
PW-9 SI Pankaj Kumar, PS Mangol Puri.
PW-9 produced the production cum seizure memo dated 14.07.2017, Ex. PW9/A and photocopy of dak register,Ex. PW9/B. PW-10 Sh. Saurabh Agarwal, Alternate Nodal Officer, Vodafone Mobile Services Ltd, Delhi. He produced the certified copy of customer application form of mobile no.
999615355 in the name of accused Deepak Vashist, CDR and certificate U/S 65B of Indian Evidence Act. PW-10 exhibited the application form, copy of I. Card and copy of certificate as Ex. PW9/B and copy of tariff enrollment form as CC No. 08/2017 Page no. 21 Ex. PW10/C and CDR along with certificate U/S 65 B Indian Evidence Act as Ex. PW10/D. PW-
10 also produced the certified copy of customer application form of mobile number 9717944650 in the name of Dharam Raj, CDR and certificate U/S 65 Indian Evidence Act. He exhibited customer application form, copy of I.Card and visiting card of accused Dharam Raj as Ex.
PW10/F, CDR and certificate U/S 65B Indian Evidence Act as Ex. PW 10/G and certification U/s 65B Indian Evidence Act and location chart and CDR as Ex. PW 10/H. PW-11 Insp. Rajesh Kumar, PS Badapur, New Delhi. He deposed regarding sealing of pen drive, Ex.PW2/J and NVR, Ex. PW2/G and also stated regarding sealing memo of NVR dated 11.07.2017, Ex. PW2/H. PW-12 Ct. Naresh Kumar, PS R.K.Puram.
He stated that CCTV footage was played in PS Vasant Kunj (S) and he was asked to identify the person wearing black t-shirt in the CCTV footage. PW-12 stated that in the CCTV footage the person appearing was Dharam Raj, who CC No. 08/2017 Page no. 22 was also present in court.
PW 13 Sh. Romil Baaniya, SP, Changlang Office, Arunachal Pradesh. PW-13 stated that he accorded sanctions to prosecute SI Deepak Vashist and Ct. Dharam Raj after perusal of the copy of FIR, complaint, verification memo, statement of witnesses and other documents collected by CBI during investigation. PW-13 exhibited the sanction order as Ex.PW13/B and Ex.PW13/C. PW 14 Dr. S.K.Choudhury, Senior Scientific Officer, Grade-III, Physics, CFSL, New Delhi. PW-14 stated that he had examined the recording of conversation in Q-1, Q-2, Q-3, S-1, S-2 and DVR. PW-14 exhibited the report dated 12.07.2018 as Ex. PW14/A. PW 15 ACP Sanjay Sharma (Traffic), PS Keshav Puram. PW-15 stated that CCTV footage was run in the office room of SHO, PS Vasant Kunj (N) and he was asked to identify the person in CCTV footage and he identified Ct. Dharam Raj. PW-15 stated that CC No. 08/2017 Page no. 23 Ct. Naresh Kumar made a call from his mobile to Ct. Dharam Raj and he talked to Ct.
Dharam Raj who replied that he would be coming after some time and since he did not turn up his absence was marked. PW-15 stated that he had provided attested copy of case file of FIR No. 662/2016, Ex.PW15/A. PW-15 also stated that letter dated 05.06.2017, Ex.PW4/C was received in their office on 10.06.2017 from Sh. R.K.Garg, Meteorologist-A seeking information, period of judicial custody and police custody of Mange Ram and this letter was marked to accused Deepak Vashist for taking necessary action. PW-15 also stated that investigation of FIR no. 662/2016 was entrusted to SI Deepak Vashist and was pending till the date of trap i.e. 11.07.2017. PW-15 also stated that Dharam Raj had told him regarding illness of his daughter when he talked to him on mobile phone 5-5.30 pm. PW 16 Sh. Rakesh Kumar Sharma, employee Central Water Commission. He witnessed the proceedings at CBI office CC No. 08/2017 Page no. 24 on 26.07.2017 regarding taking of voice samples of Dharam Raj. He exhibited the specimen voice recording memo as Ex. PW 16/A. PW-17 Sh. Surajmal Phore, employee Central Water Commission. He witnessed the proceedings at CBI office on 26.07.2017 regarding taking of voice samples of Dharam Raj.
PW-18 Sh. Bhupender Dutta, Clerk, MCD. He joined the proceedings conducted on 10.07.2017 regarding verification of demand. PW-18 identified his voice as well as complainant's voice.
PW-19 Sh. Vijay Yadav. He stated that Mange Ram had never told him regarding any bribe given by him to Deepak Vashist.
PW-19 stated that neither Mange Ram told him about any bribe nor any bribe was given by Mange Ram to any one in his presence.
PW-20 Sh. Shakeel Ahmed, Assistant CC No. 08/2017 Page no. 25 Manger, SBI. He joined the proceedings conducted by CBI on 11.07.2017 i.e. trap proceedings. PW-20 stated that he along with complainant and CBI officials went to PS Vasant Kunj. He also stated that he was to follow the complainant. PW-20 stated that Mange Ram told that tainted amount of Rs.
20,000/- was given by him to person wearing black t-shirt. However, he had not seen the complainant giving money by complainant to accused Dharam Raj.
PW-21 Ct. Mithesh Kumar. He stated about arrest of accused Dharam Raj when Dharam Raj surrendered before this Court on 25.07.2017.
PW-22 Ct. Karamvir. He stated that on 11.07.2017 he was called by SHO, North and was asked about password of NVR and the NVR was operated by 2-3 officers sitting there and the videos were played on a monitor.
PW-23 Insp. S.P.Singh is the IO of the CC No. 08/2017 Page no. 26 case He stated that investigation of the case was entrusted to him by Insp. Ramesh Kumar on 14.07.2017 and during investigation he collected different documents and examined different witnesses and sent exhibits to CFSL for examination and expert opinion, he prepared transcriptions, voice-cum-
identification memo and examined the
witnesses.
PW-24 Sh. Ramesh Kumar, the then
Inspector, CBI, ACB. He is the trap laying
officer (TLO). He participated in the
proceedings conducted on 11.07.2017 and
laid a trap and arrested accused Deepak
Vashist and conducted trap related
proceedings.
PW-25 Insp. Shitanshu Sharma. He
acted as Verifying Officer and verification
proceedings dated 03.07.2017 and
10.07.2017 were conducted by him.
6. The accused persons were examined U/S 313 Cr.PC. The accused Dharam Raj denied to have taken any bribe amount CC No. 08/2017 Page no. 27 from complainant on 11.07.2017 It is stated by accused Dharam Raj that he was falsely implicated in the present case.
7. The accused Deepak Vashist in his statement u/s 313 Cr.P.C stated that he is innocent and has been falsely implicated in this case. The complainant had grudge against him as he was the investigation officer in case FIR No.662/2016 under Section 323/342/406/356/34/120B IPC registered at PS Vasant Kunj, South and he had recovered a sum of Rs.20 lacs from the complainant, which the complainant had snatched/ misappropriated from his relatives and the complainant had even beaten them and was not inclined to return the said amount. Accused Deepak Vashist stated that he had neither demanded any bribe from the complainant nor received bribe on any occasion through anyone nor directed the complainant to give the money to any person on his behalf.
8. The accused no. 1, Deepak Vashist examined one witness namely HC. Vinod.
DW-1 HC Vinod stated that he was present in the Room no. 18 along with ASI Inderjeet and SI Deepak Vashist on 03.07.2017. At about 5.15-5.30 pm Mange Ram after looking inside the room went away and on 10.07.2017, Mange Ram had entered CC No. 08/2017 Page no. 28 in their room between 7.15-7.30 pm and SI Deepak Vashist. He and ASI Inderjeet were interrogating one suspect in a rape case and Mange Ram after sitting for 5-10 minutes went away. DW-1 stated that when Mange Ram had come SI Deepak Vashist had left their room as he was called by Insp. Ved Prakash and on 11.07.2017, Mange Ram came at about 4-4.30 pm and left the room after some time and after 15-20 minutes CBI officials came and asked Deepak Vashist that he had accepted bribe to which SI Deepak Vashist denied.
9. I have heard Ld. Counsel for the accused as well as Ld. PP for CBI.
CONTENTIONS OF LD. COUNSEL FOR CBI
10. Ld. Counsel for CBI contended that accused SI Deepak Vashist had demanded a bribe of Rs.20,000/- for helping him in getting anticipatory bail for his son and for showing less hours of custody of complainant Mange Ram to his department and complainant has paid the said bribe amount to co-accused Dharam CC No. 08/2017 Page no. 29 Raj at the direction of accused Deepak Vashist. Ld. Counsel for CBI submits that PW-2 has clearly stated about earlier demand of bribe of Rs. 10,000/- by accused Deepak Vashist and the demand of Rs. 10,000/- is also corroborated through complaint dated 03.07.2017 and 10.07.2017 given by the complainant.
11. Ld. Counsel for CBI also submits that the recorded conversation between accused persons and complainant establishes the demand of bribe amount by accused persons and also receiving of said amount by accused no. 2 on 11.07.2017. It is submitted that CBI has firstly verified the factum of demand of bribe on the part of accused Deepak Vashist and only then trap was laid.
12. Ld. PP further submits that so far as recovery of tainted amount is concerned, it is admitted fact that bribe amount could not be recovered as the accused no. 2, Dharam Raj had fled from the spot and his subsequent conduct of absenting from duty on the day of trap and thereafter for about 20-25 days, further corroborate the case of prosecution. Ld. PP submits that both the accused persons have been identified by the complainant.
13. Ld. Counsel for CBI further submits that the CFSL report regarding memory card and DVR shows that there had been no tampering in the recording and thus the recorded conversation and CCTV footage in NVR coupled with oral testimonies of the witnesses CC No. 08/2017 Page no. 30 prove the case of the prosecution beyond reasonable doubt. Ld. PP submits that there may be presence of more than two witnesses on any particular day, however, same does not dilute the case of the prosecution since only those witnesses have signed the proceedings who participated in the proceedings.
14. Ld. Counsel for CBI further contended that the testimonies of the witnesses including complainant are reliable and consistent. Ld. Counsel for CBI further submits that the record of case FIR no. 662/16 seized from the office of the accused also supports the case of the prosecution.
15. Ld. Counsel for CBI submitted that accused persons are public servant and necessary sanction was obtained by CBI before prosecuting the accused. Ld. Counsel for CBI contended that PWs have proved the sanction order which is a speaking order containing all the necessary facts and it has been proved by the prosecution that all the necessary documents were placed before the Competent Authority and the Competent Authority has applied its mind and has granted sanction. Ld. Counsel for CBI further submitted that the purpose of sanction is not to shield the corrupt officials but to provide with a protection against false implication and hypertechnical approach need not be adopted.
16. Ld. Counsel for the CBI submitted that testimony of the defence witness does not help the case of prosecution as the CC No. 08/2017 Page no. 31 prosecution has established its case.
17. Ld. Counsel for CBI contended that the NVR could not be sent for CFSL examination, however, same does not make any difference as its custody has not been assailed. Ld. Counsel for CBI also contended that the minor discrepancies in the testimonies of the witnesses do not go to the root of the matter and do not affect the case of prosecution. Ld. Counsel for CBI contended that CDR collected from the service provider also supports the case of the prosecution.
18. Ld. Counsel for CBI has relied upon the judgments Raman Kalia & Ors. Vs State of Gujarat 1979 AIR (SC) 1261, Babu & others vs State of UP, K. Ramajayam @ Appu. Vs Inspector of Police, Chennai 2016 CriLJ 1542, State of Punjab Vs Hari Singh & Ors., 1974 AIR (SC) 1168, Sohrab and others Vs State of MP 1972 AIR ( SC) 2020, Gian Singh Vs State of Punjab 1974 AIR (SC) 1024, State of MP Vs. Dharkole @ Govind Singh, 2005 AIR (SC) 44, Vinod Kumar Vs State of Punjab Vs State of Punjab 2015 (3) SCC 220.
Contentions of Ld. Counsel for Accused
19. On the other hand, Ld. Counsel for accused no. 1 submitted that the accused persons have been falsely implicated by the CBI. It is submitted that the proceedings conducted by CBI is CC No. 08/2017 Page no. 32 fabricated. Ld. Counsel for accused no. 1 submits that the verification memo dated 03.07.2017 and 10.07.2017 are manipulated documents. Ld. Counsel submits that the verification memo dated 03.07.2017 mentions that verification was concluded at 23:30 and the complainant had signed the said verification memo while the complainant during his testimony stated that he left CBI office on that day at about 5.00 pm and further the CDR and location chart, Ex.PW 3/B placed on record by CBI shows that at 8.30 pm complainant was at IGI Airport. It is further submitted that similarly the verification memo dated 10.07.2017 mentions that proceedings were completed at 11.00 pm while PW-2 who has signed the said memo stated that he remained in CBI office on 10.07.2017 till 4.30 pm to 5.30 pm and the CDR and location chart of complainant's mobile phone number 7982822374 shows that the complainant was at different places after 7.00 pm and was at Rao Tula Ram Marg at about 10.14 pm. Ld. Counsel submits that the defence witness has further contradicts the case of the prosecution and thus both the verification memo are ante-dated and ante-timed and are manipulated documents.
20. Ld. Counsel for accused Deepak Vashist also submits that the case of the CBI is filled with number of inconsistencies and contradictions and cannot be relied upon. It is submitted that the complainant has initially stated that he paid Rs.10,000/- to accused Deepak Vashist through one Sh. Vijay while name of such person has not been mentioned in complaints dated 03.07.2017 and 10.07.2017.
CC No. 08/2017 Page no. 33 He further submitted that complainant has changed his version as per his convenience in as much as at one place he stated that accused Deepak Vashist demanded Rs. 50,000/- and then amount was settled at Rs.20,000/- and during cross-examination also states that accused has demanded Rs. 1.05 Lac. It is submitted that complainant did not state about the incident dated 11.07.2017 in his chief examination and it is only when he is declared hostile by Ld. PP and was given suggestion regarding said incident, he answered in affirmative. It is submitted that the said witnesses is led by Ld. PP and is not worthy of reliance. Ld. Counsel for accused also submitted that PW-8 , Satyapal and PW-20 Shakeel Ahmed also deposed contradictory facts and there testimonies are not worthy of reliance.
21. Ld. Counsel for accused also submits that none of the prosecution witness has seen complainant giving tainted amount to accused Dharam Raj while the said bribe was allegedly given at a open place in the presence of the CBI team members. It is submitted that even the independent witness Shakeel Ahmed did not state that the money was given by complainant to accused Dharam Raj.
22. Ld. Counsel also submits that the transcription is also not reliable and does not help the case of the prosecution as some part of alleged conversation is not the part of recorded conversation while the DVR, at that time was on and it only shows that there had been manipulations and the recording has been doctored by the CBI CC No. 08/2017 Page no. 34 officials.
23. Ld. Counsel for accused also submits that demand on the part of accused has not been proved as admittedly on 03.07.2017 and on 11.07.2017, no demand was made by accused Deepak Vashist when the complainant met him and further the conversation recorded on 10.07.2017 also did not support the case of prosecution and does not show that any demand was made. It is also submitted that there is also dispute regarding the place where amount was paid as the PW-2 has given different version in this regard.
24. Ld. Counsel for accused also submitted that accused has been falsely implicated since he was investigating the case registered against complainant and recovered Rs. 20 Lac from complainant which the complainant had misappropriated.
25. It is also submitted that even the CFSL report is not conclusive regarding voice of the accused, hence, cannot be relied upon. It is also submitted that the CFSL Laboratory which has given opinion regarding conversation recorded in memory cards, is not notified U/S 79A of Information & Technology Act, 2000.
26. Ld. Counsel for accused contended that there are major discrepancies in the testimonies of the prosecution witnesses which makes the prosecution case totally improbable. It is submitted by Ld. CC No. 08/2017 Page no. 35 Counsel for accused that the prosecution has failed to establish that there has been demand on the part of accused so much so that the prosecution failed to prove the audio recordings.
27. Ld. Counsel for accused contended that the sanction order is not valid in the eyes of law in view of the fact that the competent authority had not applied its mind while granting sanction.
28. Ld. Counsel for accused contended that the CBI has failed to establish the chain of custody of memory card, DVR and NVR and there remained every possibility of tampering with the electronic evidence and the evidence produced by CBI in the form of electronic evidence is not admissible for the reason that it is not supported by Certificate U/s 65B of Indian Evidence Act and also for the reason of want of safe custody of these articles.
29. Ld. Counsel for accused no. 2 also contended that it is not clear as to whether CBI has used one DVR or two DVRs although they had produced only one DVR before this Court. It is also submitted by Ld. Counsel for accused that even if it is assumed that amount was paid to accused Dharam Raj by complainant, there is nothing on record to show that accused no. 2 was having knowledge that it was a bribe money.
30. Ld. Counsel for accused also submitted that there is also CC No. 08/2017 Page no. 36 dispute regarding place where the alleged amount has been paid. It is submitted that even eye witness did not see any transaction of payment of bribe. Further PW-2 has failed to identify the voice of Dharam Raj which makes entire recorded conversation irrelevant. It is submitted that daughter of accused Dharam Raj was ailing on 11.07.2019, hence, he had to rush to his home early. It is also contended that sanction granted by sanctioning authority is without application of mind and in mechanical manner.
31. Ld. Counsel for accused has relied upon the judgments Anil Sharma vs State of Jharkhand, 2004 (3) RCR ( Cri) 774, State of Haryana Vs Ram Singh, 2002 (1) JCC 385 SC, Dashrath Sigh Chauhan Vs CBI, Crl. Appeal no. 1276 of 2010 decided by Supreme Court of India on 09.10.2018, N.Sunkannna Vs State of Andhra Pradesh, Crl. Appeal no. 1355 of 2015 decided by Supreme Court of India on 14.10.2015, Selvaraj Vs State of Karnataka, Crl. Appeal no. 1172 of 2008 decided by Supreme Court of India on 18.08.2015, State of Maharashtra Vs Dnyaneshwar Laxman Rao Wankhede, 2009 (4) C.C. cases ( SC) 31, Parmanand Vs CBI Crl. Appeal no. 132/04 decided on 03.7.2013, State of Rajasthan Vs Mohan Lal, 2009 (2) RCR ( criminal), 2014 (3) RCR ( Cr) 570 Delhi, Kanti Prasad vs State, C. Sukumar Vs. State of Kerala, Crl. Appeal no. 192 of 2015 decided by Supreme Court, Sunil Kumar Sharma Vs State (CBI), 2007 (3) Crimes 160 Delhi, P Satyanarayana Murthy Vs The District Inspector of Police & anr., 2015 (4) JCC 2674 ( Supreme Court), Nilesh Dinkar CC No. 08/2017 Page no. 37 Paradkar Vs State of Maharashtra, 2011 ( 4) SCC 143, Prem Singh Yadav Vs CBI, 2011 (2) JCC 1059 Delhi, Ronal Kriprano vs State, 2001 (3) RCR ( Crl.)766 SC, Dr. S. L. Goswami Vs State, 1972 SCC ( Crl.) 258 SC, State Vs K. Narsimhachari, AIR 2006 SC 628.
Sanction to Prosecute :
32. The first point for consideration is whether valid sanction has been granted for prosecuting accused no.1, Deepak Vashisth and accused no. 2, Dharam Raj.
33. Section 19 of the Prevention of Corruption Act deals with the sanction necessary for prosecution. Section 19(1) reads as under :-
"Previous sanction necessary for prosecution. - (1) No court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction [save as otherwise provided in the Lokpal and Lokayuktas Act, 2013]-
(a) in the case of a person who is employed in connection with the affairs of the CC No. 08/2017 Page no. 38 Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office.
34. Hon'ble Supreme Court of India in 2005 CRI. L.J. 2145 "C.S. Krishnamurthy Vs. State of Karnataka, while dealing with the issue regarding validity of sanction, observed as under :
".......It is no doubt true that the sanction is necessary for every prosecution of public servant, this safeguard is against the frivolous prosecution against public servant from harassment. But, the sanction should not be taken as a shield to protect corrupt and CC No. 08/2017 Page no. 39 dishonest public servant."
"The sanction itself shows that there is something to be accounted by the accused. When the sanction itself is very expressive, then in that case, the argument that particular material was not properly placed before the sanctioning authority for according sanction and sanctioning authority has not applied its mind becomes unsustainable. When sanction order itself is eloquent enough, then in that case only formal evidence has to be produced by the sanctioning authority or by any other evidence that the sanction was accorded by a competent person with due application of mind."
35. Hon'ble Supreme Court of India in State of Maharashtra Vs. Mahesh G Jain, reported in 2013 Cri. L.J. 3092, observed as under :
"....... The learned trial Judge, as it seems, apart from other reasons has found that the sanctioning authority has not referred to the elementary facts and there is no objective CC No. 08/2017 Page no. 40 material to justify a subjective satisfaction. The reasonings, in our considered opinion, are absolutely hyper-technical and, in fact, can always be used by an accused as a magic trick to pave the escape route. The reasons ascribed by the learned trial Judge appear as if he is sitting in appeal over the order of sanction. True, it is, grant of sanction is a sacrosanct and sacred act and is intended to provide a safeguard to the public servant against vexatious litigation but simultaneously when there is an order of sanction by the competent authority indicating application of mind, the same should not be lightly dealt with. The flimsy technicalities cannot be allowed to become tools in the hands of an accused. In the obtaining factual matrix, we must say without any iota of hesitation that the approach of the learned trial Judge as well as that of the learned single Judge is wholly incorrect and does not deserve acceptance."
36. It is clear from aforesaid judgments that entire material should be placed before the competent authority and there should be application of mind by competent authority while granting sanction for CC No. 08/2017 Page no. 41 prosecution of the concerned person. It would be enough for the prosecution to prove that sanctioning authority had all the relevant papers before it and it was satisfied that it was necessary in the ends of justice to accord prosecution sanction. While granting sanction, it is not for sanctioning authority to judge the truth of all the allegations made against the accused by insisting or calling for the records of the accused. It is also well settled that when the application of the mind by the sanctioning authority to the facts consisting the offences is discernible exfacie from the sanction order itself, there is no need for the sanctioning authority to depose before the Court with regard to the satisfaction arrived at by him in the case.
37. The testimony of PW13, Romil Bania, S.P. Changlang, Arunachal Pradesh (the then DCP, South), is relevant for deciding the aforesaid point. PW13, Romil Bania stated that vide letter dated 14.12.2017, Ex.PW13/A, sanction orders of SI Deepak Vashisth and Ct. Dharam Raj were sent to CBI. PW13 stated that he accorded sanction to prosecute Ct. Dharam Raj after perusal of the copy of the FIR, complaint, verification memo, statement of witnesses and other documents, collected during investigation, vide sanction order Ex.PW13/B and Ex.PW13/C. PW13 further stated same facts with regard to sanction granted for prosecution of accused Deepak Vashisth vide sanction order Ex.PW13/C. During cross examination, PW13 stated that he had gone through the report under Section 173 Cr.P.C. and he did not recollect if CFSL Report regarding voice CC No. 08/2017 Page no. 42 examination was produced before him. PW13 also stated that no draft sanction order was sent by CBI.
38. The Sanction Orders Ex. PW13/B and Ex.PW13/C are signed by PW13 Romil Bania the then DCP (South District), New Delhi. He has duly proved the said the sanction orders. PW13 clearly stated that he has given approval for prosecution of SI Deepak Vashisth and Ct. Dharam Raj, after perusal of FIR, complaint, verification memo, statement of witnesses and other documents, collected during investigation.
39. Perusal of the sanction orders Ex. PW13/B and Ex.PW13/C show that they explicitly speak about the fact of commission of offence by the accused and it says that the competent Authority has examined the copy of FIR, complaint, verification memo, statement of witnesses and other documents, collected during investigation in respect of the allegations. The Sanction Orders are ex-facie speaking about the material placed before the Competent Authority and application of mind by the Competent Authority. The sanction is expressive and allegiant and, therefore, it cannot be said that competent authority had not applied its mind.
40. Learned Counsel for accused persons contended that PW13 Romil Bania did not apply mind and granted sanction in mechanical manner and has signed the draft sanction order prepared CC No. 08/2017 Page no. 43 by CBI. PW13 has clearly stated that no draft sanction order was placed before him.
41. Hon'ble Supreme Court in State of Maharashtra Vs. Mahesh G Jain has clearly held that flimsy technicalities should not be allowed to be raised. The contention of the Ld. Counsel for accused that competent authority did not apply mind and the sanction order was not proper, is therefore, without any merit.
WHETHER PROSECUTION HAS SUCCEEDED IN PROVING THE GUILT OF ACCUSED BEYOND REASONABLE DOUBT
42. Now, I turn to next issue whether prosecution has succeeded in proving the guilt of accused persons beyond reasonable doubt.
Section 7 of the Prevention of Corruption Act reads as under :-
"Public servant taking gratification other than legal remuneration in respect of an official act. - Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, CC No. 08/2017 Page no. 44 other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or parliament or the Legislature of any State or with any local authority, corporation or government company referred to in clause (c) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than [three years] but which may extend to [seven years] and shall also be liable to fine."
43. Section 13(1)(d) and (2) of Prevention of Corruption Act reads as under :-
"13 Criminal misconduct by a public servant. - (1) A public servant is said to commit the offence of criminal misconduct, -
(a) .....
(b) .....
(c) .....
CC No. 08/2017 Page no. 45
(d) if, he, -
(I) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage ; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or
(e) .....
(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than [four years] but which may extent to [ten years] and shall also be liable to fine."
44. It is well settled that for proving case beyond reasonable doubt, the prosecution has to prove the following three aspects CC No. 08/2017 Page no. 46 namely :-
a) demand of bribe by public servant.
b) Acceptance of bribe by public servant.
c) Recovery of bribe amount from public servant.
DEMAND OF BRIBE BY THE PUBLIC SERVANT
45. I have perused the testimonies of witnesses and gone through the material on record.
46. As per prosecution case, the accused Deepak Vashisht was investigating a matter registered vide FIR No. 662/16 wherein the complainant and his son were the accused and the complainant was arrested by the accused Deepak Vashisht in the aforesaid case on 13.10.2016 and he was released on bail on 15.10.2016. Accused Deepak Vashisht was demanding money from the complainant for helping him in getting anticipatory bail to his son and for showing custody of the accused less than 48 hours to the department of complainant. The accused Deepak Vashisht also demanded money in October, 2016 when the case was registered and the complainant gave Rs. 10,000/- to the accused Deepak Vashisht. Accused Deepak Vashist was demanding further money from complainant. The complainant did not want to pay further money to the accused Deepak CC No. 08/2017 Page no. 47 Vashisht, hence approached CBI office on 03.07.2017 and filed a complaint against the accused Deepak Vashisht and the verification regarding demand of money on the part of accused was conducted, however, no demand was made by the accused on 03.07.2017, therefore, CBI officials asked complainant to approach CBI office as and when money is demanded by the accused Deepak Vashisht. The complainant again approached CBI office on 10.07.2017 and filed a complaint and verification was again made. The complainant met accused Deepak Vashist and accused Deepak Vashist asked complainant to decide the bribe amount and when complainant said Rs. 15,000/-, accused asked double the amount and finally the bribe amount was settled at Rs. 20,000/-. The said conversation between complainant and accused Deepak Vashist was recorded in the memory card through DVR which the complainant was carrying with him. On 11.07.2017 a trap was laid and accused Deepak Vashisht had taken bribe of Rs. 20,000/- through his associate Ct. Dharam Raj, however, money could not be recovered as co accused Dharam Raj fled from the spot along with bribe amount. The conversation held between accused Deepak Vashist, Dharam Raj and complainant Mange Ram was recorded in the memory card through DVR which the complainant was carrying with him.
47. The first incident of demand of bribe by accused Deepak Vashisht from complainant is of October, 2016. There is nothing on record to show that accused demanded Rs.10,000/- from complainant CC No. 08/2017 Page no. 48 or that complainant paid Rs.10,000/- to accused Deepak Vashisht. In the complaints, Ex.PW2/A and Ex.PW2/B the complainant has simply stated that he paid the said bribe of Rs. 10,000/-, however, during his examination in court PW-2, Mange Ram (the complainant) improved his version and stated that he paid said amount of Rs. 10,000/- to Deepak Vashist through his tenant Vijay Kumar. PW-2 Mange Ram also stated that he could not say whether the said money was given by Vijay Kumar to accused Deepak Vashisht. Here, it is relevant to discuss the testimony of PW 19 Vijay Kumar. PW-19 Vijay Kumar stated that Mange Ram never told him regarding bribe given by him to accused. He further denied that Mange had paid any bribe to accused. PW-19 also stated that Mange Ram had grudge against Deepak Vashisht since Rs. 20 lakh were recovered by Deepak Vashisht from the house of complainant.
48. The second incident is of 03.07.2017. It is worthwhile recording here that during verification conducted by CBI officials on 03.07.2017, no demand was found to have been made by the accused. However, there is serious discrepancy in the verification proceedings conducted on 03.07.2017. The verification proceedings were completed at about 11.30 pm as mentioned in the verification memo dated 03.07.2017, Ex.PW2/C. However, the location chart, part of Ex. PW3/B (colly) in respect of mobile no. 7982822374 of complainant Mange Ram shows that the complainant was at IGI Airport at about 8.43 pm. As per prosecution, complainant was there CC No. 08/2017 Page no. 49 in CBI office at that time and signed verification memo on its completion. Both the aforesaid facts cannot coexist and there appears to be serious lapse in this regard. Further, PW-2 Mange Ram during his examination stated that he remained in CBI office on 03.07.2017 till 5.00 pm. The aforesaid statement of the witness falsify the aforesaid document.
49. Now, coming to another allegation that accused Deepak Vashisht demanded bribe on 10.07.2017. PW-2, complainant Mange Ram, during his examination, stated that when he visited accused Deepak Vashisht on 10.07.2017 at PS Vasant Kunj, at that time, accused Deepak Vashisht had not demanded any bribe amount from him rather he showed his sympathy towards him without taking anything from complainant. The complainant has categorically denied any demand on the part of accused on 10.07.2017. The complainant was declared hostile witness and was then cross-examined by Ld. Public Prosecutor and during cross-examination the complainant admitted the suggestion that accused demanded bribe money on 10.07.2017 and amount was settled Rs. 20,000/- after the accused demanded double of Rs. 15,000/-. The testimony of the complainant on this point is contradictory.
50. It also needs to be recorded that in his testimony, PW-2 also stated that 3-4 days before 03.07.2017, the accused demanded Rs. 83,000/- for favouring his son and to weaken the case and the CC No. 08/2017 Page no. 50 amount was negotiated and settled at Rs.20,000/- while the said allegation is neither the part of the complaints dated 03.07.2017, Ex. PW1/A and 10.07.2017, Ex. PW1/B nor he has stated so in his statements recorded under Section 161 Cr.P.C, Ex. PW2/Y and Ex. PW2/Z. There is no date or time mentioned by complainant of the said incident and further it also raised another question as to why the amount was again settled on 10.07.2017 when it was already decided/settled between complainant and accused. Another point which required to be noted that during cross-examination by counsel for accused no. 1, the complainant also stated that accused has also demanded Rs. 1.5 lakh from him. This allegation is also not the part of complaint and was made first time in Court. There is improvement in the case of the prosecution.
51. PW-19, Bhupinder Dutta, LDC, MCD, Delhi Zone the independent, witness, who was part of the proceeding on 10.07.2017, has categorically stated that the complainant after coming back from the office room of accused Deepak Vashist briefed about the conversation that took place between him and Deepak Vashist and he told that he wanted closure of the case pending against him and said that if Deepak Vashist can do anything in this and at that time complainant had stated only the aforesaid facts. The aforesaid statement of independent witness Bhupinder Dutta, PW-19, also shows that on 10.07.2017, PW-2 Mange Ram did not tell to the IO that any demand had been made by accused Deepak Vashist. The CC No. 08/2017 Page no. 51 said statement further corroborate the statement of PW2, Mange Ram, the complainant that on 10.07.2017, no demand was made by the accused Deepak and contradicts what PW2 stated during cross- examination by Ld. PP.
52. There is one more serious discrepancy with regard to proceedings conducted on 10.07.2019. The verification proceedings regarding demand of bribe were also conducted on 10.07.2017 and verification memo, Ex.PW2/O shows that proceedings were completed at about 11.00 pm while the location chart, part of Ex. PW3/B (colly) in respect of mobile no. 7982822374 of complainant shows that the complainant was at Rao Tula Ram Marg at about 10.14 pm. Further, the complainant PW-2 during his examination stated that on 10.07.2017 he remained in CBI office till 5-5.30 pm. The aforesaid facts only shows that verification memo, Ex.PW2/D in respect of verification done on 10.07.2017 was not prepared and completed at 11.00 pm.
53. Now, I turn to incident dated 11.07.2017 when trap was laid by the CBI. PW-2 during his chief examination did not mention about the incident dated 11.07.2017 and it is only when the PW2 was declared hostile and cross-examined by Ld. PP and suggestions were made regarding incident darted 11.07.2017, he only answered in affirmative saying "It is correct". PW-2 did not narrate the incident dated 11.07.2017 himself. As per prosecution accused CC No. 08/2017 Page no. 52 Deepak Vashist has not demanded any money when complainant met with Deepak Vashist on 11.07.2017, however when complainant left the office room of the accused Deepak Vashist, he got a call from Deepak Vashist and Deepak Vashist had directed him to pay the bribe amount to the person wearing black t-shirt and the complainant asked how he will identify this person and the accused told that said person knew complainant and will meet him.
54. The conversation which had taken place between the complainant and accused Deepak Vashist was not recorded in DVR and there is no explanation as to why the said conversation had not been recorded in the DVR and the conversation recorded in memory card, Ex. PW2/N (Q-3) and transcription, Ex.PW2/W shows that the complainant is talking to one Sh. Rakesh.
55. Further PW-2 failed to identify the voice of accused Dharamraj in the said conversation and stated that it was the voice of accused Deepak Vashist. PW-2 even denied the suggestion that he had incorrectly identified the voice of Dharam Raj as of accused Deepak Vashist and when he was further asked he said that he was confused. PW-2 also stated that he did not see to which direction the accused Dharam Raj has gone, then again said that accused Dharam Raj had fled towards playground. Further PW-2 stated during cross-examination by Ld. Counsel for accused no. 1 that he cannot tell as to how many documents have been signed in CBI office CC No. 08/2017 Page no. 53 subsequent to the raid, when he visited CBI and cannot tell about the contents and nature of documents. He further stated that those documents were already prepared by Insp. S.P.Singh when he reached CBI office after the day of raid.
56. On 11.07.2017, two witnesses namely Satyapal and Shakeel Ahmed had joined proceedings.
57. PW-20 Shakeel Ahmed stated that after 5-10 minutes, Mange Ram came out and met CBI officials outside Police Station and he was following Mange Ram and Mange Ram told CBI officials that nothing had happened and thereafter Mange Ram received phone call, went inside the Police Station and PW-20 saw a fat man in black t-shirt having some conversation with Mange Ram. PW-20 stated that he had not seen Mange Ram giving money to said person wearing black t-shirt. PW-20 has stated a new fact that complainant came back to CBI officials after meeting accused Deepak Vashist and thereafter he got phone call while as per prosecution story PW2 while coming back after meeting accused Deepak Vashist received phone call. PW-20 did not say anything about demand of money by accused Deepak Vashist from complainant nor he stated about transaction of handing over of bribe amount to Dharam Raj.
58. PW20 Shakeel Ahmed has not supported prosecution case on many points. PW-20 denied the suggestions of Ld. PP CC No. 08/2017 Page no. 54 regarding running and seizure of CCTV footage, preparation of rough sketch, arrest of accused Deepak Vashist in his presence, hearing recorded conversation through memory card, Ex.PW2/N, preparation of transcription memo, Ex.PW2/W, recording of specimen voice sample in memory card, Ex. PW2/Q.
59. PW-8 Satyapal Sharma also did not support the case of prosecution on many aspects and his testimony is full of inconsistencies and material contradictions. PW-8 denied the suggestion put by Ld. PP that accused Deepak Vashist was demanding money not to show the custody of Mange Ram for more than 48 hours of custody." He also denied the suggestion that the conversation dated 03.07.2017 in memory card, Ex. PW2/Article-3 (Q-
1) was heard by him, Shitanshu Sharma and complainant. He denied the suggestion that he was shown the complaint, copy of FIR and verification memo and explained to them on 11.07.2017. He denied the suggestion that complainant produced a sum of Rs. 20,000/- on 11.07.2017 or that complainant was instructed to give the said money to Deepak Vashist only on specific demand and not otherwise or that Shakeel Ahmed was asked to act as shadow witness and to remain with the complainant and over hear the conversation and to show the transaction of bribe amount. He also denied the suggestion that he saw person wearing black t-shirt talking to complainant or that complainant informed the TLO that he had handed over the bribe money to person wearing black t-shirt on direction of accused Deepak CC No. 08/2017 Page no. 55 Vashist. PW-8, Satyapal Sharma denied number of proceedings done by CBI. He categorically stated that he had not seen Mange Ram going inside PS Vasant Kunj and cannot tell what was done by Mange Ram of Rs. 20,000/-.
60. PW-25, SI Shitanshu stated that he had prepared memo of sealing of NVR, Ex. PW2/H, however, the said memo does not bear his signature which is also quite abnormal as the person preparing the document would not put his signature on the document.
61. There is no reasonable justification regarding aforesaid discrepancies in the documents of prosecution, proceedings conducted by CBI and material contradictions in the statements of independent witnesses namely Satyapal Sharma, PW-8 and Shakeel Ahmed, PW-20. The testimony of none of the said witnesses is trustworthy. The testimony of PW-2, Mange Ram is also not worthy of reliance in view of contradictions and improvements. It will not be safe to rely upon such testimonies. Thus it cannot be said that prosecution has established that there was demand of bribe on the part of accused Deepak Vashist.
62. Now it takes us to another contention of Ld. PP that demand stands proved through conversation recorded through DVR. So far as conversation dated 10.07.2017 is concerned, PW-2, Mange Ram has in his chief examination stated that no demand of bribe was CC No. 08/2017 Page no. 56 made by accused on 10.07.2017 although in cross-examination by Ld. PP he admitted that demand was made on 10.07.2017. PW-2 stated that during conversation he said Rs. 15,000/- and accused said double and then amount was settled at Rs.20,000/-. But the conversation recorded in memory card Ex.PW4/Article-4 and transcription, Ex.PW-2/V do not have any mention of Rs.20,000/-.
63. Here it also needs to be mentioned that on 11.07.2017 when the accused Deepak Vashist asked the complainant to pay the money to the person wearing black t-shirt and complainant asked accused Deepak Vashist as to how he would identify that person and accused replied that the said person would identify the complainant himself and he knows the complainant. This part of conversation is also missing from the recording in the memory card, Ex. PW2/N. Here it also needs to be mentioned that the memory card Q-3, Ex.PW-2/N was played in court and PW-2 Mange Ram stated that last part of conversation is in voice of Deepak Vashist while as per prosecution the said conversation is in the voice of accused Dharam Raj.
64. Then as per PW-23, S.P.Singh, Inspector, CBI, the transcription, Ex.PW2/U, Ex.PW2/V and Ex.PW2/W was prepared by him on 21.09.2017 from the copy of memory cards, Ex. Q-1, Q-2, Q-3 and S-1. PW-23 stated in his testimony that vide letter dated 14.07.2017 he had sent Ex. Q-1, Q-2, Q-3, S-1 to CFSL for opinion CC No. 08/2017 Page no. 57 and for making investigation copy of the exhibits and thereafter vide letter dated 13.09.2017, Ex. PW14/DX-1, Ex. Q-1, Q-2, Q-3, S-1, S-2 and DVR were sent to CFSL for expert opinion. However, it is not clear from the record as to when the copies of aforesaid memory cards were received in CBI office from CFSL and whether CFSL at all prepared any copy of aforesaid memory cards and sent to CBI.
65. There are contradictions in the testimony of PW-23. PW- 23 stated that in this case before asking CFSL to make copies of recorded conversation, the TLO had already made a copy of said conversation for IO and said copy was made through write blocker and it were made during trap proceedings. PW-23 was asked to go through the record and after going through the record, PW-23 stated that copies of the recorded conversation were prepared only by CFSL and TLO did not prepare any copy of the said recorded conversation. He stated that he did not remember and cannot tell after seeing the record when he received copy of recording. There is nothing on record to show that CFSL prepared copies of aforesaid exhibits and sent back to CBI before 13.09.2017 when the aforesaid case properties were again sent to CFSL.
66. PW-14 S.k.Chaudhary, Sr. Scientific Officer, Grade-0II, Physical, CFSL, New Delhi no where stated that the aforesaid memory cards were sent to CFSL for making copies, rather he states that the case was received in laboratory on 13.09.2017 for CC No. 08/2017 Page no. 58 examination of exhibits. His report also does not mentions about making copies of memory cards, Ex.PW2/Article-1, Ex.PW-2/Article-4 and Ex.PW2/N by CFSL. Thus the custody of memory cards and preparation of transcription from memory cards is shrouded with doubts and raises question regarding the proceedings conducted by CBI.
67. It has already been discussed that PW-8 Satyapal Sharma, PW-19, Bhupinder Singh and PW-20, Shakeel Ahmed are all independent witnesses and have not supported the prosecution case on material aspects which created serious doubt regarding the proceedings conducted by CBI.
68. Now the question arises as to whether the said conversations recorded in the memory cards, Ex.PW2/Article-1 (Q-1), Ex.PW-2/Article-4 (Q-2) and Ex. PW2/N (Q-3) are sufficient for holding that there was demand on the part of accused.
69. It will be apt to refer some of the judgment relevant on the subject. In the judgment of Ram Singh Vs. Col. Ram Singh, AIR 1986 SC 3, it is clearly observed that relying upon the recorded conversation, the possibility of tampering should be clearly ruled out.
70. In the judgment of S.M. Katwal Vs. Veerbhadra Singh, Hon'ble Supreme Court did not rely upon the CD containing voice CC No. 08/2017 Page no. 59 recording when the same remained unsealed during the course of inquiry and investigation and in view of the report of the Forensic Expert that authentication of tape recorded conversation was not possible in the absence of phone call details and original calling device.
71. Further, in the judgment of Nilesh Dinkar Paradkar Vs. State of Maharashtra, Hon'ble Supreme Court observed that evidence of voice identification is at best suspect, if not wholly unreliable and accurate voice identification is much more difficult then visual identification. It is prone to such extensive and sophisticated tampering, doctoring and editing with the reality can be accordingly replaced by fiction, therefore, the Court have to be extremely cautious basing conversation purely on the voice identification.
72. Thus considering the judgment of Nilesh Dinkar Paradkar Vs. State of Maharashtra, I am unable to place reliance on the said recordings in the memory cards, Ex.PW2/Article-1(Q-1), Ex.PW- 2/Article-4 (Q-2) and Ex. PW2/N (Q-3).
73. Thus the prosecution has failed to establish demand of bribe money on the part of accused persons.
ACCEPTANCE & RECOVERY OF TAINTED MONEY CC No. 08/2017 Page no. 60
74. Now, turning to the next question whether there is acceptance of money on the part of the accused and whether there has been recovery of tainted money from the accused.
75. Before proceeding further it is relevant to point out that there has not been recovery of tainted money. As per prosecution accused Dharam Raj ran away from spot after taking bribe amount. The accused Dharam Raj was arrested and remained in police custody for two days, however, tainted amount could not be recovered.
76. As per prosecution case on 11.07.2017 a trap was laid by the CBI officials and complainant, independent witnesses namely Satyapal, PW-8 and Shakeel Ahmed, PW-20 along with CBI team visited the Vasant kunj Police Station. The complainant went to accused Deepak Vashist and PW-20 Shakeel Ahmed was following the complainant and the other independent witness Satyapal, PW-8 was with the CBI team which was outside the Police Station. Complainant went inside the office of accused Deepak Vashist, however accused did not demand any money from complainant and complainant came out from the office room of accused Deepak Vashist and when he was going out of PS Vasant Kunj, he received call from accused Deepak Vashist and Deepak Vashist asked him to pay the bribe amount to person wearing black t-shirt. The complainant met accused no. 2 who was inside the police station and accused no.
CC No. 08/2017 Page no. 61 2 had taken Rs.20,000/- from complainant and fled away from the spot.
77. PW-2 during his chief examination did not mention about the incident dated 11.07.2017 and it is only when the PW2 was declared hostile and cross-examined by Ld. PP and suggestions were made regarding incident darted 11.07.2017, he only answered in affirmative saying "It is correct". PW-2 did not narrate the incident dated 11.07.2017 himself.
78. It is noted that PW-20 Shakeel Ahmad was following the complainant when he was going towards the office room of accused Deepak Vashist and waited for complainant, outside the office room of Deepak Vashist and thereafter followed him and was near to the complainant when the transaction of handing over of bribe amount by complainant to accused Dharam Raj took place. However, PW-20 Shakeel Ahmed did not saw Mange Ram giving the said amount to accused Dharam Raj. PW-20 stated that he had not seen that Mange Ram had given any money to said person wearing black t-shirt and during that time he was following the complainant. PW-20 stated to have seen a fat man in black t-shirt talking to Mange Ram but did not see Mange Ram handing over money to accused Dharam Raj. It is difficult to understand as to why PW-20 Shakeel Ahmed could not see the complainant giving tainted amount to accused Dharam Raj, if the said transaction had taken place. No reason had been assigned by CC No. 08/2017 Page no. 62 the prosecution for said discrepancy.
79. PW-20, Shakeel Ahmed has even denied the suggestion given by Ld. PP that complainant informed that he had handed over the tainted bribe amount to the person wearing black t-shirt and having healthy built on the direction of accused Deepak Vashist. He also denied the suggestion that complainant told that a healthy person approached complainant and asked the complainant whether accused had sent him and he replied Yes and he told him to deliver the bribe amount. PW-20 has not supported the prosecution case regarding handing over of the bribe amount by the complainant to accused no.
2. It also needs to be recorded that SI Shitanshu Sharma, PW-25 stated that he was inside the police station, however, he also did not saw complainant giving money to accused Dharam Raj.
80. There are different statements of prosecution witnesses as to who had kept Rs.20,000/- in the pocket of complainant. PW-2, Mange Ram stated that he had himself kept the said amount in his pocket. PW-8, Satyapal Sharma stated that he had kept the said amount in the pocket of complainant and PW-20, Shakeel Ahmed stated that government currency notes after applying powder were kept in the pocket of Mange Ram by SI, CBI. Therefore, it is also disputed as to who had kept the tainted amount in the pocket of Mange Ram.
CC No. 08/2017 Page no. 63
81. The independent witnesses Satyapal Sharma, PW-8 and Shakeel Ahmed, PW-20 did not support of the case of prosecution on many aspects.
82. PW-8, Satyapal Sharma who was also accompanying CBI team on 11.07.2017 made several contradictory statements touching the root of the matter. PW-8 stated that Rs.20,000/- were smeared with some powder and these rupees were with CBI officials and he cannot say who had brought these rupees but same were kept in an envelope by some CBI official. PW-8 stated that he had not seen Mange Ram talking to any person inside PS Vasant Kunj and he cannot tell what was done by Mange Ram of Rs.20,000/-. PW-8 denied to have seen complaint, FIR and verification memo. PW-8 denied the suggestion of Ld. PP that complainant produced a sum of Rs. 20,000/- comprising 10 number of GC notes of denomination of Rs.2000/- or that he had stated so to the IO. PW-2 further denied the suggestion that he saw complainant talking to some person wearing black t-shirt or that he had stated so to the IO or that at about 4.50 hours complainant came outside PS Vasant Kunj and informed to TLO that he had handed over the bribe money to person wearing black t- shirt on the direction of SI Deepak Vashist. He further denied the suggestion that Mange Ram was directed by CBI official not to touch the tainted money and hand over the same to SI Deepak Vashist on his specific demand or direction to some other person or that Shakeel Ahmed was asked to act as shadow witness and to see the CC No. 08/2017 Page no. 64 transaction of bribe money which may take place between accused and complainant. PW-8 also denied the suggestion that IO visited Deepak Vashist's room, challenged accused Deepak Vashist for demand and acceptance of Rs.20,000/- and accused got perplexed.
83. PW-20, Shakeel Ahmed has also not supported the prosecution case on many more points. PW-20 stated that he had not read the CCTV footage identification memo dated 11.07.2017 before putting his signature. He stated that some papers were prepared by CBI officials but he did not know about the contents of those papers. No copy of footage of NVR was prepared in his presence. The proceedings regarding copying data from NVR to pen drives, as mentioned at Portion A to A in Ex. PW2/H (sealing memo of NVR), was not conducted in his presence. The entire writing work was done in the CBI office. Rough sketch, Ex.PW 2/K was prepared in CBI office. He did not recollect where recovery memo, Ex. PW2/O was prepared. With regard to arrest cum personal search memo, Ex. PW2/L , PW-20 stated that this document was not prepared in his presence and other signatories did not sign said documents in his presence. He was sitting in another room and was called by CBI official to put his signature and the CBI official did not disclose the contents of that document. He stated that no specimen voice of anyone was taken in his presence in CBI office. He has also disputed the proceedings regarding running of CCTV Footage in PS and identification of Ct. Dharam Raj therein. PW-20 denied the CC No. 08/2017 Page no. 65 suggestions of Ld. PP regarding running and seizure of CCTV footage, preparation of rough sketch, arrest of accused Deepak Vashist in his presence, hearing the recorded conversation through memory card, Ex.PW2/N, preparation of transcription memo, Ex.PW2/W, recording of specimen voice sample in Ex. PW2/Q. There are gross inconsistencies and material contradictions in the testimonies of PW-2, Mange Ram, PW-8 Satyapal Sharma and PW- 20, Shakeel Ahmed, which goes to the root of the matter.
84. Further the conversation recorded in memory card Q3, Ex.PW2/N is not worthy of reliance and it has already been discussed in previous paras.
85. Ld. PP has placed reliance on several judgments to support his case. In the judgment Raman Kalia & Ors. Vs. State of Gujarat, 1979 AIR (SC) 1261, Hon'ble Supreme Court observed that the testimony of the witness cannot be rejected merely on the ground that he was inimical to accused. In Babu & Others Vs. State of UP, Hon'ble Supreme Court has made similar observations.
86. Further in K. Ramajayam @ Appu. Vs. Inspector of Police, Chennai, 2016 CrlJ 1542, Hon'ble Supreme Court observed that the method evolved by Scientific Officers of Tamil Nadu Forensic Department to analyse and give their opinions on the electronic data, are correct and cannot be faulted. Hon'ble Supreme Court observed CC No. 08/2017 Page no. 66 that opinion of an expert, which is relevant U/S 45 of Indian Evidence Act. 1872 when accepted by the Court graduates into the opinion of the Court. The Central government had not issued Notification U/s 79A of Information Technology Act, 2000 in the said case.
87. In the judgment State of Punjab V. Hari Singh & Ors., 1974 AIR (SC) 1168, Hon'ble Supreme Court observed that as human testimony resulting from widely different power of observation and description, is necessarily faulty and even truthful witnesses not infrequently exaggerate or imagine or tell half truths, the Courts must try to extract and separate the hard core of truth from the whole evidence. That is what is meant by the proverbial saying that Courts must separate "the chaff from the grain". If, after considering the whole mass of evidence, a residue of acceptable truth is established by the prosecution beyond any reasonable doubt the Courts are bound to give effect to the result flowing from it and not throw it overboard on purely hypothetical and conjectural ground.
88. Hon'ble Supreme Court in Vinod Kumar Vs. State of Punjab, 2015 (3) SCC 220 observed that testimony of hostile witness can be relied upon by the prosecution as well as the defence.
89. In Sohrab and Os. Vs. State of MP, Hon'ble Supreme Court observed that entire evidence of prosecution not liable to be discarded because of contradiction and discrepancy therein.
CC No. 08/2017 Page no. 67
90. Further in Gain Singh Vs. State of Punjab, 1974 AIR (SC) 1024, Hon'ble Supreme Court observed that testimony of police officials cannot be discredited merely because they are police officials.
91. In State of MP Vs. Dharkole @ Govind Singh, 2005 AIR (SC) 44, Hon'ble Supreme Court observed that doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of th evidence in the case.
92. The judgments referred by Ld. Public Prosecutor does not help the case of the prosecution. The independent witnesses namely PW8, Satya Prakash, PW-19 Bhupender Dutta and PW-20, Shakeel Ahmed did not support the case of the prosecution on material points which goes to the root of the matter. Even PW-2, complainant did not state the incident dated 11.07.2017 himself and it is only when he was given suggestion by Ld. Public Prosecutor after declaring the PW-2, a hostile witness, the complainant (PW-2) admitted the case of the CC No. 08/2017 Page no. 68 prosecution. Further it has already been pointed out that there are gross discrepancies in the verification memos dated 03.07.2017 and 10.07.2017 prepared by CBI. The conversation recorded in the memory cards, Ex.PW2/Article-1, Ex.PW-2/Article-4 and Ex. PW2/N is also shrouded with doubts.
93. Thus considering the totality of facts and circumstances, I conclude that the prosecution has failed to prove beyond reasonable doubt that there has been demand on the part of bribe on the part of accused Deepak Vashist and acceptance of bribe money by accused Deepak Vashist through co-accused Dharam Pal. Admittedly tainted amount has not been recovered. The prosecution failed to show that there was any conspiracy on the part of accused persons for commission of aforesaid offences and that accused persons had caused disappearance of evidence of offence.
94. Pondering over the ongoing discussion, I am of the considered opinion that prosecution has failed to bring home guilt of accused persons namely, Deepak Vashist and Dharam Raj, beyond reasonable doubt, accordingly, I hereby acquit them from all the charges.
ARVIND Digitally signed by
ARVIND KUMAR
KUMAR 13:03:24 +0530
Date: 2019.12.23
Announced in the open court (Arvind Kumar)
on 20.12.2019 Spl. Judge (PC Act) CBI-10
Rouse Avenue Courts
New Delhi
CC No. 08/2017 Page no. 69
CC No. : 08/2017
RC No. : DAI-2017-A-0027
Branch : ACB/CBI/New Delhi
CBI Vs Deepak Vashist
20.12.2019
Present : Sh. Naveen Giri, Ld. PP for CBI.
Accused Deepak Vashist in person.
Sh. Sanjeev Bhardwaj, Ld. Counsel for accused no. 1, Deepak Vashist.
Accused no. 2, Dharam Raj is person.
Sh. Hemant Shah, Ld. Counsel for accused no. 2, Dharam Raj.
Vide separate judgment, announced in open Court, accused no.1, Deepak Vashist is acquitted for the offences charged against him U/S 7 of PC Act, 1988 and U/S 13(2) r/w Section 13(1) (d) of P.C. Act, 1988.
Accused Dharam Raj is acquitted for the offences charged against him U/S 201 IPC.
Accused no.1 Deepak Vashist and accused no.2 Dharam Raj are acquitted for the offences punishable under Section 120B IPC r/w 201 IPC r/w Section 7 and Section 13 (2) r/w Section 13(1) (d) of P.C. Act.
File be consigned to record room.
ARVIND Digitally signed by ARVIND KUMAR KUMAR (Arvind Date: 2019.12.23 Kumar) 13:05:28 +0530 Spl. Judge ( PC Act) CBI-10 Rouse Avenue Courts New Delhi/20.12.2019 CC No. 08/2017 Page no. 70