Delhi District Court
Case Titled As M. Narsinga Rao vs State Of Andhra Pradesh, on 27 October, 2018
CBI/1/2018, RC No. 41(A)/2017
IN THE COURT OF SH. PULASTYA PRAMACHALA
SPECIAL JUDGE (PC ACT) CBI : EAST DISTRICT
KARKARDOOMA COURTS, DELHI
Registration No. : CBI/1/2018
Under Section : under Section 7 and under Section 13 (1) (d)
read with Section 13 (2) of The Prevention of
Corruption Act, 1988,
Branch : Anti Corruption Branch/CBI/ New Delhi
FIR No. : RC-DAI-2017-A-0041-DLI, CBI/ACB/New Delhi
CNR No. : DLET01-002056-2018
In the matter of :-
CBI
VERSUS
SH. VIJAY KUMAR
(Sub Inspector, Delhi Police, PS. Krishna Nagar, Delhi)
S/o. Sh. Tej Ram,
R/o. Village/Post Office - Surana,
District- Ghaziabad, U.P.-201206.
Name and particulars of complainant : Sachin Tyagi
S/o Sh. Harish Tyagi,
R/o X/4029, Street No. 15,
Shanti Mohalla, Gandhi Nagar,
Delhi-110031.
Date of Institution : 28.03.2018
Date of reserving judgment : 09.10.2018
Date of pronouncement : 27.10.2018
Decision : Accused is convicted u/s 7 &
13(2) read with 13 (1) (d) (ii) of
Prevention of Corruption Act,
1988.
(Section 437-A Cr.P.C. complied with)
JUDGMENT
THE CASE SET UP BY THE PROSECUTION :-
1. Briefly stated, accused Vijay Kumar was working as Sub Inspector in Delhi Police and was posted in Krishna Nagar Police Station. As per Page 1 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 allegations leveled in the chargesheet, complainant namely Sachin Tyagi had made certain complaints before EDMC against illegal and unauthorized constructions over certain properties. On 11.12.2017, accused SI Vijay had pressurized the complainant to withdraw his complaints, while acting in connivance with other private persons. At the same time, accused demanded bribe of Rs. 2 lacs from the complainant, because certain complaints of extortion etc. were pending against complainant in PS Krishna Nagar.
2. On complaint of Sachin Tyagi, a verification process was conducted, wherein conversation between parties involving Sachin's friend Narender and accused were allegedly recorded. A telephonic talk between Narender and accused was also recorded. Thereafter, a trap was laid by CBI. Initially, demand was made for Rs. 2 lacs, however, during bargain and deliberations accused settled at Rs. 1,20,000/- (Rs. One lac twenty thousand only) as bribe, in order to see that those complaints against Sachin were disposed off. The demand was coupled with threat that on failure to pay the bribe, complainant would have been implicated in false cases.
3. Accused Vijay Kumar was arrested by CBI on 28.12.2017, after a trap laid on same day. Accused was allegedly caught red handed, while demanding and accepting a legal gratification of Rs. 1.2 lacs, at Police Post, old Seelampur, Delhi.
4. On the basis of aforesaid allegations, which are based on the statements of various witnesses, opinion of CFSL regarding presence of phenolphthalein in the hand washes of the accused, acceptance and recovery of bribe amount of Rs.1.2 lac from the possession of accused, CBI filed chargesheet against accused Vijay Kumar for offence punishable u/s 7 and u/s 13 (2) read with Section 13(1)(d) of P.C. Act Page 2 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 1988.
CHARGE :-
5. Charges were framed against accused Vijay Kumar on 19.04.2018 for aforesaid offences, to which he pleaded not guilty and claimed trial. DESCRIPTION OF PROSECUTION EVIDENCE :-
6. Prosecution examined 24 witnesses in support of its case, as per following descriptions :-
S.No. Name of Role of witness Proved document/ Witness article CW-1 Insp. Arjun He brought the malkhana Ex. CW1/A (Malkhana (Exam Singh register -1, malkhana register -1);
ined register -2, temporary Ex. CW1/B (malkhana by issue register, malkhana register -2); Court) cash book and malkhana
locker operation register. Ex. CW1/C (temporary issue register);
Ex. CW1/D (malkhana
cash book);
Ex. CW1/E (malkhana
locker operation register)
PW-1 Sh. Kamal He was the Nodal Officer Ex. PW-1/A (covering
Kumar of Reliance Jio Infocom letter); Ex. PW-1/B
Ltd. He produced copy of (certified copy of CAF in
CAF, CDR, Certificate the name of Narender
under Section 65-B of Kumar); Ex. PW-1/C
Evidence Act and Cell ID (Certified copy of CDR);
Chart in respect of mobile Ex. PW-1/D (Certificate no.7042302521 issued in under Section 65-B of the name of Sh. Narender Evidence Act); Ex. PW-1/E Kumar (PW11). (certified copy of Cell ID Chart). Ex. PW1/D1 (covering letter Ex. PW1/A having typographical error) PW-2 Sh. He was the Nodal Officer Ex. PW-2/A (covering Surender of Bharti Airtel Ltd. letter);
Kumar Page 3 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 He handed over CAF, Ex. PW-2/B (Certificate certified copy of CDR for under Section 65-B of the period from Evidence Act); Ex. PW-2/C 27.12.2017 to 28.12.2017, (certified copy of CAF in Certificate under Section the name of Dileep Kumar) 65-B of Evidence Act and ; Ex. PW-2/D (Certified Cell ID Chart in respect of copy of CDR) & Ex. PW-
mobile no.9810550676 2/E (Certified copy of Cell
issued in the name of Sh. ID Chart).
Dileep Kumar (PW4).
PW-3 Sh. Kamal He was JE Building Ex.PW-3/A (FIR in respect
Prakash Department-I, Shahdara of property no.X/ 3782,
Yadav South Zone, EDMC. He Gali No.8, Shanti Mohalla
booked two properties Delhi);
bearing nos. 3986 & 3782, Ex.PW-3/B (Show Cause
both situated at Shanti Notice in respect of
Mohalla, Gandhi Nagar, property no. X/ 3782, Gali
Delhi, for unauthorized No.8, Shanti Mohalla
construction under DMC Delhi);
Act, put up his report
before concerned AE was Ex.PW-3/C (FIR in respect
made by him and show of property no.X/ 3986,
cause notice was sent to Gali No.14, Shanti Mohalla
Mr. Khanna (owner of both Delhi);
the properties). Ex.PW-3/D (Show Cause
On 31.10.2017 he sealed Notice in respect of
both these properties. He property no.X/ 3986, Gali
received a complaint dated No.14, Shanti Mohalla
07.11.2017 from Balaji Delhi);
Association regarding Ex. PW-3/E (Sealing order
tampering of seal in of property no. X/3782); &
aforesaid two properties
and marked the same to Ex. PW-3/F (Sealing order
concerned JE, Ward of property no. X/3986);
No.26E on 10.11.2017 as
he was transferred from
that department. He
proved two FIRs in respect
of properties bearing no.
X/3782 and X/3986, Show
Cause Notices, orders of
sealing of aforesaid
properties
Page 4 of 117 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District
Karkardooma Courts, Delhi
CBI/1/2018, RC No. 41(A)/2017
PW-5 HC Anil He was posted in PS Ex.PW-5/A (Notice)
Kumar Krishna Nagar and deposed
that accused was his
Division Officer in Division-I.
He identified signature of
accused and proved notice
under Section 41.1 Cr.P.C
given to complainant Sachin
Tyagi.
PW-6 ASI He was posted as ASI in PS Ex.PW-6/A (seizure
Sahansar Krishna Nagar. He identified memo) &
Veer Singh signature of SI Vijay Kumar Ex.A3 (copy of duty
on certain documents and register).
proved seizure memo
prepared by IO regarding
copy of duty register
(chitha), handed over by
him to CBI vide aforesaid
seizure memo.
PW-7 Sh. He was posted as ASI in PS Ex. PW-7/A (seizure
Rajender Krishna Nagar. He received memo);
Kumar Tyagi a call at about 08:30 to Ex. PW-7/B (DD No.39A
09:00 PM on 19.11.2017 dated 19.11.2017);
with regard to a quarrel.
Ex. PW-7/C (true copy of
On 30.11.2017 complainant original complaint of
handed over him a written Sachin Tyagi);
complaint which disclosed
offence under Section 323 Ex. PW-7/D (true copy of
and 506 IPC. He prepared MLC dated 19.11.2017 of
NCR and made DD entry. Sachin Tyagi);
Later on, he handed over Ex. PW-7/E (true copy of
certain documents to CBI office copy of receipt of
and proved seizure memo, Sachin Tyagi) &
true extract of DD no.39A Ex. PW-7/F (true copy of
dated 19.11.2017, true copy original record of NCR
of original complaint given made at serial no.27A on
by Sachin Tyagi, true copy 30.11.2017 in DD
of MLC, copy of office copy register);
of receipt of Sachin Tyagi &
copy of relevant pages of
the DD entry register.
Page 5 of 117 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District
Karkardooma Courts, Delhi
CBI/1/2018, RC No. 41(A)/2017
PW-8 Sh. He was posted as JE, Ex.PW-8/A (seizure
N.S. Meena Building Department-I, memo)
EDMC, Shahdara, South
Zone, Delhi.
He furnished original record of demolition carried out in properties no.X/3782, gali no.8 and X/3986, gali no.14, both situated at Shanti Mohalla, Gandhi Nagar, Delhi, two files of unauthorized constructions in the aforesaid two properties and complaint of Sh. S.S. Tyagi. He proved seizure memo and identified his signature on demolition order as well as on the action taken report on the back side of the demolition order.
PW-9 Sh. Rajesh He was owner of Ex.PW-9/A (complaint Khanna aforesaid two properties. made by PW9 to police) He had made complaint against Sachin Tyagi in PS Krishna Nagar with regard to extortion of money from him on the pretext of making complaints in MCD to demolish and seal the aforesaid two buildings, on account of which demolition was carried out in property no.X/3782 by EDMC.
He further deposed that on 21-22.12.2017 Sachin Tyagi along with his friend Narender approached him to settle the dispute.
He further deposed that on 24.12.2017 he received a call from Narender to come to PS and to take back his complaints. Narender made him to talk to SI Vijay, who told him that Sachin Tyagi was from his village and further asked him to take Rs.1.2 lac from Sachin and settle the dispute.
On 27-28.12.2017 at about 01:00 PM, he visited PS on the asking of Narender, who asked him to come to PS to take money. In the PS he came to know that CBI had apprehended SI Vijay. CBI officers locked him in a PS. He identified accused before the court.
(Hostile witness) Page 6 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 PW- Sh. Sachin He was complainant in the Ex.PW-10/A (complaint 10 Tyagi present case. He narrated made to Executive all the incidents to CBI. Engineer EDMC);
On the basis of his Ex.PW-10/B
complaint, a trap was laid (application to EDMC
and accused was for withdrawal of these
apprehended. He proved complaints) &
his complaint made to
Executive Engineer, Ex.PW-10/C (complaint
EDMC in respect of all made to CBI).
illegal construction in Ex. PW10/P-1
aforesaid both properties, (complaint given on
application to EDMC for 26.04.18).
withdrawal of these Ex. PW10/P-2
complaints. (complaint dated
He also proved complaint 13.11.17).
made to Mr. Bhairwa, CBI Ex. PW10/P-3
officer. He further (complaint dated
identified his signature on 07.11.17).
Ex. PW7/C.He also
identified signature of his
father on Ex. PW5/A. He
also identified his
signature on the envelope
bearing currency notes.
He also identified his
signature on memory card
(Q2). (Hostile witness)
PW- Sh. He was friend of Ex.PW-11/A (excerpts
11 Narender complainant. He of conversations
Kumar accompanied complainant between him, PW10
to CBI office for lodging and accused during pre
complaint against trap proceedings);
accused and was witness
to the proceedings of CBI.
Page 7 of 117 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District
Karkardooma Courts, Delhi
CBI/1/2018, RC No. 41(A)/2017
He proved excerpts of Ex.PW-11/B (details of
conversations between currency notes);
him, PW10 and accused Ex.PW-11/C (transcript
during pre trap of conversation
proceedings, details of prepared by SI Dinesh);
currency notes produced Ex.Article/PW-11/1
by Sachin Tyagi to CBI, (envelope containing 60
transcript of conversation currency notes of Rs.
prepared by SI Dinesh, 2000/- each);
envelope containing 60 Ex.Article/PW-11/2
currency notes of Rs. (another envelope
containing memory
2000/- each, another
card);
envelope containing
memory card and several Ex.Article/PW-11/3
(original packing of
other exhibits of the case.
memory card);
He identified his signature
on Ex. PW-10/C, Q1, Q2 Ex.Article/PW-11/4
(plastic cover of
memory card);
Ex.Article/PW-11/5 (memory card/Q1);
Ex.Article/PW-11/6 (sealed parcel/Q2);
Ex.Article/PW-11/7 (cover of Sandisk 8GB micro SD card); Ex.Article/PW-11/8 (plastic cover/Q2) and Ex.Article/PW-11/9 (Sandisk 8GB micro SD card).
Ex.11/D1 (copy of driving license of Narender). PW- SI Dinesh He was 1st IO of the case. Ex.PW-12/A (recovery 12 Kumar He conducted pre trap memo);
proceedings against Ex.Article/PW-12/1
accused in the present (DVR);
case. He proved recovery
memo and DVR. He also Ex.PW-12/D1
identified his signature on (photocopy of driving Q1 and on Ex. PW11/A, license of Sachin) & Ex. PW11/B, Ex.Article/PW-11/2, Page 8 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 Ex.Article/PW-11/3, Ex.PW-12/D2 to Ex.Article/PW-11/4 & Ex.PW-12/D6 Ex.Article/PW-11/5 (photographs of police post, Seelampur).
PW- Sh. Pankaj He was independent/ Ex.PW-13/A (Memo of
13 Chikara shadow witness of the revolver and walky
prosecution. He was talky);
witness to all the Ex.PW-13/B (site plan
proceedings i.e. of police post);
verification, pre-trap and
post trap proceedings, Ex.PW-13/C (transcript
conducted in the present of conversation dated
case. 27.12.2017);
He proved memo of Ex.PW-13/D (transcript
article/ documents seized of conversation dated
by CBI officials, which 28.12.2017);
were handed over to SHO Ex.PW13/E
PS Krishna Nagar. (conversation dated
He also identified his 28.12.2017);
signature on Q1 and on Ex.Article/PW-13/1
Ex.PW-11/A, Ex.PW- (right hand wash);
11/B, Ex.PW-11/C,
Ex.Article/PW-13/2 (left
Ex.PW12/A, Ex.PW5/A,
hand wash);
Ex.PW10/P2,
Ex.PW10/P3,
Ex.Article/PW-11/1, Ex.Article/PW-13/3
Ex.Article/PW-11/2, (cloth pullanda, RHW);
Ex.Article/PW-11/3, Ex.Article/PW-13/4
Ex.Article/PW-11/4 (cloth pullanda, LHW);
Ex.Article/PW-11/5,
Ex.Article/PW-11/6,
Ex.Article/PW-11/7,
Ex.Article/PW-11/8
Ex.Article/PW-11/9 &
Ex.Article/PW-12/2.
Page 9 of 117 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District
Karkardooma Courts, Delhi
CBI/1/2018, RC No. 41(A)/2017
PW- Sh. Naveen He was another Ex.Article/PW-14/1
14 Sigroha independent/shadow (brass seal having mark
witness of the of CBI ACB ND
prosecution. He was also 43/2017) &
witness to all the Ex.PW-14/D1
proceedings i.e. (statement of under
verification, pre-trap and Section 161 Cr.P.C of
post trap proceedings, PW1).
conducted in the present
case.
He also proved memo of
article/ documents seized
by CBI officials, which
were handed over to SHO
PS Krishna Nagar.
He also identified his
signature on Q1, Q2 and
on
Ex.A2, Ex.PW11/A,
Ex.PW11/B, Ex.PW11/C,
Ex.PW12/A Ex.PW13/A,
Ex.PW13/B, Ex.PW13/C,
Ex.PW13/D, Ex.PW13/E,
Ex.Article/PW-11/1,
Ex.Article/PW-11/2,
Ex.Article/PW-11/3,
Ex.Article/PW-11/4
Ex.Article/PW-11/5,
Ex.Article/PW-11/6 to
Ex.Article/PW-11/9,
Ex.Article/PW-12/1,
Ex.Article/PW-12/2
Ex.Article/PW-13/1,
Ex.Article/PW-13/2,
Ex.Article/PW-13/3 &
Ex.Article/PW-13/4,
Page 10 of 117 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District
Karkardooma Courts, Delhi
CBI/1/2018, RC No. 41(A)/2017
PW- HC Shiv He deposed about Ex.PW-15/A (complaint
15 Kumar marking of some of Faisal) &
complaints to him Ex.PW-15/B (complaint
probably in July, 2017 by of Parul Jain.
Reader of SHO, PS
Krishna Nagar for inquiry.
He proved complaints of
Faisal and Parul Jain.
PW- Insp. He was trap laying officer Ex.PW16/A (specimen
16 Naresh (TLO) of CBI in the voice sample memo);
Chandra present case. He Ex.PW16/B (transcript
Nawal arranged two independent of specimen voice
witnesses namely Pankaj sample);
Chikara and Naveen
Sigroha and formed Ex.PW16/D1
raiding team. He got (statement of PW16
arranged Rs.1.2 from under Section 161
Sachin i.e. 60 currency Cr.P.C);
notes in the denomination Ex.PW16/D2
of Rs.2000/- each. All pre (photocopy of
trap proceedings were Ex.PW16/B bearing
conducted under his impression of signature
supervision. of witness);
He prepared pre trap Ex.Article/PW16/1
memo and obtained (original cover of
signature of the memory card);
witnesses. He led the trap
Ex.Article/PW16/2
proceedings against
(plastic cover of
accused Vijay and after
memory card);
his apprehension post
trap proceedings were Ex.Article/PW16/3
conducted under his (memory card);
supervision. Ex.Article/PW16/4
(parcel no.2);
Page 11 of 117 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District
Karkardooma Courts, Delhi
CBI/1/2018, RC No. 41(A)/2017
He formally arrested accused, prepared recovery memo, recorded all the proceedings, obtained 4 days police remand of accused, prepared denial memo in respect of not offering specimen voice sample by the accused.
On 02.01.2018, he moved an application before the court seeking specimen voice sample of the accused and obtained the same vide order of even date. Two experts from CFSL took voice sample of accused in the presence of independent witnesses. He prepared memorandum of process of taking sample voice of accused Vijay Kumar bearing his signature, signatures of CFSL experts, accused and both independent witnesses. He sealed all case properties using brass seal, which was deposited in the Malkhana on respective dates.
Thereafter, on 08.01.2018, he handed over the case file to Insp. Kamal Singh for further investigation of the present case.
PW16 also identified his signature on Q2 and on Ex.A2, Ex.PW11/A, Ex.PW11/B, Ex.PW12/A Ex.PW13/A, Ex.PW13/B, Ex.Article/PW-11/1, Ex.Article/PW-11/2, Ex.Article/PW-11/3, Ex.Article/PW-11/4 Ex.Article/PW-11/5, Ex.Article/PW-11/6 to Ex.Article/PW-11/9, Ex.Article/PW-12/1, Ex.Article/PW-12/2 Ex.Article/PW-13/1, Ex.Article/PW-13/2, Ex.Article/PW-13/3 & Ex.Article/PW-13/4.
PW- Insp. Anil He was also one of the members of trap team. He 17 Kumar was witness to pre trap proceedings. He proved his Singh statement Ex. PW17/D1. He further identified his signature on Q2 and on Ex.PW11/B, Ex.PW12/A & Ex.PW13/B. Page 12 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 PW- Sh. Arun He was Senior Scientific Ex.PW-18/A (photocopy 18 Kumar Assistant, Physics of form signed and Gupta Division in CFSL, New submitted by Mr. Delhi. He recorded Thapliyal);
specimen voice of Mr. Ex.PW-18/B (photocopy
Vijay Kumar. of form signed and
He identified file no.CFSL submitted by Mr.
2018/P-0008 (containing Samuel T.);
two forms signed by both Ex.PW-18/C (photocopy independent witnesses, of declaration signed declaration of accused and submitted by bearing signature of both accused Vijay Kumar); independent witnesses as well as receipt given by Ex.PW-18/D (photocopy Insp. Nawal in respect of of receipt signed and taking memory card). submitted by Insp.
Nawal);
He identified his signature
on Ex.PW16/A,
Ex.Article/ PW16/1;
Ex.Article/PW16/ 2;
Ex.Article/PW16/3 & Ex.
Article/PW16/4.
PW- Sh. Lalit He was witness to recording of specimen voice
19 Kumar sample of accused Vijay and both independent
Thapliyal witnesses. His introductory voice was also recorded prior to recording of specimen voice sample of accused Vijay. He also produced brass seal (CBI ND ACB 49/2017), which was handed over to him by Insp. Nawal.
He identified his signature on Ex.PW16/A,
Ex.Article/ PW16/1; Ex.Article/PW16/2;
Ex.Article/PW16/3 & Ex. Article/PW16/4.
PW- Sh. S. He was the Senior Ex.PW20/A (photocopy
20 Ingarsal Scientific Officer. He of worksheet);
examined Q1, Q2 and S1 Ex.PW20/D1 (copy of
in CFSL and prepared letter received by
worksheet of all the PW20);
laboratory procedures.
Page 13 of 117 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District
Karkardooma Courts, Delhi
CBI/1/2018, RC No. 41(A)/2017
He proved parcel S1, Q1, Ex.Article/PW20/1
Q2 and his laboratory (Parcel 1 of parcel S1);
work sheets. Ex.Article/PW20/2
(parcel Q1) &
Ex.Art./PW20/3 (parcel
Q2).
He also identified his signature on Ex.Article/PW11/2;
Ex.Article/PW11/3; Ex.Article/PW11/4; Ex.Article/PW11/5;
Ex.Article/PW11/6; Ex.Article/ PW11/7; Ex.Article/PW11/8;
Ex.Article/PW11/9; Ex.Article/PW16/2; Ex.Article/PW16/3 &
Ex.Article/PW16/4 (parcel 2 of parcel S1).
PW- Insp. He was officiating SHO of Ex.PW-21/A (memo of
21 Harkesh PS Krishna Nagar at the proceedings conducted
Gaba time of trap conducted by with regard to playing
CBI. recorded conversation
of accused)
PW21 proved memo of proceedings conducted
with regard to playing recorded conversation of accused.
He also identified his signature on seizure memo Ex.PW13/A, complaint on page no.2 of D9, complaint on page no.8 on D9, complaint on page no.9 on D9, complaint on page no. 16 on D9, complaint on page no.17 on D9, complaint on page no.18 on D9, complaint on page no.19 on D9 and complaint on page no.20 on D9.
PW- Sh. Amitosh He was Senior Scientific Ex.PW22/A (report 22 Kumar Officer-II (Physics) in D39);
CFSL, CBI, New Delhi. Ex.Article/PW22/1
He examined parcel Q1, (parcel Q1);
Q2, S1 and DVR, Ex.PW22/D1 (request
prepared his detailed letter sent by court to
report and the sent the Director CFSL);
same to his HOD for his Ex.PW22/D2 (letter
further transmission to sent by CBI to Director
Director, CFSL. CFSL);
Page 14 of 117 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District
Karkardooma Courts, Delhi
CBI/1/2018, RC No. 41(A)/2017
PW22 also identified his Ex.PW22/D3 (copy of
signature on same letter which was
Ex.PW9/1, sent by CBI to Director
Ex.Article/PW20/1, CFSL);
Ex.Article/PW20/2, Ex.Article/PW22/2
Ex.Article/PW20/3, (parcel-Q2);
Ex.Article/PW11/2, Ex.Article/PW22/3
Ex.Article/PW11/4, (parcel-S1) &
Ex.Article/PW11/5, Ex.Article/PW22/4
Ex.Article/PW11/6, (DVR);
Ex.Article/PW11/8,
Ex.Article/PW11/9,
Ex.Article/PW12/1,
Ex.Article/PW12/2,
Ex.Article/PW16/2,
Ex.Article/PW16/3 &
Ex.Article/PW16/4,
PW- Ms. Deepti She was Senior Scientific Ex. PW23/A (report
23 Bhargawa Officer-II cum Assistant prepared by her) &
Chemical Examiner in Ex.Article/PW23/1 (two
CFSL, CBI, New Delhi. cloth pieces stapled on
She conducted chemical a piece of paper).
examination of solutions contained in two sealed glass bottles and gave her expert opinion regarding presence of phenolphthalein in the same.
She prepared draft report of her findings on the basis of her notings and sent her draft to HOD (Chemistry) for technical review and thereafter, HOD again marked this report to her with the direction to prepare final report. She prepared final report and submitted it to HOD for further transmission to Director, CFSL.
PW23 also identified her signature on Ex.Article/PW13/1, Ex.Article/PW13/2, Ex.Article/PW13/3 & Ex.Article/PW13/4.
PW- Insp. Kamal IO of the case. He received case file from Insp. 24 Singh Page 15 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 N.C. Nawal, sent three sealed memory cards, two sealed glass bottles of hand washes to CFSL for examination and expert opinion.
He sent notice under Section 91 to EDMC for production of complaints, notice to service providers of mobile numbers of accused and his friends, obtained CDR, CAF, sent notice to SHO PS Krishna Nagar for providing DD entry number and action taken report in respect of complaint made by complainant, examined both the independent witnesses, seized relevant documents through seizure memo, examined ASI Rajender Tyagi, Dilip Kumar, Sachin Tyagi, Narender Kumar, SI Dinesh, Insp. N.C. Nawal, Insp. A.K. Singh, Insp. Harkesh Gaba, HC Anil Kumar, ASI Sansar Veer and HC Shiv Kumar.
He received original complaint made by Sachin Tyagi to EDMC regarding unauthorized construction in certain properties along with concerned files of those properties from Sh. N.S. Meena, JE, EDMC. He seized those documents.
He also examined Sh. N.S. Meena and Sh. Kamal Yadav, JEs in this regard.
He received chemical examination report along with remnants of exhibits from CFSL through Ct.
Vimal Kumar Pant, ACB, CBI.
He also received copies of memory cards (Q1, Q2 & S1) along with original memory cards from CFSL through same constable. All exhibits were deposited in Malkhana.
He took one set of copies of all three memory cards from Malkhana and prepared transcript of recording in memory card Q1 and Q2, in the presence of independent witnesses namely Pankaj Chikara and Naveen Sigroha as well as complainant Sachin Tyagi and Narender Kumar, on 23.02.2018. He also prepared memo of this proceeding. He sent sealed memory cards (Q1, Q2 & S1) along with sealed DVR to CFSL, Delhi for voice spectrography examination.
Page 16 of 117 (Pulastya Pramachala)Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 He also examined Insp. Harkesh Gaba regarding voice identification of accused in the audio recordings in Q1 & Q2 and a memo in this respect was prepared by him.
He prepared chargesheet after concluding investigation in the present case and filed the same before the court. He also received copy of dismissal order of accused.
He also identified his signatures on Q1, Q2, S1, Ex.PW6/A, Ex.PW7/A, Ex. PW8/A, Ex.PW11/C, Ex.PW11/D, Ex.PW11/E, Ex.PW13/C & Ex.PW21/A.
7. Accused had admitted a number of documents under Section 294 Cr.P.C, hence, formal proof of the same were dispensed with. Accused was examined under Section 313 Cr.P.C, however, accused did not opt to lead any evidence in his defence.
PLEA OF ACCUSED UNDER SECTION 313 CR.P.C.
8. Accused was examined under Section 313 Cr.P.C. In his plea, accused replied that he was innocent and he was falsely implicated in the present case at the instance of Narender. He further replied that he never demanded any money from Sachin or Narender at any point of time. An amount of Rs. 1.5 lacs was settled between Rajesh Khanna and Narender to be paid by Sachin to Rajesh Khanna as compensation. Rajesh Khanna reduced the amount on his request to Rs. 1.2 lacs, which was to be paid by Sachin to Rajesh Khanna directly and he was not the beneficiary of said amount of Rs. 1.2 lacs in any manner. He further replied that no money was ever paid to him by Sachin nor accepted by him at any point of time. The alleged bribe amount was planted upon by CBI to succeed in raid for reward. Even hand washes were also planted upon by CBI.
Page 17 of 117 (Pulastya Pramachala)Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 ARGUMENTS :-
9. A written argument was filed on behalf of accused. Ld. counsel for accused argued that despite availability of presumption u/s 20 of P.C. Act, even in corruption cases, the prosecution is duty bound to prove it's case beyond reasonable doubt and also to prove the fundamental of criminal law, the accused is required to raise a probable defence only. Reliance in this regard was placed on a case titled as M. Abbas v. State of Kerala, 2001 (II) AD (Cr.) SC 337. He further argued that the presumption u/s 20 P.C. Act is available for the offence u/s 7 of P.C. Act only and not for Sec. 13 P.C. Act. Reliance in this regard was placed on a case titled as Subash Parbat Sonvane v. State of Gujarat, AIR 2003 SC 2169.
10.On the contrary, ld. Sr. PP for CBI also filed written argument and argued that case law titled as M. Abbas v. State is not at all applicable, to the facts and circumstances of the present case and the case of prosecution is proved as per requirement of the alleged section of the u/s 7 & 13 (2) r/w 13(1)(d) of PC Act. It was also submitted that the defence which came on record, is totally out of merit of the case. He further argued that the presumption can be drawn against the accused. The expression 'may presume' and 'shall presume' are defined in sec. 4 of the Indian Evidence Act. The presumptions falling under the former category are compendiously known as factual presumptions or discretionary presumptions and those falling under the latter as legal presumptions or compulsory presumptions. When the expression 'shall be presumed' is employed in S.20(1) of the PC Act, it must have the same import of compulsion. Reliance in this regard was placed on a case titled as M. Narsinga Rao Vs State of Andhra Pradesh, Supreme Court 2001 CRI. L. J.515.
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11.Ld. counsel for accused further argued that in trap cases, there were two stages to prove demand i.e. 'initial demand' and 'demand at the spot'. The prosecution is duty bound to prove it's case beyond reasonable doubts to bring sufficient sterling evidence of both the demands on record. He further argued that as per prosecution, the fact about demand of bribe allegedly by accused was conveyed to the complainant (PW10) by his friend Narender (PW11). It is not the case of CBI that any money was demanded by the accused from Sachin Tyagi. However, Sachin Tyagi (PW10) did not support the prosecution case even on initial demand. Similarly, Narender (PW-11) failed to tell the respective dates of so called demands of bribe allegedly made by accused and conveyed by him to Sachin Tyagi (PW10). He further deposed that the demand of bribe is hearsay for Sachin Tyagi (PW10) as till meeting of PW11 with accused on 24.12.2017, there was no whisper of any demand being made by accused from Narender. Ld. counsel for accused further argued that PW11 introduced story of demand of Rs. 5 lacs by accused and communicated it to Sachin Tyagi (PW10), whereas in the complaint Ex. PW10/C, Narender told Sachin that accused Vijay is demanding Rs. 2 lacs. However, there is no reference at all in the statement of PW11, that he conveyed any demand of Rs. 2 lacs to Sachin on 24.12.17, as is mentioned in Ex. PW10/C.
12.Ld. counsel for accused further argued that PW24 Insp. Kamal Singh categorically stated in his cross-examination that allegations of demand of Rs. 5 lacs was not confirmed because, neither any date nor the person conveying such demand was disclosed to him by anyone. PW24 further testified that he asked Sachin about date of demand of Rs. 5 lacs if conveyed to him by Narender and it was told to PW24 that demand of Rs. 5 lac was not conveyed to Sachin and Narender. Ld. counsel for Page 19 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 accused further argued that CBI miserably failed to prove initial demands PW16 Insp. Naval even did not ask Sachin about the date of communication of demand of Rs. 5 lacs to him by Narender; He even did not ask Narender about the dates of demand of Rs. 5 lacs & Rs. 2 lacs and he admitted that he did not have intimation about date, time and place of demand of Rs. 2 lacs and Rs. 5 lacs till 08.01.2018.
13.Ld. counsel for accused further argued that statement of PW9 Sh. Rajesh Khanna proved fatal for CBI and it destroyed the case of CBI by stating that money was demanded for him by accused. Even PW10 & PW11 have so stated about role of PW9 Rajesh Khanna and PW12 SI Dinesh Kumar had admitted about arrival of Rajesh Khanna at police post on 28.12.17, his detention and taking away of phone and then release of the same. PW9 Rajesh Khanna was one of the complainant, who lodged complaint against Sachin Tyagi. PW11 Narender admitted that he was talking with PW9 Rajesh Khanna for settlement. PW9 Rajesh Khanna categorically stated that he demanded Rs. 2 lacs as compensation from Sachin for losses suffered by him etc. and about accused Vijay asking him to reduce the amount to Rs. 1.2 lacs. PW9 during the cross by CBI deposed that he was called for settlement on 28.12.17. He further testified that this amount of Rs. 1.2 lacs was settled for all complaints except that of Parul Jain. He further argued that PW10 Sachin had categorically stated at various stages that SI Vijay asked him to compensate Rajesh Khanna and so on. It is further argued that during cross-examination, prosecution gave suggestion about settlement of complaint after payment of Rs. 1.2 lacs to which he showed ignorance. However, no suggestion was given to Sachin by CBI that amount of Rs. 1.2 lacs was ever demanded by accused for himself as bribe.
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14. Ld. counsel for accused further argued that statement dated 22.05.18 of PW12 did not disclose date and time of any initial demand uptill conclusion of investigation. PW11 twisted the story of CBI by stating that on 27.12.17 he had talked to accused alone and bargained the amount to Rs. 1.2 lacs and that after arrival of Sachin Tyagi, again demand of Rs. 2 lacs was made by accused from Sachin. Even the fact about second time money conversation with Sachin on 27.12.17 was not the part and parcel of statement of PW11, verification memo or Q-1.
15.Ld. counsel for accused further argued that PW11 made improvement before court regarding visiting accused with Rajesh Khanna on 24.12.2017 & about demand of Rs. 5 lacs by accused. PW11 was duly confronted with his statement. PW11 had further shown ignorance whether on 27.12.17, SI Dinesh made enquiry from him about exact date, time and place of demand of Rs. 2 lacs/Rs. 5 lacs or any such enquiry was made by Insp. Nawal/Insp. Kamal. Except complaint Ex. PW10/C and statement of PW-11, CBI failed to prove initial demand. Even PW13 Sh. Pankaj Chikara did not witness the alleged talks dated 27.12.18. Ld. counsel for accused further argued that though the complainant disowned his complaint, but even otherwise it is held by Hon'ble High Court that filing of complaint is not proof of demand. Reliance in this regard was placed on a case titled as Roshan Lal Saini & Anr. v. CBI (Delhi), 2011 (1) JCC 102 Delhi.
16.On the contrary, ld. Sr. PP for CBI argued that case law titled as Roshan Lal Saini v. CBI was not based on the hand wash of the accused. There was a specific demand, acceptance/recovery by the accused Vijay Kumar, which has been proved by the prosecution witnesses i.e. PW10 Sachin Tyagi, PW11 Narender, PW13 Pankaj Chikara & PW14 Naveen Sigroha. Hence, the crux of the citation Page 21 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 submitted by ld. defence counsel does not affect the merit of the case of prosecution.
17.Ld. counsel for the accused further argued that prosecution failed to prove factum of demand of bribe by accused, before alleged money transaction, though demand is 'sine-qua-non' for bringing home the guilt of the accused. Reliance in this regard was placed on cases titled as B. Jayaraj v State of A.P, 2014 (2) RCR (Cr.) 410 SC & Mukhtiar Singh (since deceased) v. State of Punjab, 2017 (3) RCR (Cr.) 694 SC.
18.On the contrary, ld. Sr. PP for CBI argued that though the complainant PW10 Sachin Tyagi turned hostile, however during cross examination by the prosecution, he proved demand, acceptance and recovery, which were further corroborated by PW11 Narender and other witnesses. He further argued that in the instant case, demand acceptance and recovery are proved by the public witnesses, which were further corroborated by Q-1 & Q-2. Despite the fact that complainant turned hostile, he proved demand, acceptance and recovery. Accused was not empowered to get settled or to arrange any compromise between the complainant and PW9 Rajesh Khanna.
19.Ld. counsel for accused further argued that in the present case when no such oral or specific demand of bribe by accused came on record, CBI introduced the story of 'demand by gesture'. The complainant was directed during pre-raid proceedings 'to handover the money to suspect only on his specific demand and not otherwise'. He further argued that it is also held by Hon'ble High Court that 'demand of money by gesture is not a demand'. Reliance in this regard was placed on a case titled as Kanti Prasad Tyagi v. State of Delhi, 2014 (3) RCR (Cr) 570 Delhi.
20.Ld. counsel for accused further argued that factum of demand by gesture was not at all supported by the complainant (PW10). He, rather Page 22 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 stated that he offered Rs. 1.2 lacs to accused for giving it to Rajesh Khanna (PW9), but PW10 did not take and then he kept the money in table drawer of the accused. He further argued that as per PW11 Narender, accused demanded money by gesture, received with his right hand and then kept in the drawer of his table with left hand. He further argued that PW13 Pankaj Chikara & PW14 Navin Sigroha were not the witnesses of demand on 28.12.2017 as they remained outside the police post, though, PW13 Pankaj Chikara was to act as 'shadow witness'.
21.Ld. counsel for accused further argued that in the cross-examination of PW16, on the factum of 'demand by gesture', PW16 was confronted with recovery memo Ex. PW12/A about disclosure of any such fact by Sachin at police post. He further argued that story of 'demand by gesture' was introduced later in the CBI office, when no specific demand of Rs. 1.20 lacs was found in the recording Q2. He further argued that PW10 Sachin was also cross-examined by CBI on this aspect. However nothing material could be extracted from him in this regard. PW12 SI Dinesh Kumar also did not speak specifically about factum of demand by gesture by the accused from complainant. He further argued that thus, CBI failed to prove both initial and crucial demand by any cogent evidence.
22.Ld. counsel for accused further argued that as per case of CBI, only witnesses to the acceptance of alleged bribe money were PW10 Sachin and PW11 Narender. He further argued that complainant (PW10) did not support the CBI's case and rather categorically stated during his examination in chief that 'he put the amount of Rs. 1.2 lacs in the drawer of table of SI Vijay'. PW10 was cross examined by the prosecution and he denied the suggestions given by prosecution. PW10 in his cross- examination further denied suggestion put by prosecution about demand Page 23 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 of bribe by gesture; handing over of Rs. 1.2 lacs by saying 'poore ek bees hain'; accused accepted the bribe from his right hand; transferred to his left hand and kept the same in the drawer of office table, which were confronted to him from portion H to H1 and N to N1 of statement Mark 10/A. Ld. counsel for accused further argued that PW-11 Narender deposed that accused asked for money through gesture; Sachin handed over the currency notes to accused and so on till money was kept in drawer of his table. Ld. counsel for accused further argued that PW-11 Narender was Bad Character of the area of P.S. Gandhi Nagar, Delhi and became a De-facto complainant in the present case, who cannot be relied upon and as such CBI failed to prove the factum of acceptance of Rs.1.2 Lacs by the accused as bribe by any cogent evidence.
23.It was further argued by ld. counsel for accused that on enquiry, it was informed by the accused about location of bribe amount in the left side drawer of his office table. PW-10 complainant did not support the CBI's case on the point of location of bribe amount, which was actually left drawer of his office table. As per statement of PW-10, he left the room of accused after putting money in the drawer of the table for getting a water bottle and thereafter, he kept sitting outside the room of accused. It was further argued that PW-10 was cross examined by the prosecution and he even denied about entering of CBI officials in the room of the accused; introduction by TLO; challenge by TLO; directing accused to put his hands in solution putting of hands by accused in those solutions, the fact of turning pink of the solutions and sealing of bottles. PW-10 categorically stated that at the relevant time, he had gone to fetch water. It was further argued that PW-10 was cross examined about location of bribe money; information by accused about lying of money in the drawer of the table; recovery by Naveen Sigroha and comparison of numbers of Page 24 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 currency notes with documents already prepared. However, PW-10 stated that he was not there at the relevant time.
24.Ld. counsel for accused further argued that PW-10 was cross examined by CBI regarding giving pre-determined signal and sealing of currency notes, which he denied. He further argued that PW-11 Narender deposed about going out of Sachin; arrival of CBI team; enquiry about location of currency notes; disclosure of accused and recovery by Naveen Sigroha. However, he showed ignorance about having stated before CBI officer during his examination about the fact of information regarding location of notes in the drawer given by the accused. This witness was silent about asking by TLO from accused about the location of notes and disclosure by accused regarding lying of notes in the drawer of table. Even PW-12 destroyed the CBI case regarding presence of Sachin and Narender inside the room during proceeding of hand wash and seizure/sealing of currency notes. He further argued that PW-12 in his statement testified that PW-10 Sachin informed TLO about currency notes being lying in the drawer of table of accused. In view of absence of offer of search being given to the accused, coupled with the fact that signature of accused were missing on recovery memo Ex.PW- 12/A, CBI failed to prove on record about recovery of notes at the instance of accused. He further argued that law is well settled that mere recovery, without any demand is valueless. He further argued that PW- 13 & 14 at the most are the witness of the recovery only and not the witness of demand and acceptance. Reliance in this regard was placed on a case titled as B. Jayaraj v. State, (supra) and Suraj Mal v. The State (Delhi Admin.), AIR 1979 SC 1408.
25.On the contrary, ld. Sr. PP for CBI argued that prosecution witnesses successfully proved the demand, acceptance, recovery as well as trap Page 25 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 proceedings of the case. Reliance in this regard was placed on observations made in a case titled as Smt. Shamim v. State (GNCT of Delhi), Crl. Appeal no. 56 of 2018, which reads as under:
"The statements given by the witnesses before the police are meant to be brief statements and could not take place of evidence in the court. Small/Trivial omissions would not justify a finding by court that the witnesses concerned are liars. The prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it."
26.Ld. counsel for accused further argued that the alleged recovery is from the drawer of table of accused, possibility of plantation cannot be ruled out. Reliance in this regard was placed on a case titled as Ganpathi Sanya Naik v. State of Karnataka, AIR 2007 SC 3213.
27.On the contrary, ld. Sr. PP for CBI argued that there was no plantation upon the accused by the prosecution. The investigation in this case was very fair and transparent in all respect and prosecution has proved case of CBI beyond reasonable doubt and that tainted money was received from right hand by the accused and same was kept in drawer of the table by left hand. Thereafter, tainted money was recovered at the instance of accused from his drawer of the table.
28.Ld. counsel for accused further argued that PW-12 S.I. Dinesh Kumar admitted and it is so mentioned in CBI manual that the raiding party should offer its search to the accused before recovery, so as to rule out the possibility of plantation of bribe money. It is the admitted case of the prosecution/ CBI that no such offer of search was given to accused.
Page 26 of 117 (Pulastya Pramachala)Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 Reliance in this regard was placed on a case titled as Karnail Singh v. State of Punjab, 2009 (1) RCR (Cr.) 403 (P&H) and Suresh Kumar v. State of Haryana, 2009 (4) RCR (Cr) 608 (P&H).
29.On the contrary, ld. Sr. PP for CBI argued that the TLO had given his introduction and challenged the accused that he had taken the bribe from the complainant and he was being apprehended by the TLO/Insp. Nawal. Therefore, accused remained mum and he did not protest against his arrest. Even his colleagues did not agitate against the arrest of accused.
30.Ld. counsel for accused further argued that PW-12 S.I. Dinesh further falsified the CBI's case on this aspect, when he categorically stated that Insp. Nawal offered search of trap team to the accused before recovery of currency notes. He submitted that there is no mention about offering of any search to the accused in recovery memo Ex.PW-12/A. Even Insp. Naval denied this fact in his cross-examination.
31.Ld. counsel for accused further argued that it is admitted fact of prosecution that accused was not a signatory to recovery memo Ex.PW- 12/A. He further argued that all presumption goes against CBI that the accused was not present at the time of preparation of recovery memo. This fact is so admitted by PW-17 that accused was not present in the room of TLO, where witnesses were signing recovery memo. Reliance in this regard was placed on a case titled as Janardan Sada @ Matua v. The State (NCT of Delhi), 2012 (2) JCC 1435 Delhi (DB).
32.On the contrary, ld. Sr. PP for CBI argued that it is admitted fact that signature of accused Vijay were not obtained on the recovery memo. Had his signature been obtained on the recovery memo, same would have been adversely hit by Sec 25 & 26 of the Indian Evidence Act.
33.Ld. counsel for accused further argued that possibility of tampering of Page 27 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 case property cannot be ruled out in the present case because the officials namely Smt. Suman Mourya, Ct. Ranjeet Singh, Ct. Mitesh Kumar, Ct. Vimal Kumar Pant and Ct. Suresh Chand Yadav, who had taken the case property to CFSL and had collected the exhibits as well as result from CFSL, were neither cited nor examined as witness by CBI, so as to complete the chain of circumstances. He further argued that documents Ex.CW-1/A to Ex.CW-1/E are enough to show involvement of these witnesses in the investigation and presumption in this regard goes against CBI. He further argued that as per case of prosecution, Ex.Q-1, Ex.Q-2 & Ex.S-1 were sent to Photo Division, CFSL for preparing copies. However, surprisingly there was no entry in Ex.CW-1/A to Ex.CW-1/E regarding dispatch of these exhibits to CFSL on 09.01.2018.
34.Ld. counsel for accused further argued that CBI came with the story that bottles of hand washes were sent to Chemistry Division, CFSL on 10.01.2018 but Ex.CW-1/A shows that these bottles were sent to CFSL & same were received back on 09.01.2018. On 10.01.2018, these bottles were again sent to CFSL but were again deposited back to Malkhana and were again sent to CFSL on 10.01.2018. There was no explanation on record about this ambiguity or multiple entries existing in this regard. He further argued that there was no entry regarding receiving sample seal of Photo Division, CFSL on 06.02.2018 alongwith exhibits. He further argued that the CFSL report Ex.PW-22/A revealed that parcels were opened on 19.04.2018 and the report in this regard was dated 26.04.2018. However, second last entry appearing on last page of Ex.CW-1/A (MR-I) revealed that four sealed parcels Q-1, Q-2, S- 1 & DVR were received from CFSL through Smt. Suman Mourya on 01.03.2018. It clearly showed that the original exhibits were received before starting of examination by PW-22.
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35.Ld. counsel for accused further argued that there was no entry regarding deposit of S-1 by the I.O., after proceedings related to recording of specimen voice of accused was completed on 02.01.2018. He further argued that there is reference of one Inspector Sushil Kumar in Ex.PW- 1/B. However, entire chargesheet is silent as to what was deposited by Inspector Sushil Kumar in Malkhana vide Register MR-II or what was his role in this investigation.
36.Ld. counsel for accused further argued that there was no mention about name of the bank where bribe money was kept in locker vide Ex.CW- 1/E. Even the locker number was not mentioned in the register. He further argued that all presumption goes against CBI that no such locker operation was done. He further argued that in view above discussion possibility of tampering with the exhibits cannot be ruled out and the missing link is fatal for prosecution as it could not be proved that during possession of case property by above persons, it was not tampered with. Reliance in this regard was placed on a case titled as The State of Rajasthan v. Daulat Ram, AIR 1980 SC 1314.
37.On the contrary, ld. Sr. PP for CBI argued that the ld. defence counsel had the opportunity to call the witnesses in his defence, if he was finding any ambiguity in respect of delivering the exhibit in the office of CFSL. However, at this stage, accused can not take the plea that the exhibits were tempered by the prosecution.
38.Ld. counsel for accused further argued that the officials of CFSL who received the exhibits on various dates from ACB/CBI were not examined by prosecution, whose acknowledgment were appearing on copy of forwarding letter sent by S.P. ACB, CBI to Director CFSL. He further argued that the documents Ex.CW-1/A to Ex.CW-1/E are otherwise not legally proved on record as per Evidence Act. It was further argued that Page 29 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 CW-1 was examined by this Hon'ble Court probably U/s 165 Evidence Act. As a matter of fact, the then Malkhana Incharge, who scribed entries Ex.CW-1/A to Ex.CW-1/B, ought to have been examined by CBI. Mere production of original record does not dispense with the requirement of law. The statement of CW-1 is secondary evidence in this case. Moreover, the discrepancies as detailed herein above would have been clarified by the then Incharge and for this reason only, CW-1 was not cross examined by the defence and similarly nothing was got clarified by prosecution. He further argued that none of the entry made in Ex. CW- 1/A to Ex. CW-1/D are anywhere countersigned by the law officer/Sr. PP, so incorporated in Rule 13.21 of CBI Crime Manual and thus, authenticity of Ex. CW-1/A to Ex. CW-1/E is not established before the court.
39.Ld. counsel for accused further argued that neither CW-1 (though not competent to say) nor any other witness stated that "So long as the case property remained in possession of any official, it was not tampered with."
40.Ld. counsel for accused further argued that the report Ex.PW-22/A of Physics Division, CFSL, is not admissible in evidence, because PW-22 was not a competent witness to examine Electronic Evidence, as there is no Gazette Notification till date in favour of CFSL, New Delhi U/s 79-A I.T. Act. This fact was admitted by PW-22 during his cross examination. He further argued that electronic evidence is explained in:-
Sec 29-A IPC:- The words "electronic record" shall have the meaning assigned to them in clause (t) of Sub-section (1) of section 2 of the Information Technology Act, 2002.
Sec. 2 (1)(t) IT Act:- "Electronic record" means data, record or data generated, image or sound stored, received or sent in an Electronic Page 30 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 Form or Micro Film or computer generate micro fiche;
Similarly qualification of expert is defined U/s 45-A Evidence Act and Sec. 79-A I.T. Act.
Sec. 45-A Evidence Act:- When in a proceeding, the court has to form an opinion on any matter relating to any information transmitted or stored in any computer recourse or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence referred to in Sec.79-A of the Information Technology Act, 2000 (21 of 2000) is a relevant fact. Sec.79-A I.T. Act:- Central Government to Notify Examiner of Electronic Evidence- The Central Government may, for the purposes of providing expert opinion on Electronic form evidence before any court or other authority specify, by notification in the Official Gazette, any Department, body or agency of the Central Government or a State Government as a Examiner of Electronic Evidence.
41.Ld. counsel for accused further argued that the report Ex. PW22/A is not admissible because the specimen voice sample of accused was not properly recorded by the I.O, as the text prepared by the I.O. for the purpose of taking specimen voice sample was the reproduction of exact wording from questioned voices. Though, I.O. ought to have framed sentences by using common audible words from the questioned recording, but no such exercise was done by the I.O. Reliance in this regard was placed on a case titled as Sudhir Chaudhary v. State (NCT of Delhi), AIR 2016 SC 3772.
42.On the contrary, ld. Sr. PP for CBI argued that presence of independent witness was not so required for tallying the sample voice of accused with the recorded conversation in this case. The process of recording conversation was fair and transparent. Accused did not prefer to lead Page 31 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 any evidence to counter the process of recording conversation.
43.Ld. counsel for accused further argued that though the DVR was sent to CFSL but no opinion was sought from CFSL, if any tampering was possible with help of the DVR or not. Reliance in this regard was placed on a case titled as Ashish Kumar Dubey v. State through CBI, 2014 (IV) AD (Delhi) 473.
44.On the contrary, ld. Sr. PP for CBI argued that demand, acceptance, recovery as well as proceedings of trap have been proved by CBI in all possible respect and as per requirement of the procedure. It was further submitted that all the trap team members washed their hands, before they had left the CBI office.
45.Ld. counsel for accused further argued that I.O. did not obtain the specimen voice sample of complainant and Narender, so as to bring expert opinion on record that recording Q-1 & Q-2 were having their voices. This fact was more important specially when the recordings Q-1 & Q-2 were not played before PW-10 Sachin Tyagi for the purpose of identification of voices contained therein or at least his own voice. The discrepancy about name of the file appearing in Q-1 as mentioned in the report of the expert Ex.PW-22/A was enough to discard the report of expert because the file number was not correctly recorded in the report. Even copy of the transcript available on the official file of expert showed incorrect file number, which clearly shows that expert had simply copied the file number in his report from the transcript. He further argued that there was no opinion on record whether SD cards Q-1 & Q-2 were compatible with the DVR. Though PW-22 stated so, but his report is silent. It was further argued that the report was otherwise not admissible because PW-22 was not a qualified expert to give opinion on voice identification. The experience cannot substitute the professional Page 32 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 qualification. Reliance in this regard was placed on a case titled as State of Maharashtra v. Sukhdeo Singh & Anr., 1993 (1) CCC 57 SC and Nilesh Dinkar Paradkar v. State of Maharashtra, (2011) 4 SCC 143.
46.On the contrary, ld. Sr. PP for CBI argued that the experts, who had examined the exhibits of this case, were qualified and competent to examine such exhibits. It was also submitted that the report of experts is a piece of corroborative evidence. However, the case of the prosecution was proved by the prosecution witnesses beyond reasonable doubt. It is also submitted that the process of the taking voice sample was very fair and transparent. Onus was on the accused to lead evidence to counter the case of prosecution.
47.Ld. counsel for accused further argued that there was no opinion from any expert as to whether Q-1 & Q-2 were having original recordings or copies. He further argued that the opinion was otherwise biased because the expert was having the identification of speakers of Q-1 & Q- 2 through copies of transcription sent by the I.O. It was held by Hon'ble High Court that voice samples of some unknown persons should be sent for transparency in examination and that the expert should not have the identity of the speaker of questioned voices before examination of any such exhibits. Reliance in this regard was placed on a case titled as Vishal Chand Jain @ V.C. Jain v. CBI, 2011 (1) JCC 570 Delhi.
48.Ld. counsel for accused further argued that PW-22 also falsified the case of CBI when he categorically stated that recording in S-1 was done by using the same DVR which was sent as exhibit to CFSL, whereas on 02.01.2018 when S-1 was recorded, the DVR was lying sealed with the Malkhana of CBI. PW-22 did not produce the Wave Chart of recording pursued by him for the purpose of checking continuity of the recording.
Page 33 of 117 (Pulastya Pramachala)Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 Even he did not mention the description of all the signatures appearing in his report. Reliance in this regard was placed on a case titled as S.K Singhal v. State (CBI) 2013 V AD (Delhi) 660.
49.Ld. counsel for accused further argued that PW-22 was otherwise not competent because the worksheet of the present case were in the handwriting of Ms. Anuradha, Lab Assistant and all presumption goes against the prosecution that no such exhibits were examined by PW-22. Even PW-22 failed to tell the exact date of examination of these exhibits. Hence, the report Ex.PW-22/A could not have been read in evidence by any stretch of imagination.
50.Ld. counsel for accused further argued that in the present case, TLO Inspector Nawal remained I.O. of the case till 10.01.2018. He further argued that legally speaking, he could not have acted as I.O. of the case even for a day as it was admitted by PW-24 Insp. Kamal Singh that T.L.O. could not have continued to investigate the matter further, but in the present case it so happened and Insp. Nawal continued as I.O. till 10.01.2018. Reliance in this regard was placed on cases titled as Megha Singh v. State of Haryana, 1997 (2) RCR 3 SC and Mohmed Salim v. State of Haryana, 2008 (2) RCR (Cr.) 128 (P&H). He further argued that even Rule 10.10 of CBI Crime Manual is talking about this proposition.
51.On the contrary, ld. Sr. PP for CBI argued that in this case Insp. Nawal is the TLO of the case and Insp. Kamal Singh, is the IO of the case. In Vinod Kumar Vs State of Punjab, 2015 CRL. J.1442, Supreme Court held that trap team member can be the IO of the case.
52.Ld. counsel for accused further argued that in the present case PW-13 Sh. Pankaj Chikara, an independent witness was joined in the Page 34 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 investigation, so as to overhear the conversation to be taken place between accused, Sachin and Narinder, which took place on 27.12.2017 & 28.12.2017 and to see the bribe transaction on 28.12.2017. PW-13 could not hear the crucial talks live either on 27.12.2017 or on 28.12.2017. It was further submitted that complainant is always treated as an accomplice. He further argued that another independent witness PW-14 Naveen Sigroha was associated with the CBI on 28.12.2017 only, initially to act as recovery witness but later he also acted as a shadow witness. Even he could not hear the crucial talk which took place on 28.12.2017. Therefore, PW-13 & PW-14 were only the witnesses to alleged recovery and not to the demand and acceptance. Reliance in this regard was placed in the case titled as State (Govt. of NCT of Delhi) v. Girdhari Lal Verma, 2011 (4) RCR (Cr.) 245 Delhi, Kanti Prasad v. State (supra) and Chander Bhan v. State (CBI), 73 (1998) DLT 318 Delhi.
53. On the contrary, ld. Sr. PP for CBI argued that the transaction of bribe was seen by PW11 Narender Kumar and remaining panch witnesses, outside that room did not not affect the merits of the case.
54.Ld. counsel for accused further argued that report of Chemical Division Ex.PW-23/A cannot be read in evidence because the expert PW-23 did not mention about the details of signatures appearing on the bottles in its report. He stated before the court that he did not give much attention to the signature. Reliance in this regard was placed on a case law titled as S.K. Singhal v. State, (supra). He further argued that as per statement of PW23, cloth wrappers were sealed by her on the date of preparing report, however, envelope/parcel Ex.Article/PW-23/1 bore the date as 22.01.2018. It was further argued that the worksheets of the present case were in the hand writing of Lab Assistant Sh. D.S. Meena and gives Page 35 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 presumption that the testing was done by Lab Assistant and the report was mechanically signed by PW23. It was further argued that PW23 in her statement talked about detection of presence of sodium carbonate in the solution. However, there is not mention of conduction of any such test by PW23 in her report Ex. PW23/A.
55.On the contrary, ld. Sr. PP for CBI argued that minor contradictions as appearing in the evidence of witnesses, have no value as per the judgment of Smt. Shamim Vs State (GNTC of Delhi), (supra). There was no false implication of the accused as there is sufficient evidence oral as well as documentary, which is proved by the prosecution beyond reasonable doubts.
56.Ld. counsel for accused further argued that in the present case, T.L.O. shifted proceedings to CBI office from police post with the excuse of "uncondusive atmosphere", whereas all the witnesses admitted that the public persons gathered at the police post were not interfering in the proceedings. The T.L.O. failed to explain plausible/probable ground behind shifting remaining post trap proceedings to CBI office. He further argued that all presumption goes against CBI that T.L.O. shifted to CBI office with the sole purpose to fabricate documents. Reliance in this regard was placed on a case titled as Pyare Lal v. State, I (2008) DMC 806 Delhi.
57.On the contrary, ld. Sr. PP for CBI argued that maximum and almost all substantial proceedings were conducted at the spot and only miscellaneous work was completed in the CBI office and there was no occasion on the part of CBI to fabricate the documents.
58.Ld. counsel for accused further argued that pre-trap memo Ex.PW-11/A shows that laptop and printer were also taken by the TLO to the spot.
Page 36 of 117 (Pulastya Pramachala)Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 However, the plea of "Unconducive Atmosphere" taken by CBI is nothing but an after thought plea, so as to justify preparation of documents at CBI office. Even, PW-16 TLO also admitted this fact that people present at police post were not interfering in the proceedings.
59.Ld. counsel for accused further argued that to justify shifting of proceedings to CBI office, CBI came with the story of running away of accused from the police post; chasing by CBI team; apprehension; bringing back to P.S. and tearing of sweater/clothes of CBI officials. As a matter of fact, no such incident had taken place. Even PW-10 Sachin denied this episode. There were glaring contradictions regarding tearing of clothes of CBI official and had it been so, TLO Insp. Nawal ought to have lodged a complaint with the local police U/s 186/353 IPC but, it was not done so.
60.Ld. counsel for accused further argued that as per TLO, sweater of Insp. Anil was torn. However, PW-16 neither seized the said torn sweater nor mentioned the fact about tearing of sweater in the statement recorded U/s 161 Cr.P.C. or in recovery memo.
61.Ld. counsel for accused further argued that the proceeding dated 02.01.2018 regarding recording of specimen voice of the accused by PW-18 at CFSL New Delhi, is apparently doubtful on the face of record itself because there is no separate record regarding conduction of any proceedings in his office. Though, he mentioned about making entry in the register. There was no reference in memo Ex.PW-16/A regarding recording of any introductory voice and concluding voice of any of the independent witness or voluntariness of accused. Even, at the time of examination of PW-19/Sh. Lalit Kumar Thapriyal, memory card Ex. Article/ PW-16/3 was not played before this witness for identification of voices, so recorded on 02.01.2018 including his voice. It was further Page 37 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 argued that even this part of investigation could not have been read because Insp. Nawal was not competent to conduct the investigation being recovery officer.
62.Ld. counsel for accused further argued that as per CBI case, after receiving pre-appointed signal, PW-17 Insp. Anil Kumar Singh & Insp. Ajay Kumar Singh (not examined) caught hold of hands of the accused from his wrist. However, except PW-17 Anil Kumar Singh, none of the witness talked about catching hold of wrist of the accused by these two officials, rather they categorically stated that accused was caught hold from his "hands". Ld. counsel for accused further argued that "HAND" is defined in New Shorter Dictionary as "THE TERMINAL PART OF THE HUMAN ARM BEYOND THE WRIST CONSISTING OF PALM, FINGER AND THUMB".
63.Ld. counsel for accused further argued that prosecution did not cross examined it's all the witnesses, in order to clarify their stand and as such possibility of transmission of Phenolphthalein Powder from the hands of both the Inspector to the hands of accused could not be ruled out. Reliance in this regard was placed on a case titled as P. Parasurami Reddy v. State of A.P, 2011 (3) CCC 318 SC.
64.On the contrary, ld. Sr. PP for CBI argued that it is the case of CBI that all the team members washed their hands, while leaving the CBI office, which was proved by the different prosecution witnesses in their examination in chief as well as in their cross-examination. There is no question or possibility of transmission of Phenolphthalein Powder from the hands of both the Inspector to the hands of accused. Onus was upon the accused to prove the same, however, he did not do so.
Page 38 of 117 (Pulastya Pramachala)Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017
65.Ld. counsel for accused further argued that all the witnesses disproved their respective statements recorded U/s 161 Cr.P.C. regarding status of leftover/ remaining phenolphthalein power whether it was thrown away or sent back to Malkhana. Further it has come on record that Malkhana Incharge was not keeping any record of use of phenolphthalein powder.
66.Ld. counsel for accused further argued that CBI has failed to prove as to which CBI official applied powder to notes during pre-trap proceedings. As per CBI case and as stated by PW-17/Inspector Anil Kumar Singh, it was applied by TLO. However, Insp. Naval (PW16), in his evidence categorically stated that the powder was applied by one of the subordinate official and not by him. Even TLO was unable to tell the name of the person, who had applied powder on the notes. Rather PW- 11 Narender had categorically stated during his cross examination that powder was applied by Insp. Naval on notes on 28.12.2017 before leaving for police post. (Para-12, chief dated 15.05.2018, pre-lunch). Thus, cross-examination of PW-17 is quite enough to discard CBI's case. It was further argued that TLO Insp. Naval/PW-16 had shown ignorance about the name of the official, who gave demonstration during pre-trap proceedings. PW-10 Sachin destroyed the demonstration given at CBI office by saying that "The person who applied powder over the notes washed his hands and water turned pink".
67.Ld. counsel for accused further argued that PW-16 TLO failed to tell as to which of the CBI officer prepared the solution in the police post and stated that hand washes were taken by Insp. Anil and Insp. Ajay. As per PW-13, Pankaj Chikara, TLO asked some CBI officer to prepare solution. But he failed to tell the name of the person, who took hand wash at police post. As per PW-17 Insp. Anil, the subordinate staffs were asked to prepare solution of water and sodium carbonate and he took Page 39 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 the hand wash himself. He even failed to tell the name of the subordinate staff, who had prepared solution at police post. This contradiction is enough to discard the prosecution case. Reliance in this regard was placed on a case titled as S.K. Singhal v. State (supra). Even PW-14 stated that solution of "Sodium bicarbonate" was prepared, but he was not crossed examination by CBI for this contradiction. Even PW-11, Narender failed to tell the name of the officers, who had taken hand wash at the spot.
68.Ld. counsel for accused further argued that the alleged proceedings related to handwash were doubtful because as per PW-11/Narender, both the washes were put in a bottle and his signatures and signature of Sachin were taken on bottle. He was not confronted by CBI about improvements made by him in his examination in chief, specially about this fact. Reliance in this regard was placed on a case titled as Pyare Lal v. State, (supra). It was further argued that even signature of accused, complainant and Narender were not taken on any of the bottle of hand washes. PW-11 denied the suggestion during cross by defence that his signature were not taken on bottle. It is matter of fact that PW- 10/Sachin had shown his presence outside the room of accused throughout. However, during cross by CBI, PW-10 denied the suggestion in this regard that hand washes were taken in his presence. Even PW- 15/Naveen Sigroha was not sure about obtaining of signature of Narender/PW-11 on the labels of bottles of hand wash. Ld. counsel for accused argued that thus, CBI failed to prove as to who had done the hand wash proceedings and this factum was not proved at all.
69.Ld. counsel for accused argued that PW-11 Narender became a de- facto complaint in this case and he had nothing to do with any dispute between Rajesh Khanna and Sachin or with the accused. PW-11 Page 40 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 Narender is admittedly Bad Character (B.C.) of P.S. Gandhi Nagar, which was so admitted by him. It is held by Hon'ble Supreme Court that the evidence of a witness having 'poor moral fiber and bad antecedent' should not be accepted. It is quite natural that a declared B.C. would keep grudge in his mind against the police officials. Reliance in this regard was placed on a case titled as Sat Paul v. Delhi Admin., AIR 1976 SC 294.
70.On the contrary, ld. Sr. PP for CBI argued that PW11 Narender was not a convict in any case, as deposed by him during his cross examination conducted by ld. defence counsel. Even otherwise, testimony on oath of this witness shows the fair deposition, though, he may be a BC of such area. It was also submitted that being BC is not at all a disqualification to become a credible witness.
71.Ld. counsel for accused further argued that all the complaints, against Sachin Tyagi were of extortion of money by showing fears of action by MCD against the builders. PW-11 was also associated with Bala Ji Mandal RWA and PW-10 & PW-11 were having apprehension that accused would take action against them on the complaints of Rajesh Khanna and others. He further argued that PW-10 was guided by PW-11 to approach CBI, when annoyance was shown by PW-10 regarding sending notice to him by the accused, despite settlement so arrived between him and Rajesh Khanna. Reliance in this regard was placed on a case titled as Ganga Kumar Srivastava v. State of Bihar, AIR 2005 SC 3123.
72.Ld. counsel for accused further argued that accused was honest officer of Delhi Police and victim of circumstances framed by CBI, otherwise CBI ought to have brought one or the other evidence against accused about his bad antecedent. On the contrary it also came on record from Page 41 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 the complaints of various people that Sachin Tyagi was involved in extortion of money by making complaints with MCD against the builders through his Association. Reliance in this regard was placed on a case titled as G.V Nanjundiah v. State (Delhi Administration), AIR 1987 SC 2402. He further argued that the house of the accused was also searched and nothing incriminating was found there.
73.On the contrary, ld. Sr. PP for CBI argued that there is specific demand, acceptance and recovery from the accused, which was proved by the prosecution witnesses and it is not a case of false implication.
74.Ld. counsel for accused further argued that it is well settled law that the statement of tutored witness should be discarded and here PW-12 S.I. Dinesh Kumar categorically admitted that he had gone through his statement before coming to witness box. Similarly PW-16, TLO Insp. Naval stated that his statement U/s 161 Cr.P.C. was seen by him during his examination in chief in court, which clearly demonstrate that his statement U/s 161 Cr.P.C. was lying before him during his examination in chief. Though, there was no permission of court with this witness to refresh his memory. Reliance in this regard was placed on a case titled as Ramesh v. State (Govt of NCT of Delhi), 2013 (2) LRC 237 Delhi.
75.On the contrary, ld. Sr. PP for CBI argued that there was no tutoring of the witnesses prior to their entering into witness box and they deposed out of their free will as to the facts what they saw and heard during proceedings.
76.Ld. counsel for accused further argued that in the present case, accused was arrested on 28.12.2017 and he was remanded to J.C. on 03.01.2018 after 5 days P.C. remand, but PW-16 Insp. Nawal did not record statement of any witness till 08.01.2018 and thereafter, statements of Sachin Tyagi, Narender Kumar, SI Dinesh Kumar,, Insp.
Page 42 of 117 (Pulastya Pramachala)Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 Nawal and Insp. A.K. Singh were recorded by I.O. Insp. Kamal Singh However, he did not record statement of Insp. Ajay Kumar Singh, Insp. R. Philip Yanthan, S.I. Sanjeeb Kumar and the subordinate staff, nor did he cite them as witness in this case. There is no explanation on the record in this regard. All presumption goes against the CBI that these people were never part of this case. Moreover, there is delay in recording statements, which is always against the prosecution and the excuse taken by the I.O. is that generally he remained busy in other case, which is nothing but a false and lame excuse. Reliance in this regard is placed on a case law titled as Om Prakash v. State, 1998 (4) Crimes 227 Delhi.
77.On the contrary, ld. Sr. PP for CBI argued that there was no delay in recording the statement of witnesses and in between there were many other things to be done by the IO for completion of investigation of the case.
78.Ld. counsel for accused further argued that the recovery memo Ex.PW- 12/A is a false and fabricated document because, accused is not a signatory on it. Reliance in this regard is placed on the case of Janardan Sada's (supra). Though PW-12 S.I. Dinesh Kumar talked about signing all the pages of recovery memo in his statement U/s 161 Cr.P.C. however, he is not a witness on page-4 of recovery memo. The name of the person from whom the recovery was effected was mentioned as "Rajesh Kumar" on page-3 of memo Ex.PW-12/A. CBI came with the story that initially accused gave his introduction to Insp. Anil Kumar Singh and Insp. A.K. Singh as "Rajesh Kumar". So, it was so mentioned/recorded in recovery memo. The TLO PW-16 Insp. Naval admitted that at the time of preparation of recovery memo at CBI office, he was aware that the name of accused was "Vijay Kumar". PW-16 Page 43 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 admitted that he did not mention in the recovery memo that accused disclosed his name as "Rajesh Kumar" to Insp. A.K. Singh. He further stated that on being challenged, accused disclosed his name as "Vijay Kumar" at Police Post. It was further argued that during cross of various witnesses, it came on record that the recovery was effected from upper drawer of table of accused but this fact was not mentioned in the recovery memo, because there were three drawer in the table of accused on the left side. He further argued that PW-16 TLO himself falsified the truthfulness of the recovery memo Ex.PW-12/A by saying that Portion B to B-1 and Portion C to C-1, were not correctly recorded.
79.The raid officer PW-16 violated the directions issued by Hon'ble Supreme Court in D.K. Basu's case as I.O. failed to bring on record as to how and in what manner the intimation of arrest of accused was conveyed to his family members and as to whether family of the accused were notified about when and where accused would be produced by the I.O./TLO. Reliance in this regard is placed on a case law titled as D.K. Basu v. State of West Bengal, AIR 1997 (610) SC.
80.On the contrary, ld. Sr. PP for CBI argued that intimation of arrest of accused was given to his immediate controlling officer i.e. SHO as well as to his family members.
81.Ld. counsel for accused further argued that directly or indirectly, complainant PW-10 Sachin Tyagi disowned his complaint Ex.PW-10/C, when he talked about his discussion with CBI officials before lodging complaint regarding involvement of a public servant for using platform of CBI. As already discussed in Roshan Lal Saini's case (Supra) that filling of complaint is not proof of demand. Moreover, CBI initially registered the case U/s 7 P.C. Act, which related to demand of bribe. Mere demand is not an offence and disowning of complaint by the Page 44 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 complainant is enough to shatter the prosecution case.
82.Ld. counsel for accused further argued that the unexplained overwriting beneath the signature of complainant on page-2 of complaint Ex.PW- 10/C, where figure "24" was overwritten talks about delay of 3 days in making complaint, if the date of complaint is taken as 27.12.2017. The only inference which could be taken against the prosecution was that the complaint was made by the complainant on 24th December 2017.
83.Ld. counsel for accused further argued that there is unexplained inordinate delay in sending exhibits to FSL. As a matter of fact, recording Q-1 is dated 27.12.2017, Recording Q-2 is dated 28.12.2017, Recording S-1 is dated 02.01.2018 but the exhibits were sent to FSL only on 27.02.2018. The CBI might come with the excuse that transcript was prepared on 23.02.2018 itself. It is pertinent to mention here that copies of Q-1 & Q-2 were used in the proceedings dated 23.02.2018 and the alleged original recordings were lying with the Malkhana. Reliance in this regard is placed on a case law titled as Jitender @ Jeetu v. State, 2006 (3) JCC 1382 Delhi.
84.On the contrary, ld. Sr. PP for CBI argued that there was no delay in sending exhibits of the case to the CFSL and ld. defence counsel did not lead any evidence to substantiate his arguments in respect of tempering of exhibits.
85.Ld. counsel for accused further argued that the site plan Ex.PW-13/B could not be read in evidence as it was prepared on the statements of witnesses and it was signed by both independent witnesses, which is hit by Sec. 162 Cr.P.C. Reliance in this regard was placed on a case law titled as State of Rajasthan v. Bhawani & Anr. 2003 (3) JCC 1343 SC. He further argued that even otherwise, the site plan Ex.PW-13/B was not as per factual position. The TLO did not show the position of Page 45 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 complainant, wherefrom the signal was allegedly given by the complainant. The photographs Ex.PW-12/D2 to Ex.PW-12/D6 are also enough to disprove the site plan. It is well settled law that the site plan in a criminal case is not merely a formality and it is the back bone of every criminal case. Reliance in this regard was placed on a case law titled as State v. Sunil Kumar @ Sagar @ Rahul & Ors. 2015 (3) LRC 380 Delhi (DB).
86.On the contrary, ld. Sr. PP for CBI argued that in the site plan, spot of trap is clearly specified and the position of team members including complainant, witnesses and the accused was ascertained by Inspr. A.K. Singh/PW17, as the trap team remained outside from the room of the accused, where bribe transaction took place. He further argued that in trap cases, site plan is not as important as in the cases of accident or homicidal.
87.Ld counsel for accused further argued that as per CBI the proceedings regarding Voice Identification and preparation of transcription was done on 23.02.2018. These proceedings are apparently false on the face of record itself, because PW-10 denied hearing any conversation on his visit to CBI and he further denied the suggestion given by CBI. PW-11, Narender showed ignorance about proceedings of voice identification and preparation of transcription. As per PW-13 Sh. Pankaj Chikara, rough transcript was already prepared by Insp. Kamal. As per PW-14 Naveen Sigraha, CBI officer already had a transcript of recording and as per IO PW-24, he prepared transcript in the presence of independent witness and denied suggestion of preparing transcription in advance.
88.Ld. counsel for accused further argued that in the instant case PW-13 Pankaj Chikara was informed on 26.12.2017 about his duty at CBI office on 27.12.2017, whereas PW-14 Sh. Naveen Sigroha was also informed Page 46 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 on 26.12.2017 for his duty at CBI office on 27.12.2017. PW-14 reported CBI office on 27.12.2017 and was asked to come on 28.12.2017. However, as per CBI case the complaint of PW-10 was received on 27.12.2017 and it is difficult to believe that witnesses were informed in advance about the verification proceedings dated 27.12.2017 and about raid dated 28.12.2017. Reliance in this regard is placed on a case law titled as Ashish Kumar Dubey v. State through CBI (supra).
89.Ld. counsel for accused further directed that despite there being provision of presumption U/s 20 of the P.C. Act, concept of "two views theory" is applicable to P.C. Act cases as well. In the present case, the defence brought on record by way of preponderance of probabilities is in favour of accused i.e. Innocence of the accused. This view is in favour of the accused and court should accept this view. Reliance in this regard is placed on a case law titled as State v. K. Narsimhachari, AIR 2006 SC 628 and thus, in the totality of the above circumstances CBI failed to prove its case against the accused beyond reasonable doubts and as such accused is entitled to be acquitted.
90.On the contrary, ld. Sr. PP for CBI argued that the prosecution has proved its case beyond all reasonable doubts by proving the demand, acceptance and recovery of the bribe amount from the accused. Hence this is not the case in which two views can be taken.
91.Ld. counsel for accused further argued that improvements made before court by the witness from his previous statement, such evidence is not safe to rely upon. Reliance in this regard was placed on a case law titled as Vijay Kumar v. State of Rajasthan, 2014 (3) LRC 88 (SC), whereby Supreme Court held that:-
".......This witness PW10 Jaswant Singh was admittedly examined by Investigation Officer during investigation Page 47 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 and in that statement he has not stated the facts which he now for the first time stated before the Trial Court. This raises a serious doubt as to the veracity of the said facts as held in 'Khalil Khan v. State of M.P, (2003) 11 SCC 19'. In other words this witness has made material improvement while deposing in the Court and such evidence cannot be safe to rely upon......"
92.Ld. PP for CBI further argued that CFSL Agency is already notified and further notification u/s 79 A I.T. Act is under process, which may be notified in the due course. He further argued that in Section 79 A of I.T. Act, the word used is 'May' and not 'Shall' by the legislature. The report of CFSL Agency is relevant and expert is well qualified and competent to give the opinion.
93.To substantiate his arguments, ld. Sr. PP for CBI relied upon following case laws :-
● Shamsher Singh Verma v. State of Haryana decided on 24 November, 2015 (4) Crimes 353 (SC);
● State of UP Appellant v. Zakaullah, Respondent, Supreme Court AIR 1998 SC 1474;
● Vinod Kumar v. State of Punjab (supra);
● M. Narsinga Rao v. State of Andhra Pradesh, (supra); ● Hazari Lal v. The State (Delhi Admn.) Supreme Court AIR 1980, SC 873; & ● Smt. Shamim v. State (GNCT of Delhi), (supra).
APPRECIATION OF EVIDENCE AS WELL AS ARGUMENTS :-
Ingredients of Section 7:-
94.Before I look into the evidence and appreciate the arguments, it is appropriate to refer to the requirements to establish a case under Section 7 of the Act. Same may be summarised in following manner :-
Page 48 of 117 (Pulastya Pramachala)Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017
(a) The accused at the time of offence, was or expected to be a public servant;
(b) Accused accepted, or obtained, or agreed to accept or attempted to obtain from some person a gratification;
(c) That such gratification was not legal remuneration due to him;
(d) Accused accepted the gratification in question as a motive or reward for :-
● Doing or for bearing to do any official act; or ● Showing or for bearing to show favour or disfavour to someone in the exercise of his official functions; or rendering or attempting to render any service, disservice to someone, with the Central Government or any State Government or Parliament or the Legislature of any State or with any public servant.
95.As far as first requirement is concerned, there is no dispute to the fact that at the time of commission of alleged offence, accused was working as Sub Inspector in Delhi Police and was posted in police station Krishna Nagar. Therefore, accused was a public servant at the relevant time.
96. For the purpose of second requirement, prosecution has to establish that there was demand from the side of accused regarding a gratification and he accepted or obtained or agreed to accept or attempted to obtain such gratification from the complainant Sh. Sachin Tyagi i.e. PW10. Defence has challenged the evidence of prosecution, to say that prosecution failed to prove demand for gratification. As per argument of defence, PW10 i.e. complainant and his friend Sh. Narender i.e. PW11 were the only witnesses of the prosecution to prove demand as well as acceptance. According to defence, neither demand nor acceptance were proved because complainant had turned hostile and PW11 was neither reliable nor did he come up with concrete particulars of such demand.
Page 49 of 117 (Pulastya Pramachala)Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 Demand:-
97.As far as demand is concerned, there is no doubt that complainant i.e. PW10 and his friend PW11 were the prime witnesses of prosecution to prove such fact. It is matter of record that complainant PW10 was declared hostile by prosecution, because he did not depose strictly in terms of his previous statement given before CBI officials. On perusal of testimony of PW10, I do find that PW10 came up with some twisted facts in his testimony as compared to complaint made by him to CBI. However, PW10 did depose that he approached CBI on the advise of PW11 to make complaint against Sh. Rajesh Khanna (PW9) and accused on 27.12.2017. On that day, he met SP, ACB Branch and he gave a complaint in writing. That complaint was proved by him as Ex.PW10/C. He further deposed that he had written this complaint at same place and he wanted to make complaint against PW9 also, but the said SP told him that he (SP) could not do anything against PW9, because PW9 was a civilian. The complaint was in the handwriting of PW10.
98.In the complaint, PW10 alleged that some unauthorized constructions were going on in Shanti Mohalla and he had made complaints to EDMC against those unauthorized constructions. Accused along with his friends (several names mentioned including name of PW9) were partners in such unauthorized constructions and all of them were putting pressure upon him. Under their pressure, complainant had withdrawn his complaint from EDMC. Still, pressure was being exerted upon him through his friend Sh. Narender (PW11), so as to withdraw another police complaint made by complainant at 100 number and also to pay bribe of Rs.5 lac. Complainant was threatened that accused would falsely implicate him in the case of extortion. On 24.12.2017, Sh.
Page 50 of 117 (Pulastya Pramachala)Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 Narender (PW11) came to complainant and told him that accused would resolve such matter against consideration of Rs.2 lac. Complainant alleged that he did not want to pay bribe of Rs.2 lac to the accused, hence, action be taken against him.
99.During his testimony before the court, PW10 deposed that he had made complaint to CBI against accused, because he was put under pressure to compensate PW9 for the loss suffered by him, due to complaints made by complainant. PW10 further deposed that such pressure was put upon him by his friend Sh. Narender (PW11), who informed him that several other persons had made complaints against PW10 in PS Krishna Nagar and if PW10 did not withdraw his complaint made to EDMC, then those persons would lodge case of extortion against him. PW10 asked PW11 to visit police station and to see how the matter could be resolved. PW11 informed him that he had talked in police station and as per that talk PW10 had to pay Rs.2 lac to PW9/Sh. Rajesh Khanna, he had to withdraw his complaint and he had to resign from the presidentship of Balaji Mandal Resident Welfare Association.
100.PW10 further deposed that PW9 and some other persons had physically assaulted him on 19.11.2017 and he had made call on 100 number. He also visited PS Krishna Nagar and he went to SDN hospital with PW11 for his medical examination. On 20.11.2017, PW10 and PW11 went to PS Krishna Nagar to make inquiry about call given by him to police regarding incident of physical assault. When PW10 was called inside SHO room, accused also came in that room and started scolding him that PW10 was making complaint and was indulging in extortion. PW9 had also come along with accused and accused asked PW10 and PW9 to sort out their matter. Accused further told PW10 that PW10 had caused loss to PW9 and those persons had given beatings to him.
Page 51 of 117 (Pulastya Pramachala)Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 Accused also told him that he would lodge both of them in the jail, else they should settle their dispute with each other. On 29.11.2017, PW11 told PW10 that the aforesaid persons had made complaints against him in PS Krishna Nagar with allegations of extortion of money. Then PW10 asked PW11 to visit PS and to find out the ways to resolve this issue. Thereafter, PW11 told PW10 about requirement to pay Rs.2 lac and to withdraw his complaint regarding physical assault, only then the complaints against him would be closed.
101.According to PW10, his friend Sh. Narender i.e. PW11 used to visit PS Krishna Nagar to negotiate and PW11 had told PW10 that he had negotiated with accused and PW10 had to pay final amount of Rs.1.5 lacs. On 26.12.2017, accused had sent a notice to PW10 under Section 41 Cr.P.C i.e. Ex.PW5/A. PW10 was informed about this notice by his father telephonically and thereafter, PW10 rang PW11 to ask how could this notice be sent to him, when PW10 had already talked for a settlement. Thereafter, PW11 advised him to approach CBI. Accused did not dispute the factum of sending notice to PW10.
102.PW10 further testified about meeting SI Dinesh Kumar (PW12). He also testified about a team reaching Seelampur Petrol Pump under leadership of SI Dinesh Kumar. SI Dinesh asked PW10 and PW11 to go to police post and talk to accused and accordingly, PW10 and PW11 went to police post. Prior to that, when that team had reached Petrol Pump, a telephonic talk had taken place between PW11 and accused. On the way, PW11 told PW10 that first of all PW11 would go inside the police post and thereafter, he would call PW10. Accordingly, PW11 went inside the police post and after 5-7 minutes he telephonically called PW10 to come inside. PW10 also went inside the police post and met accused along with PW11. They had talk and beside other things Page 52 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 accused told PW10 that since PW10 had caused loss to PW9, therefore, he had to compensate him. Accused and PW10 had personal talk also and they realised that they were native of nearby places. Accused reduced the amount from Rs.1.5 lac to Rs.1.2 lac. PW10 was asked to pay accused Rs.1.2 lac and accused told him that PW9 would come along with other complainants and all of them would give in writing regarding the settlement. PW10 sought time up to next day to bring the amount of Rs.1.2 lac. Accused asked him to come at around 11 AM, but PW10 asked for time of 01:00 PM, to which accused agreed. Thereafter, PW10 along with PW11 went back to petrol pump, where CBI team was waiting. PW11 was having one instrument to record the voice and PW10 came to know about the same, when they were going to police post from petrol pump. After returning back, PW11 handed over that instrument to CBI officer and CBI officer switched off that instrument. Thereafter, all of them came back to CBI office.
103.The aforesaid testimony of PW10 related to the demands made before trap proceedings. On perusal of cross-examination of PW10 by defence, I find that there is no dispute raised from the side of defence regarding aforesaid meeting between PW10, PW11 and accused on 27.12.2017. The only dispute was raised by defence that PW10 did not meet accused prior to 27.12.2017. Thus, the aforesaid meeting between the parties, which had taken place as part of verification proceedings conducted by SI Dinesh (PW12), was not challenged by the defence. I would discuss the exact talk between the parties in the later part of the judgment, i.e. after discussing the relevant part of testimony of PW11, PW12 and PW13. However, on the basis of undisputed part of testimony of PW10, it is at least established that PW10 had been voluntarily using PW11 to negotiate on his behalf, for the purpose of closure of complaints Page 53 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 of extortion made against PW10 by various persons. It has also remained unchallenged testimony of PW10 that in the meeting between the parties, which took place on 27.12.2017, PW10, PW11 and accused had talk about amount to be paid by PW10 and that accused reduced the amount from Rs.1.5 lac to Rs.1.2 lac and asked PW10 to pay Rs.1.2 lac to him. It is also unchallenged testimony of PW10 that PW11 was having some recording device with him in switched on mode during such meeting and such device was taken back by CBI officer, when PW10 and PW11 reached back to petrol pump. At that time, CBI officer switched off that instrument.
104.In his testimony, PW11/Sh. Narender also mentioned about getting a telephonic call from PW10 regarding incident of physical assault with Sh. Sachin Tyagi/PW10. He also mentioned about visiting hospital for medical examination of PW10 and thereafter, visiting PS Krishna Nagar. He also mentioned about accused meeting them in police station with PW9 and the threats given by accused to put PW10 and PW11 behind bars, else they should compromise with PW9. PW11 further deposed that PW10 had told him about complaints made by PW9 and other persons of market against PW10 in PS. PW11 assured PW10 that he would talk to PW9. PW11 persuaded PW9 not to have dispute with PW10. PW9 informed PW11 that all those matters were pending with accused and on request of PW11, PW9 took him to accused on 24.12.2017 in the police post old Seelampur. At that time, accused told PW11 that PW10 had caused loss to PW9 by getting his property demolished and sealed and if PW10 settled the matter with PW9, then he would close the matter. Later on, accused telephonically made contact with PW11 to enquire about stand of PW10 and he also told PW11 that otherwise he would send notice to PW10. On 26.12.2017, Page 54 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 PW11 again received telephonic call from accused and accused informed PW11 that he had sent notice to PW10. Thereafter, PW11 telephonically informed PW10 that accused had sent notice to him.
105.PW11 also mentioned in his testimony that during initial visit to accused along with PW9, accused had demanded Rs.5 lac to close the matter and PW11 had communicated that demand to PW10. After information of notice being sent to PW10, PW10 showed his anxiety as to arrange Rs.5 lac and to meet the demand and this had so happened on 26.12.2017. In that evening PW10 met PW11 and asked for solution. At that time PW10 suggested PW11 to approach CBI and accordingly they approached CBI next morning.
106.PW11 gave some more details of verification process, deposing that SI Dinesh/PW12 had called a witness from Doordarshan namely Sh. Pankaj Chikara (PW13). PW13 was also explained the complaint of PW10 and purpose of recording. At that time, PW11 had also signed on the complaint i.e. Ex.PW10/C. PW12/SI Dinesh produced one recorder and took out new memory card. That memory card was put in the recorder and PW13 was asked to speak. PW13 said something, which was recorded and thereafter the recorder was put off and given to PW13. All of them had reached petrol pump, Seelampur and PW12 asked PW11 to make telephonic call to the accused. PW12 had also explained to PW11 that telephonic talk with accused was to be recorded and hence he asked PW11 to put his phone on speaker mode, while talking to the accused. PW11 had telephonic conversation with accused at that place, which was recorded by PW12 in that recorder. Thereafter, PW10 and PW11 went to police post. Prior to that, PW12 put that recorder in left pocket of jacket of PW11 in switched on mode. PW12 also instructed PW13 to follow PW10 and PW11 and to see where were Page 55 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 they going. At police post, PW11 asked PW10 to wait outside and he went inside. PW11 had talk with accused and he bargained with accused. Accused finally asked to give Rs.1.2 lac to him for closing nine complaints against PW10. Thereafter, with permission of accused, PW10 was called inside telephonically and once again conversation took place. Accused had again demanded Rs.2 lac, but during that talk accused and PW10 came to know that they belonged to nearby places and finally amount was settled at Rs.1.2 lac again. Time of 01:00 PM on next day was fixed for the purpose of this payment. Thereafter PW10 and PW11 came out of police post. PW13 was standing outside the police post and all of them went back to petrol pump. PW12 switched off the recorder and kept it with him. Thereafter, all of them went back to CBI office. In CBI office they heard the recording and PW12 noted down something out of that conversation.
107.PW12/SI Dinesh Kumar and PW13/Sh. Pankaj Chikara also deposed almost on the similar lines regarding aforesaid verification proceedings and regarding recording of telephonic conversation between PW11 and accused. They also affirmed the fact that a DVR was handed over to PW11 in switched on mode to record their conversation with accused, before PW10 and PW11 left for police post to meet accused. PW13 also affirmed that after coming back to CBI office, PW12 played DVR and they heard some important parts of the recording regarding transaction of money. As per that conversation, some bargain had taken place to bring the amount of Rs.2 lacs to Rs.1.2 lac. PW13 also deposed that PW12 had prepared some transcripts of important part of recorded conversation and thereafter, he prepared memo regarding the verification process. Same was given to all to read and to sign the same and all four of them had signed the same. The verification process Page 56 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 memo was identified to be Ex.PW11/A.
108.Aforesaid description of testimony of PW10 to PW13, refer to recording of conversations between PW11 and accused on telephone and their subsequent conversation taken place at the police post. These conversations were recorded in memory card Q1 and a transcript of the same was proved on the record as Ex.PW11/C. During examination of PW11, those recordings were played before the court using the original source i.e. the memory card Q1 and PW11 after hearing the recorded conversations affirmed that same conversation had taken place between him and accused on 27.12.17. He also identified his voice as well as voice of the accused in the recorded conversation. This recorded conversation is part of Ex. PW11/C under head of file no. 171227 1626. He also heard another file with description of 171227 1633 and affirmed that this was also recording of same conversation, which took place between him, Sachin Tyagi (PW10) and accused on 27.12.17. Once again he identified voice of respective persons as per transcript i.e. last part of Ex. PW11/C. The recorded conversations were also found in consonance with aforesaid transcripts.
109.According to defence counsel, CBI failed to prove initial demand i.e. demand before lodging complaint, demand made on 27.12.18 as well as demand allegedly made on 28.12.17 during trap proceedings. The dispute related to initial demand before lodging the complaint, was raised on account of the fact that the verification memo Ex. PW11/A as well as the complaint made by PW10 to CBI i.e. E.x PW10/C, referred to demand of Rs. 5 lacs and thereafter, another amount of Rs. 2 lacs being demanded by accused. It is case of prosecution itself that prior to verification proceedings i.e. meeting of PW10 and PW11 with the accused, such demands were not conveyed directly to the PW-
Page 57 of 117 (Pulastya Pramachala)Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 10/complainant by the accused. Rather, PW11 was the middle man between complainant and accused, through whom such demands were being conveyed.
110.PW12 (verification officer), PW16 (TLO) and PW24 (IO) in their examination in chief did not say anything about any investigation conducted regarding date of the initial demand of Rs. 5 lacs. IO in his cross-examination by defence deposed that he asked complainant about date of demand of Rs. 5 lacs if conveyed to him by PW11, but complainant told him that demand of Rs. 5 lacs was not conveyed to him by Narender. He further deposed that allegations of demand of Rs. 5 lacs was not confirmed because of omission to provide date of such demand or the particular of person conveying such demand. PW16 also in his cross-examination by defence, deposed that he did not ask complainant or Narender about date of demand of Rs. 5 lacs or demand of Rs. 2 lacs. PW12 deposed in his cross-examination by defence that he asked PW11 regarding date of demand of Rs. 5 lacs and PW11 told him about one date, but he did not remember the same, nor did he note down that date.
111.PW11 was the person to convey the complainant about the demands of the accused. He deposed that demand of Rs. 5 lacs was made by accused when he visited him alongwith PW9 on 24.12.17 and he conveyed the same to PW10. It is apparent that the demand of Rs. 5 lacs, even if made, was not projected very forcefully by PW10 or PW11. Therefore, I do not find such demand to be very important one. The complaint finally referred to demand of Rs. 2 lacs and as per testimony of PW10, this was the amount finally conveyed to him as demand of accused to dispose off complaints against him. It is also worth to see that as per testimony of PW10, there were further bargaining over the Page 58 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 amount, which finally reached to Rs. 1.2 lacs. Thus, the whole case of prosecution is based on demand of Rs. 1.2 lacs, rather than Rs. 5 lacs. Therefore, it is worth to look into the evidence related to demand of Rs. 1.2 lacs and the evidence related to bargaining.
112.As already observed by me herein above, during examination of PW10, defence did not challenge his testimony to the fact that on 27.12.17, a meeting had taken place between PW10, PW11 and the accused in Old Seelampur Police Post and that in that meeting, accused bargained over the amount to be paid by PW10 and he reduced the amount from Rs. 1.5 lacs to Rs. 1.2 lacs and asked PW10 to pay Rs. 1.2 lacs to him. Though, in his statement u/s 313 Cr.P.C., in response to relevant questions pertaining to aforesaid meeting, accused took plea that such evidence were incorrect. However, such plea in absence of any stand taken during cross-examination of these witnesses, is insignificant. This much of unrebutted fact as testified by PW10, is further corroborated with the similarly kind of testimony given by PW11 regarding their talk with accused on 27.12.17. PW11 further deposed about the purpose of such demand, as to close nine complaints against PW10 by the accused. It is further unrebutted fact emerging out of the testimony of PW10 and PW11 that time of 1 pm., on next day i.e. 28.12.17 was agreed between the parties including accused for the purpose of such payment.
113.Thus, the testimony of PW10 and PW11 do make out an established case of final demand of Rs. 1.2 lacs being made by the accused on 27.12.17, for the purpose of closing the complaints, received from various persons including PW9, against the complainant/PW10. Such demand of accused is also sought to be proved by prosecution on the basis of recorded conversations. The recorded conversations in memory card Q1, pertained to meeting of PW11 and accused, which was Page 59 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 subsequently joined by PW10 on 27.12.17. The recorded conversations in memory card Q2, pertained to meeting of PW10, PW11 and accused on 28.12.17, when a trap was laid by CBI. Therefore, it is also worth to look into such evidence.
Recorded conversation:-
114.Ld. defence counsel challenged the evidence related to recorded conversations and specimen voice of accused for their examination by senior scientific officer in CFSL for the purpose of voice identification of the accused. Questions were also raised regarding possibility of tampering of these exhibits. Ld. counsel referred to a number of case laws, and his arguments have already been mentioned by me under the head of arguments.
115.In the case of State of Rajashthan v. Daulat Ram (supra), Supreme Court was dealing with the allegations of recovery of opium from the accused. The said opium was seized by police and samples of the same were sent to the public analyst for examination. Supreme Court found that such samples had exchanged several hands, but all those persons were not examined by prosecution, so as to prove that the samples remained intact with their seal in the possession of respective persons.
116.While appreciating the passage of opium upto public analyst, in a case for offence under Section 9 (A) of the Opium Act, it was necessary to ensure that the alleged samples of opium were the same samples, which were taken from the opium recovered from the accused. The finding of public analyst was important to know if such samples had the constituents of opium. The chances of substituting the original samples with a planted sample had to be ruled out, because guilt of the accused was much dependent upon examination of authentic sample of opium.
117.However in the present case, the exhibits which were sent to CFSL for Page 60 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 examination, were sent for the purpose of having a corroborative piece of evidence. Memory cards containing recorded conversations i.e. Q1, Q2 & memory card containing specimen voice of accused i.e. S1 as well as the DVR used for the purpose of such recordings, were sent to Physics department of the CFSL. Two bottles of alleged hand washes of the accused were also sent to Chemistry department of CFSL. These exhibits were different in nature than a sample of opium. Different kind of precautions were taken to establish authenticity of the memory cards and DVR and the bottles of hand washes. Therefore, this court has to look into the credibility of such precautions taken by CBI and authenticity of these exhibits, which reached CFSL for examination, on the basis of appreciation of evidence in that regard. The observations made by Supreme Court in the aforesaid case of Daulat Ram, cannot be applied mechanically in this case. The finding has to be given on the basis of appreciation of evidence of this case.
118.In this case, Memory card Q1 was produced before the court during examination of PW11 for the first time. It was produced in a sealed parcel having seal of CFSL, CBI NEW DELHI SSO II PHY A.K. Packet of memory was kept in an envelope, which was received in open condition with broken seal of SINGARSAL SSO II CFSL CBI NEW DELHI PHOTO DIVISION. There were endorsement of photo division of CFSL, CBI, New Delhi on this envelope. Two different CFSL numbers as pertaining to forensic voice examination report (Ex.PW22/A) and another number pertaining to report of examination and preparation of copies of the contents of memory cards (Ex.PW20/A), were also mentioned on this envelope. From this envelope another brown envelope bearing particulars of this case was taken out in open condition, which bore stamp of malkhana CBI ACB NEW DELHI with particulars of this case Page 61 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 and endorsement of Q1 in CO-73/17 dated 27.12.17. This envelope was having broken seal of CBI ACB, ND 43/2017. On the back of this envelope also aforesaid two CFSL numbers were mentioned.
119.This envelope (Ex.Article/PW11/2) was signed by PW11 besides others. From this envelope, the memory card Q1 (Ex.Article/PW11/4) was taken out in its packing (Ex.Article/PW11/3) and this packing as well as memory card were also signed by PW11 besides others.
120.PW10 in his testimony deposed that he alongwith Narender had signed cover of memory card of the instrument carried by Narender on 27.12.17. He also stated that memory card was put in an envelope and same was sealed and seal was probably applied on some papers also.
As explained herein before, PW10 had not deposed strictly in terms of his previous statements and was declared hostile as well by the prosecution. However, during his cross-examination, he admitted that he mentioned date beneath his signature over documents signed by him and he had written the date out of his free will. He also admitted that the memory card was taken out from the DVR and was kept in the plastic cover, which was signed by him, Narender and others. He was confronted with envelope containing the packet of memory card Q2 and he identified his signature over the last envelope bearing stamp of malkhana of CBI and containing packet of memory card. He also identified his signature on the company packet as well as plastic cover of the memory card. He was not cross-examined on any of these aspects by the defence counsel.
121.When the parcel of Q2 was produced during examination of PW10, that parcel was sealed with the seal of SSO II PHY CFSL CBI NEW DELHI AK. Particulars of the case with CFSL no. 2018/P-196 was mentioned on that parcel with endorsement of Q2/Ex. Q2. That parcel was opened Page 62 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 before the court and a white envelope was taken out in open condition. This envelope was having broken seal of PHOTO DIVISION CFSL CBI NEW DELHI SINGARSAL SSO I. This envelope also mentioned particulars of this case with two CFSL numbers as mentioned herein above in respect of Q1. This envelope contained one brown envelope in open condition. This envelope was having seal of CBI ND ACB 43/2017 and aforesaid two CFSL numbers were also mentioned over this envelope. Endorsement of Q2 with date of 28.12.17 was also mentioned alongwith stamp of malkhana CBI. The brown envelope contained one packet of SD card and aforesaid two CFSL numbers with particulars of this case were also found thereupon. The cover contained another plastic cover and both CFSL numbers as well as Ex. Q2 were also found mentioned thereupon. That plastic cover contained a memory card.
122.PW11 deposed that after going back to CBI office on 27.12.17, they heard the recording in the DVR and SI Dinesh (PW12) had noted down something out of that conversation as well. He further deposed that on 28.12.17 also after coming back to CBI office, recorded conversation was played before all of them and once again PW12 had noted down the conversation. Memory card of recorder was also taken out by PW 12 and same was kept in original packing. Their signature was also taken on the same. He also deposed that on 27.12.17 and 28.12.17 memory cards were sealed after obtaining their signatures on the memory cards. During production of parcel of memory card Q2, PW11 also identified his signature appearing on the last envelope (Ex.Article/PW11/6) with stamp of malkhana CBI and particulars of this case. He also identified his signature on cover and the plastic cover of memory card Q2.
123.As per testimony of PW12, on 27.12.17 he took out memory card from the DVR wherein conversation was recorded. He wrote exhibit Q1 on the Page 63 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 packing and signed over the same. He also obtained signature of PW10, PW11 and PW13 over the same. Thereafter, he put that packing inside a brown envelope and wrote 'Q1 in CO 73/2017' over that envelope with date of 27.12.17. Thereafter, he sealed that envelope with seal of CBI and handed over that CBI seal as well as DVR to PW13, with direction to produce the same before TLO next day. PW12 identified his signature over that brown envelope, packing of memory card Q1 and plastic cover containing the Q1.
124.Before this witness a parcel with endorsement of DVR with endorsement of CFSL no. 2018/P-196 and particulars of this case was also produced. This parcel was sealed with seal of SSO II PHY CFSL CBI NEW DELHI AK. The parcel was opened and a brown colour of envelope was taken out in open condition. This envelope was having broken seal of CBI ACB ND 43/2017 and was bearing particulars of this case with stamp of malkhana CBI. This witness identified his writing over this envelope. One black colour DVR (Ex.Article/PW12/1) was taken out from this envelope. Witness identified signature of PW16 over this DVR and also identified this DVR to be the same which was used during verification process as well as during trap proceedings. No dispute was raised over his signature on these articles.
125.Same facts were deposed by PW13 in respect of taking out of memory card from DVR, it's sealing in a brown envelope and signature being put by all of them. PW13 also deposed that impression of same seal was also taken on plain sheet using ink as well as lak. PW13 also identified his signature over brown envelope, packing of Q1 and plastic cover of Q1. He also deposed that seal and DVR was handed over to him by PW12 with direction to bring them on next day. PW13 also heard recording in memory card Q1 before the court and identified his voice, Page 64 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 which correctly matched with the transcript Ex. PW11/C under head of file no. 171227 501.
126.As per testimony of PW16, on 02.01.18 he produced accused before the court and moved application for direction to the accused to give his specimen voice sample. Accused agreed for the same voluntarily before the court and he was accordingly produced before expert in CFSL New Delhi for this purpose. As per demand of CFSL officials, two independent witnesses were called from CBI office to join the proceedings of taking sample voice. Expert in CFSL took voice sample of accused on same day in the presence of independent witnesses. For this purpose, PW16 had produced one new memory card before the expert. This was opened before independent witnesses. First of all introductory voice of both independent witnesses were recorded in that memory card through DVR and thereafter, introductory voice of accused was recorded. Accused was also asked to read the sentences from the text prepared by PW16. Thereafter, concluding voice of both witnesses were also recorded in that memory card. Memory card was taken out from DVR and was kept in it's packing and cover. The cover was kept in an envelope and envelope was sealed. S1 was endorsed on the envelope as well as on the packing of memory card. The envelope, plastic packing and cover of memory card were signed by PW16, both independent witnesses and both experts from CFSL as well as accused. He had also prepared a memorandum of process of taking specimen voice sample, which was also signed by aforesaid persons.
127.During examination of PW16, a parcel with CFSL endorsement of Parcel S1/Ex. S1 was produced. This parcel was found sealed with seal of SSO II PHY CFSL CBI NEW DELHI A.K. Same was opened and two parcels were taken out from the same. These two parcels were in open Page 65 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 condition. One of the parcel was having endorsement of CFSL 2018/E- 0033 & CFSL-2018/P-196, with particulars of this case. Exhibit S1 was also endorsed on the same. Seal of CFSL PHOTO DIVISION CBI NEW DELHI S.INGARSAL SSO I appeared on this parcel. This parcel was treated as parcel no. 1 by the court.
128.Another parcel contained endorsement of specimen voice recording of Sh. Vijay Kumar with reference to this case number and date of 02.01.18. S1 as well as stamp of Malkhana CBI was also appearing on the same. CFSL no. 2018/P-196 Exhibit S1 was also endorsed on the same. Seal of CBI ACB ND 49/2017 also appeared on the back side of the same. CFSL 2018/E-0033 and Exhibit S1 was also written on the back side of this parcel. This parcel was treated as parcel no. 2 by the court.
129.Parcel no. 1 was empty. Parcel no. 2 contained memory card in it's original cover. PW16 identified his signature on this parcel as well as on the plastic cover of the memory card. The memory card S1 (Ex.Article/PW16/4) was taken out from this packet.
130.PW18 Sh. Arun Gupta was Sr. Scientific Assistant in Physics Division CFSL New Delhi. As per his testimony on 02.01.18, he was assigned request letter of CBI with copy of court's order to record specimen voice of accused. At about 4.30 p.m., Insp. Naval (PW16) came alongwith two independent witnesses, who were introduced to him. Mr. Thapliyal and Mr. Samiel were those independent witnesses. He was being assisted by Mr. Sunil Kumar, Lab Assistant. Mr. Sunil Kumar brought a DVR and PW16 produced a brand new memory card. Accused was also produced by PW16. The packet of memory card was shown to everyone by him and thereafter, it was opened in front of all. Memory card was put in the DVR and thereafter, it was played before all to show and to ensure that it Page 66 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 was empty. Accused and witnesses signed some forms. Thereafter, both independent witnesses were asked to read that form, which was signed by them and same was recorded in that memory card. Thereafter, accused was also asked to read that form which was signed by him and same was also recorded in that memory card. Thereafter, photocopy of transcript given by IO was handed over to the accused and he was asked to read the same. This was also recorded in that memory card. Thereafter, concluding remarks from both independent witnesses were recorded and the witnesses signed the second part of the form thereafter. DVR was played before both independent witnesses and accused and they heard the recordings. Thereafter, DVR was switched off and memory card was taken out. Memory card was kept in it's original packing and thereafter it was kept in an envelope. That envelope was marked as S1. The packing of memory card as well as envelope were signed by PW18, Mr. Sunil Kumar, both independent witnesses, accused and Insp. Nawal. PW 16 had produced seal of CBI and that envelope was sealed with that seal. PW16 prepared a memo of this proceeding, which was signed by all six persons. Ink impression of the seal was also taken on this memo. That seal was handed over to Mr. Thapliyal to produce it whenever it was required. One copy of memo was handed over to him and envelope of memory card was taken by IO/PW16.
131.This witness identified his signature on parcel 2 (Ex. Article/PW16/4) of memory card S1. He also identified signature of Mr. Sunil Kumar (Lab Assistant). He also identified his signature and signature of Sh. Sunil Kumar over packet of memory card and plastic cover of the memory card. He identified his signature over memo Ex. PW16/A. He produced the forms, which were filled up by both independent witnesses and the accused. Copy of the same were exhibited as Ex. PW18/A to Ex.
Page 67 of 117 (Pulastya Pramachala)Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 PW18/C. He also identified the accused as the same person who had given the specimen voice. He denied the suggestion that specimen voice of accused was not recorded in his presence or that such specimen voice was already brought by PW16 and handed over to him. He also denied the suggestion that he added recording of introductory and concluding voices of independent witnesses in the same. He stated that he had not given any instructions to PW16 regarding text to be read by the accused.
132.PW19 Sh. Lalit Kumar Thapliyal was one of the independent witnesses, who was joined on 02.01.18 during proceedings of taking specimen voice of the accused. He also deposed that on that day, he was taken by Insp. Naval alongwith one more witness namely Mr. Samiuel to forensic science lab in CGO Complex, for the purpose of recording specimen voice of the accused. He identified the accused in the court as the same person, who was taken for taking specimen voice sample. He also deposed that a new memory card was opened in the presence of all in the FSL. Forms were given to both witnesses to fill and sign. The contents of forms were read over by them, which were recorded in that memory card using a DVR. After recording their introductory voices, voice of accused was recorded and he was given some text to read. Lastly, second part of the forms were read by both independent witnesses which was also recorded. After conclusion of recording, memory card was taken out and same was put in it's original packing and packing was signed by all 6 persons including him. Packing was kept in an envelope and envelope was sealed with seal of CBI. Envelope was also signed by all 6 of them and seal was handed over to him with instructions to produce the same before the court or whenever so asked. He identified his signatures on parcel 2 i.e. Ex. Article/PW16/4, packet of Page 68 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 memory card S1 and plastic cover of memory card. He also identified his signature on the memo prepared by PW16 regarding this proceeding. He produced the seal before the court, which was taken on record. The seal was having mark as CBI ND ACB 49/2017. In his cross-examination by defence, he was simply given suggestion that no such proceedings had taken place in his presence or that he signed all the documents in CBI office, which was denied by him.
133.PW20 Sh. S. Ingarsal was Sr. Scientific Officer in Photo Division of CFSL New Delhi. As per his testimony, on 09.01.18, he had received a letter from SP ACB, CBI alongwith specimen seal impression of CBI and three sealed envelopes. Those envelopes were sealed with the seal of CBI and the seal on envelope as well as specimen seal were found to be the same. Those three envelopes were found to be intact, which were marked Q1, Q2 and S1. He opened all those three parcels. Each parcel contained one micro SD card. He prepared four copies of each SD Card on CDs. He signed on each memory card. Thereafter, he kept back memory cards in their respective packings and envelope. The envelope was kept in a new parcel and that parcel was sealed with the seal of S.INGARSAL SSO I PHOTO DIVISION CFSL CBI NEW DELHI. He signed over each parcel and also made endorsement of respective CFSL case numbers and name of exhibit on those parcels. This witness identified his signatures over parcels 1 & 2 of S1. He also identified his signature and endorsement on the back side of packet of memory card S1, plastic cover (Ex.Article/PW16/2) of memory card S1 and his signature on the memory card S1 (Ex.Article/PW16/3). Similarly, on production, this witness identified his signature with his endorsement over white envelope (Ex.Article/PW20/2). He also identified his signature with his endorsement over brown envelope (Ex.Article/PW11/2). He also Page 69 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 identified his signature with his endorsement over packet of memory card (Ex.Article/PW11/3), plastic cover of memory card (Ex.Article/PW11/4) and his signature on memory card Q1. Similarly, he identified his signature and endorsement on white envelope, brown envelope, packet of memory card, plastic cover of memory card and memory card Q2.
134.PW22 Sh. Amitosh Kumar was Sr. Scientific Officer in Physics department of CFSL New Delhi. As per his testimony, he had received a letter from CBI alongwith four sealed parcels and two sheets of specimen seal and a set of transcript (22 pages). He had conducted examination for comparing and identifying the questioned voice and the specimen voice and examination to detect any kind of tampering/editing. The four sealed parcels were found having same seals as per specimen sheets. He opened all those parcels. Those parcels were already marked Q1, Q2, S1 and DVR. Q1, Q2 and S1 contained a micro SD card each and fourth parcel contained a DVR. After conclusion of his examination, he had initialed the exhibits and had signed over the envelopes containing aforesaid exhibits. Thereafter, all the exhibits were put in separate parcels alongwith their original parcels. He had sealed his parcel with seal of AK SSO II PHY CFSL CBI ND. On production of all these parcels, this witness also identified his signatures on the first parcel of Q1, Q2, S1 as well as DVR. He also identified his endorsement and signatures on the envelopes, packing cover of memory card, plastic cover of memory card and all these memory cards. He also identified his endorsement and signature on the envelope containing DVR as well as his initials on both sides of DVR (Ex. Article/PW12/1).
135.On careful and overall reading of testimony of aforesaid witnesses, I find that it is duly established that after verification team came back to Page 70 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 CBI office on 27.12.17, PW12 had taken out memory card Q1 from the DVR and this memory card was kept in sealed condition, after obtaining signature of present witnesses at that time on the packing of memory card as well as on sealed envelope. This envelope was seized by PW16 on 28.12.17. Thereafter, memory card Q2 was also sealed in similar manner on 28.12.17, after obtaining signature of independent witnesses as well as PW10 and PW11. Seal was handed over to PW13 on 27.12.17 and PW13 handed over the same to PW16 on 28.12.17. After sealing the envelope of Q2 and DVR on 28.12.17, this seal was once again handed over to PW14 by PW16. PW14 had produced that seal having mark as CBI ACB ND 43/2017 before the court, which was taken on record. From the cross-examination of these witnesses, nothing has emerged on the record to suggest that so much of items were signed by all of these witnesses subsequently at a later date or the seal was ever given back to any CBI officer by PW13 and PW14. Therefore, there is no reason for me to have doubt over the consistent testimony of aforesaid witnesses regarding sealing of all these exhibits i.e. Q1, Q2, S1 and DVR.
136.All aforesaid three memory cards i.e. Q1, Q2 and S1 were sent to CFSL New Delhi, for the purpose of preparing copies of the same, which was so done by PW20. Obviously PW20 was not in possession of seal with which the envelopes were sealed earlier. His report Ex. PW20/A mentions description of same seal in respect of Q1, Q2, which was produced by PW14 before this court and the same seal in respect of S1, which was produced before this court by PW19. His report mentions that all the seals were intact. After preparing copies, PW20 put the packing of memory card in same brown envelope and thereafter, that envelope was put in another envelope and this envelope was sealed by PW20 with his Page 71 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 own seal. His seal has been already mentioned herein above.
137.Thereafter, this envelope was deposited back in malkhana and then sent to CFSL Physics department for forensic voice examination. Report of PW22 once again confirms that the envelope received by him was bearing intact seal of PW20. His report also mentions that DVR was also received with seal of CBI, (which was so produced before the court by PW14). After conducting his own examination, PW22 adopted the same procedure and after keeping all the exhibits in their respective packing and envelopes, he finally sealed the parcel with his seal and the same seal was found over such parcels, during their production before the court. In these circumstances, I do not find any scope of manipulating the exhibits/case properties i.e. Q1, Q2, S1 and DVR.
138.Now coming to the question of admissibility of report given by PW22 in view of Section 79 A of I.T. Act, I would look into the relevant law provisions in this regard. Section 79 A of I.T. Act was enacted in the year 2000, which came into force w.e.f. 17.10.2000. This provision provides that the Central Government may for the purposes of providing expert opinion on electronic form evidence, specify, by notification, any department, body or agency as an examiner of electronic evidence.
139.The said provision is directory and not mandatory because it is an option for the Central Government to notify any agency as expert for providing expert opinion on electronic evidence. This provision or provision u/s 45 A Evidence Act does not say that in absence of such notification, opinion based on scientific examination given by a person well versed or skilled in such science, cannot be admissible in evidence. Unless such bar is created in law, it cannot be read as an extension of section 79 A of I.T. Act that the report given by any other body/lab shall be inadmissible in evidence.
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140.Madras High Court in the case of K. Ramajayam v. Inspector of Police, Chennai reported in 2016 Cr.LJ 1542, facing similar kind of situation observed that-
"It is axiomatic that the opinion of an expert, which is relevant under Section 45 of the Indian Evidence Act, 1872, when accepted by the Court graduates into the opinion of the Court. The Central Government has not yet issued notification under Section 79A of the Information Technology Act, 2000 on account of which Section 45A of the Indian Evidence Act, 1872 remains mute. Therefore, the methods evolved by Kala (PW-23) and Pushparani (PW-24), Scientific Officers of the Tamil Nadu Forensic Sciences Department to analyze and give their opinions on the electronic data, are correct and cannot be faulted."
141.It is worth to mention here that the Information Technology Act was enacted in the year 2000, after much advancement in the use of electronic data, transactions being carried out by means of electronic data and other means of electronic communication. It was so enacted to provide legal recognition to such transactions. However, recorded conversations were being produced during criminal trial of a case since long and much prior to 2000 and same were duly relied upon by the courts, subject to certain precautionary measures, for the purpose of giving decision in such case.
142.It is also worth to be seen that section 293 Cr.P.C. refers to certain government scientific experts and provides that report of such experts may be used as evidence even without calling that expert before the court. Thus, report of these certain experts were given special status to become admissible without formal proof of the same. In the year 2005, legislature added one more category in section 293 (4) Cr.P.C. to include any other government scientific expert specified by notification by the Central Government for this purpose. This addition took effect from Page 73 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 23.06.2006. Thereafter, w.e.f. 27.10.2009, legislature again came up with section 45 A Evidence Act, to say that opinion of examiner of electronic evidence referred in Section 79 A of I.T. Act shall be a relevant fact in respect of any information stored in any computer resource or any other electronic devise. Thus, it can be seen that legislature had been taking steps one after another for the purpose of due legal recognition of electronic evidence in formal manner.
143.It cannot be said that prior to 2009, opinion of any scientific expert was waste in any court proceedings. Section 45 of Evidence Act in itself is enabling provision to accept opinion of such expert in the court proceedings. Obviously, the courts over the passage of time, have evolved certain precautionary measures for the purpose of appreciation of any such opinion. Notification u/s 79 of I.T. Act may further lay down a basis to accept report of such notified expert under Section 293(4) (g) Cr.P.C., without formal proof of the same. Further more, it has to be appreciated that other experts viz. handwriting experts have to prove their opinion or report before the court, after appearing as witness. Their opinion/reports are evaluated on merits, rather than being rejected on the grounds that they are not notified experts.
144.In the present case, PW22 examined the contents of Q1 & Q2 and compared the same with contents of S1. He adopted prevalent scientific instrument and method of audiography and spectrography. His opinion/report is based on scientific examination, rather than personal opinion. Therefore, same would be admissible in evidence.
145.In the case of Ashish Kumar Dubey v. State (supra), Delhi High Court referred to observations made by Supreme Court in the case of Ram Singh v. Col. Ram Singh, 1985 Supp SCC 611. In this case, Supreme Court did lay down certain precautionary guidelines, which are as Page 74 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 follows:-
(a) The voice of the speaker must be duly identified by the maker of the record or by others who recognise 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.
(b) The accuracy of the tape-recorded statement has to be proved by the maker of the record by satisfactory evidence- direct or circumstantial.
(c) Every possibility of tampering with or erasure of a part of a tape- recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.
(d) The statement must be relevant according to the rules of the Evidence Act.
(e) The recorded cassette must be carefully sealed and kept in safe or official custody.
(f) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances."
146.In this case, PW22 mentioned in his report that he was selected as SSO II Physics in October 2010 through UPSC and he had given reports in 433 cases, including 314 cases of speaker identification. As per his testimony, he examined all three memory cards to detect any kind of tampering or editing. He also examined DVR to ascertain if the recordings in Q1 and Q2 as well as in S1 could be recorded through that DVR. For this purpose, a test recording was done by him using that DVR on his official SD card and thereafter, he compared features of this recording with features of aforesaid three recordings. He found the features to be the same, thereby confirming that the recordings in three memory cards produced for examination, could be done through the DVR produced for examination. He prepared his report accordingly.
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147.In his cross-examination by defence, he further deposed that this case was assigned to him by his head of department and for this purpose, he produced the copy of request letter of this court to Director, CFSL bearing endorsement of head of department to assign this case to PW22. Same is Ex. PW22/D1. In his report, he had wrongly mentioned one audio file, wherein file no. 171227 1501 was mentioned as file no. 171227 501. It was suggested to PW22 by defence that he did not examine the memory card and simply copied the particulars of file from the transcript supplied to him, but he denied this suggestion. This mistake was also there in the transcript prepared by the IO and may be PW22, while preparing his report, committed mistake to mention erroneous file number. However, such error does not go into the roots of examination of audio files of memory cards. Such error could take place being human error.
148.He was also asked if he examined DVR to see if there could be any editing or tampering in the recorded conversation using that DVR. PW22 deposed that such opinion was not demanded from him, though, he had inserted Q1 and Q2 in that DVR, so as to check their compatibility with DVR. It was further asked if he had obtained any specific degree for spectrography and it was deposed by him that as per his knowledge there was no degree specific for the purpose of spectrography or for voice identification. He further deposed that he had participated in short term service certificate training course at CFSL Chandigarh. He was simply given suggestion that he did not attend such course, though, in case of any doubt, defence counsel could have asked him to produce such certificate, which was not so done.
149.He further deposed that it was not in practice to obtain sample voice of more unknown persons. For spectrography examination, it is mandatory Page 76 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 that questioned word and the specimen word should be same. In this case, opinion was given on the basis of auditory analysis and spectrography examination. He further explained that in auditory analysis, linguistic and phonetic features of both voices are measured and compared. He further deposed that he had lifted total 27 clue words from 10 sentences from Q1 and Q2 and he did not have the transcript of specimen voice recording. Therefore, he was not having knowledge that what was stated by accused Vijay in specimen recording. Though, in the transcript of questioned recording, it was denoted that what was spoken by Vijay.
150.On perusal of report of PW22 i.e. Ex. PW22/A, I do find that he had picked certain words out of the transcripts of recorded conversations and out of the specimen voice of the accused. His report further mentions that these were clearly audible words and all these selected words were transferred to speech science laboratory for examination. The auditory features in the utterances of the speaker in questioned voice as well as specimen voice were compared and they were found to be similar. Thereafter, they were further subjected to spectrographic analysis on computer voice spectrograph for their voice grams. Waveform and spectrographic analysis were carried out for ascertaining the authenticity of the audio recordings in all three memory cards and thereafter, opinion was given that voice marked in Ex. Q1 and Q2 were the probable voice of Vijay Kumar, whose specimen voice was marked in S1. It was further opined that Q1, Q2 and S1 contained continuous audio recording without any form of tampering. It was also opined that DVR produced for examination could have been used for recording of Q1 and Q2.
151.Neither from his cross-examination nor from the arguments of defence, I get any reason to say that PW22 was not competent to conduct Page 77 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 spectrography examination and to give his report accordingly. There is nothing on record to show that report given by PW22 is fallacious. Therefore, I find Ex. PW22/A to be a reliable evidence, which corroborates the evidence of PW11.
152.The guidelines given by Supreme Court in the case of Ram Singh are well satisfied in this case, because PW11, who was one of the participant in the recorded conversations, vouched for correctness of the recorded conversations and the transcripts thereof. The meeting between PW10, PW11 and accused on given dates are duly established on the record, which establishes the occasion for having such conversations. Though, PW10 had not been very much favorable to the prosecution (I shall deal with reasons thereof herein after), still, even he referred to recording devise being carried by PW11. There is no doubt about such recording devise i.e. DVR being fitted with brand new memory card on both occasions being used for recording of conversations. It is also satisfactorily established on the record that Q1, Q2, S1 and DVR were kept in sealed manner with least chances of tampering and manipulation. The recorded conversations are apparently relevant for this case and voice in the recorded conversations were clearly audible during major part of the recorded conversation.
153.The most important thing is that these recorded conversations were proved as corroborative evidence because from a human being, it is not expected that he shall remember the complete conversation in exact and same manner, so as to depose the same before the court. These recorded conversations were heard by me separately and I also compared the same with transcriptions proved on the record. I did find them to be same as per recorded conversations and to be in consonance with sequence of facts narrated by PW11 to PW14 and Page 78 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 PW16 & PW17 in respect of verification proceedings and trap proceedings.
154.Defence relied upon the case of Sudhir Chaudhary (supra) to say that text for specimen voice could not be prepared on the basis of transcript of recorded conversation. In the case of Sudhir Chaudhary, on the basis of such objections taken by accused, Supreme Court observed that process of drawing voice sample should be fair and at the same time, it was also observed that "we do not find substance in these submission that the text which is to be read by the appellants in the course of drawing their voice samples, should contain no part of the inculpatory words, which are a part of the disputed conversation. A commonality of word is necessary to facilitate a spectrographic examination". The court had invited text from the IO and transcripts of the disputed conversation and had taken a decision to allow spectrography on the basis of text produced by the IO in that case. Thus, Supreme Court in aforesaid case itself recognized the requirement to have similar words in specimen voice as compared to the questioned recorded conversation, for conducting and facilitating spectrographic examination. This requirement was so affirmed by PW22 as well. Therefore, such argument of denfence does not affect the case of prosecution in this case.
155.Defence also relied upon the case of Nilesh Dinkar (supra) to attack evidence of voice identification. However, in that case a finding was given by the court on the basis of evidence of voice identification of accused by two officers, under whose custody the accused persons had remained for sometime. Thus, it was a case of identification of voice by two persons, who were otherwise not part of that recorded conversation and who claimed their ability to identify the voice of the accused. Thus, Page 79 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 the facts and evidence were altogether different in that case, on the basis of which court did not rely upon the evidence of voice test identification. In this case, as already observed herein above, PW22 conducted scientific examination i.e. auditory analysis and spectrography, before giving his opinion. PW11 identified the respective voices including his own voice, in the recorded conversations, as he himself was part of those conversations.
156.Even the findings given in the case of Vishal Chand Jain (supra) were based on different set of evidence. The court was not convinced with the evidence on the record in support of demand and acceptance. The court dealt with the evidence related to seizure of the recorded voice at the time of trap and the evidence related to recording of specimen voice and based upon the circumstances of that case, did not find those evidence to be reliable. However, such finding in that case is not applicable to the facts and evidence of this case. Similarly, findings of Supreme Court in the case of Sukhdev Singh (supra) cannot be applied in this case because court in that case dealt with the opinion given by one handwriting expert and while doing so, word of precaution was given that "True it is, there is no rule of law that evidence of a handwriting expert cannot be acted upon unless substantially corroborated but courts have been slow in placing implicit reliance on such opinion evidence, without more, because of the imperfect nature of the science of handwriting and it's accepted fallibility". In this case we are not dealing with any handwriting expert's opinion.
157.These recorded conversations afford better situation for the court to appreciate the exact nature of demand being made, during conversations of the parties. Ex. PW11/C starts with introductory statement given by PW13, for which he duly vouched before the court.
Page 80 of 117 (Pulastya Pramachala)Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 Thereafter, in the second file, there is conversation between accused and PW11. This conversation had taken place on telephone. In this conversation, PW11 said "mil gaya message usko" and accused replied "mil gaya, kya keh raha hai". This conversation refers to the message being given to the complainant/PW10 by PW11, which means that PW11 was actually acting as messenger. In the same conversation, accused refers to sending notice to the father of complainant and PW11 states that only thereafter, PW10 has come under pressure. Accused further refers to preparing data of all complaints against him (complainant) and states that he would file report before senior officers. Thereafter, he further states that he is ready as per convenience of PW11. Such conversations refer to the talk between PW11 and accused for resolution of the problem for complainant arising out of complaints against complainant.
158.In this conversation, PW11 states that "haan dar asal main kya hai bhai sahab, thoda sa na jo tum ne amount bataya hai na, uska thoda sa gad bad kar raha tha wo". Interestingly, accused is not surprised with such statement of PW11 and this shows that in the past, accused had actually quoted some amount to PW11 for such purposes. Accused thereafter, refers to brotherhood (Bhai bandi) and PW11 makes request to him to take care of PW10 and to leave PW10 for his sake. PW11 told accused that he was calling PW10 there, to which accused assured PW11 to bring PW10 for 2 minutes.
159.Thereafter, as per next file of recorded conversation, there are conversations between PW11 and accused, wherein PW10 joins subsequently. This is well consistent with the deposed facts that first of all PW11 had entered police post on 27.12.2017 and thereafter, he had called PW10 inside. From this conversation, one can find that accused Page 81 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 was boasting that he could block the ways or could make out the ways, after referring to complaints against PW10 and after referring to sending notice to PW10. He also referred to some past talk with PW11 to say that on demand of PW11, he had furnished list of complaints to him. He also referred to some promises made to him in the past and came up with some indirect threatening words i.e. "tikega wo ab wo tike main tikun main tikna band kar du aapko fir dikkat hogi". PW11 told accused that he had asked PW10. PW11 further said that he had told PW10 about Rs.2 lac, but there was no resentment on the part of accused about such statement of PW11. Therefore, it is once again confirmed that accused had asked for Rs.2 lac initially.
160.When PW11 told accused about stand of PW10 that he had spent such amount, accused said to PW11 that he had told PW11 to take everyone along and complaints would be filed. He also said that "aap dubara fir suru kar dena do paise lena mujhe koyi dikkat nahi hai kis se kaun aadmi kya kama rha hai kaise kama rha hai mere paas se ye complainte file ho jayengi khanna ko bulake in complainton ko file kara dete hain uske baad dubara kar lena jo tumhe karna hai nahi to bhai kaise kaam chalega". Such statement of accused refers to complaints of extortion against complainant and this statement shows that the accused was not having any problem, even if compainant had been extorting money and he was ready to file the complaint. For that purpose, PW11 said quoting PW10 that the complaints were being filed in 20,000/- and so much money for the same ? Accused continued bargain on the pretext of complaint being there. Rather, he subsequently referred to other complaint of Parul Jain and also said that he was not asking money for the complaint of Parul Jain. Thus, bargain continued, wherein accused also boasted that he had done lot of work on these complaints. PW11 Page 82 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 suggested to accused to ask for 1.5 stating that thereafter, PW10 would agree for one. Accused replied that "ek to maine bola bichle ek to mujhe de dena baaki upar wo teri meri baat ho jayegi jo lagenge 10-20 hazar upar jayenge thik hai 20 hazar inke dilade ek mujhe dila de apni complainte file kara de". From such statement, it is crystal clear that a bargain for amount was going on. PW11 was also known as 'bichle' and probably there might be some understanding for commission of PW11 also.
161.The subsequent part of conversation includes another statement of accused, wherein he said that "suno meri baat usko bol do ek bis leke aa jayega ek ghante me saari chijen file kar dunga aage ka wo hisab rakhega hum se milke chalega baat khatam aur bata de usko". Thus, this sentence further confirms that accused fixed the bargain at Rs.1.2 lac and at the same time, he also asked PW11 to give message to PW10 to keep accounts of future transactions (perhaps transactions of extorting money by making complaints against unauthorized constructions) and to keep tuning with accused.
162.Complainant was thereafter, called inside and there had been long conversation between the parties. Once again, I would refer to only some parts, which are explicit in their content so as to refer to kind of bargain going on between these parties. Same are as follows :-
Accused - "Pyar se hamare saath aa jao pyar se mil lo pyar se khalo maje lo jindagi ko bana lo jo marji karna hai achha pyar se karlo ........ fir system bana lo jo system hota hai na wo system se kaam kar lo sab kuchh chalta hai duniya me sab kuchh chalta hai system hoga to". PW10 - "system bhai shahab ne ek baat mujhse kahi thi maine to agle din hi inko kaha tha maine kaha tha agar aisa ho to karlo baat". PW11 added " 20% wali". Accused further said "wo maine bata di maine bata di Page 83 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 wo puchh ke complaint ko dispose off kar do uske baad jaisa tumhe karna hai karte rehna baat kar di thi maine........". PW10 asked "kisme kitne dene hain?" and accused continued bargaining saying that "kam karlo yaar fir bata do". PW10 again said "jo aap kah doge wo main pura kar dunga" and again accused referred the matter to PW11 saying that whatever he will say accused would accept the same.
163.Accused further stated that PW11 had come to him 4-5 times for PW10 and bargain continued. He also assured to file the complaints and explained as to how he would file the complaints. There is no reference at all for any compensation to Khanna i.e. PW9. Thereafter, accused and PW10 had talked about their native places. PW10 again asked for the quotation. PW11 said that accused had asked for 2 and PW10 said that it was on higher side. He asked to lower the amount. Accused came up with statement that "1.5 kar dena bus isme jyada kam mat kar dena ye to padosi ke hisab se rawli surana ke hisab se". However, bargain continued. PW10 requested for one and accused said that "ek bis ki baat ho chuki hai yaar meri samjha kar tere baare me saari baat ho chuki hai". Thereafter, PW10 asked for time of next day. Accused gave time of 10 O'clock and thereafter, 11 O'clock and finally time of 1-2 O'clock was fixed.
164.Now, I shall deal with the aspect of PW9 Sh. Rajesh Khanna and PW10 Sh. Sachin Tyagi turning hostile in this case. PW9 took plea before the court that PW10 used to extort money and therefore, he had made complaints against him. Thereafter, PW10 approached him for settlement and he demanded Rs. 2 lacs as damages. PW11 also became middle man and all of them agreed to pay Rs. 1.5 lacs to PW9, for taking back complaint against PW10. PW9 further deposed that on Page 84 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 24.12.17, he received call from PW11 to come to PS. On same evening PW11 made him to talk to the accused and accused asked him to take Rs. 1.2 lacs from PW10 and to settle the dispute. On 27-28.12.17, PW9 again received call from PW11 to come to PS.
165.PW10 also deposed that PW11 had talked in PS and as per that talk, he had to pay Rs. 2 lacs to PW9. He further took stand that accused asked him to give Rs. 1.2 lacs to him during their meeting on 27.12.17 and accused further told him that PW9 would come alongwith complainants and they would give in writing regarding the settlement. PW10, however, went against case of prosecution to say that during his meeting with accused on 28.12.17 (during trap proceedings), he put the amount of Rs. 1.2 lacs in the drawer of table of accused and thereafter, he left room. He remained outside the room of accused during further proceedings, when CBI officers had come to the room of accused. Thus, he altogether denied his role in the further proceedings conducted by CBI.
166.The case of prosecution is that when PW10 and PW11 went to office room of accused on 28.12.17 during trap proceedings, accused demanded the agreed amount through gesture and thereafter, PW10 handed over the currency notes treated with phenolphthalein powder to the accused. Accused accepted the same through his right hand and thereafter, amount was taken into left hand by the accused. Finally, accused put that amount in the drawer of his table.
167.It is wroth to be seen here that PW9 had been inimical to PW10 and this fact is well established on record by virtue of testimonies of these two witnesses itself as well as by virtue of undisputed evidence of PW3 and PW8, who were JE in EDMC. These two witnesses had proved on record that property constructed by PW9 were demolished on the Page 85 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 complaint of PW10 and later on, on the basis of fresh complaint, the property was sealed as well. Therefore, it is well apparent that PW9 had sustained loss on account of action got initiated by PW10. It is also undisputed fact that PW9 made complaint of extortion against PW10 before police and similar complaints were made by different property owners as well. This is also undisputed fact that all such complaints were finally lying with accused (ref-evidence of PW6). Thus, accused was in command over the complaints of extortion against PW10.
168.During examination of PW10, another development was brought to the notice of this court relating to influence and threats being exercised over PW10 to mould his testimony before the court. On 10.05.18, IO of the case had produced a complaint sent by PW10 to CBI and same was put to PW10 during his cross-examination by ld. Sr. PP for CBI. PW10 admitted having made such complaints in the office of DCP Shahdara, Delhi on 26.04.18 and sending same complaint to CBI through post. That complaint was proved by him as Ex. PW10/P1. In this complaint, PW10 had made allegations that accused and his partners i.e. PW9 and other property owners had been consistently putting pressure upon him, after arrest of accused in this case, so as to withdraw his complaint or to change his statement. He also referred to an instance of accused approaching him and threatening him for life alongwith giving offer to get him paid money from property owners also, (who made complaints against PW10). PW10 deposed before the court that contents of this complaint made by him were true, except to the portion from point A to B. In this portion, PW10 had alleged that accused had taken out a pistol from his shirt and had offered him to get him paid money from property owners against a share for the accused and to change his statement accordingly.
Page 86 of 117 (Pulastya Pramachala)Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017
169.In present proceedings, I do not intend to look into the culpability of the accused against aforesaid alleged threats or correctness of allegations made by PW10 in his complaint Ex. PW10/P1, because as per report given by local police, PW10 had been reluctant to join enquiry and finally after joining enquiry he exonerated accused. Therefore, that complaint was filed by local police. A similar kind of complaint was made by PW11 also regarding an incident of threat given to him on 13.05.18, so as to change his statement in this case, but PW11 withstood with his allegations and FIR no. 151/18 was registered in PS Geeta Colony, on the basis of his complaint.
170.However, all these developments do point out to something going on behind curtains and beyond premises of court, so as to influence the prime witnesses of this case i.e. PW10 and PW11. This is not something unknown and unheard process. Rather, it has become a kind of routine affair in our system that the prime witnesses are influenced, threatened or won over to change their statements before the court. In such circumstances, duty of the court is to look more cautiously into the evidence of these witnesses as well as other evidence of prosecution. It is not required that complete evidence of such hostile witnesses be ignored, rather, court has to see that what particular part of their evidence is infected. Supreme Court has taken note of such situation prevalent in our system and has still taken note of relevant part of evidence of such witnesses as well as other prosecution evidence, in order to reach a particular conclusion in the case.
171. In the case of Vinod Kumar v. State of Punjab, 2015 CRL. J. 1442 (SC), the main complainant had resiled from his previous statement before the court. Another public witness, who took part in the trap proceedings, though, supported the case of prosecution in his Page 87 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 examination in chief, but during his cross-examination, he also resiled from his examination in chief and thus, he was also declared hostile by prosecution. Prosecution had examined other official members of the trap team and finally the trial court as well as High Court convicted the accused u/s 7 and 13 (2) of the Act. In the appeal before Supreme Court, arguments were raised by defence that two informant did not support the case of prosecution and it was not justifiable on the part of trial court to record conviction. Argument was also raised that other witness had also turned hostile and the evidence of TLO deserved to be discarded because he was an interested witness. Supreme Court also dealt with defence argument that solely on the basis of evidence of recovery, a conviction was not sustainable and hence, presumption u/s 20 of the Act could not be attracted. It was also argued before Supreme Court that TLO had investigated the case as well and thus, the concept of fair investigation was marred, thereby vitiating the trial. It was also argued that a person, who was part of a trap party, was an interested witness, who would be enthusiastic to see that trap is sustained in every manner and in such a situation, it was per se unfair, biased investigation.
172.While dealing with aforesaid arguments and after referring to a number of case laws on respective points, Supreme Court quoted observations from other cases with approval and made following observations, which are relevant for the purpose of this case as well:-
"22. .........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 evidence about the payment of bribe."
From the aforesaid authorities it is clear that a trap witness is an interested witness and his testimony, to be accepted and relied upon requires corroboration and the corroboration Page 88 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 would depend upon the facts and circumstances, nature of the crime and the character of the trap witness.
28.In the instant case, PW-8, who was a member of the raiding party had sent the report to the police station and thereafter carried the formal investigation. In fact, nothing has been put to him to elicit that he was anyway personally interested to get the appellant convicted. In our considered view, the decision in S. Jeevanatham (supra) would be squarely applicable to the present case and, accordingly, without any reservation we repel the submission so assiduously urged by Mr. Jain, learned senior counsel for the appellant.
29. .......In Bhagwan Singh v. State of Haryana, (1976) 1 SCC 389, it has been laid down that even if a witness is characterised as a hostile witness, his evidence is not completely effaced. The said evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony, if corroborated by other reliable evidence. In Khuji @ Surendra Tiwari v. State of Madhya Pradesh, (1991) 3 SCC 627, the Court after referring to the authorities in Bhagwan Singh (AIR 1976 SC 202) supra), Rabindra Kumar Dey v. State of Orissa, (1976) 4 SCC 233 and Syad Akbar v. State of Karnataka, (1980) 1 SCC 30, opined that the evidence of such a witness cannot be effaced or washed off the record altogether, but the same can be accepted to the extent it is found to be dependable on a careful scrutiny thereof.
33. .........in Hazari Lal v. State (Delhi Administration) (1980) 2 SCC 390, would be apt. In the said case a police Constable was convicted under Section 5 (2) of the Prevention of Corruption Act, 1947 on the allegation that he had demanded and received Rs.60/- from the informant who was examined as PW-3 and had resiled from his previous statement and was declared hostile by the prosecution. Official witnesses had supported the prosecution version. Keeping in mind the evidence of the official witnesses the trial Court had convicted the appellant therein which was affirmed by the High Court. A contention was raised that in the absence of any direct evidence to show that the police constable demanded or accepted bribery no presumption under Section 4 of the Act, 1947 could be drawn merely on Page 89 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 the strength of recovery of the marked currency notes from the said police constable. Chinnappa Reddy, J. speaking for the two- Judge Bench observed as follows:-
"......It is not necessary that the passing of money should be proved by direct evidence. It may also be proved by circumstantial evidence. The events which followed in quick succession in the present case lead to the only inference that the money was obtained by the accused from PW 3. Under Section 114 of the Evidence Act the court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case. One of the illustrations to Section 114 of the Evidence Act is that the court may presume that a person who is in possession of the stolen goods soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. So too, in the facts and circumstances of the present case the court may presume that the accused who took out the currency notes from his pocket and flung them across the wall had obtained them from PW 3, who a few minutes earlier was shown to have been in possession of the notes. Once we arrive at the finding that the accused had obtained the money from PW 3, the presumption under Section 4 (1) of the Prevention of Corruption Act is immediately attracted."
35. ...........It was contended before this court that presumption under Section 20 of the Act can be drawn only when the prosecution succeeded in establishing with direct evidence that the delinquent public servant had accepted or obtained gratification. It was further urged that it was not enough that some currency notes were handed over to the pubic servant to make it acceptance of gratification and it was incumbent on the part of the prosecution to further prove that what was paid amounted to gratification. In support of the said contention reliance was placed on Sita Ram (supra) and Suraj Mal v. State (Delhi Admn.) (1979) 4 SCC 725. The three-Judge Bench referred to Section 20 (1) of the Act, the pronouncements in Hawkins v. Powells Tillery Steam Coal Co. Ltd. (1911) 1 KB 988 and Suresh Budharmal Kalani v. State of Maharashtra(1998) 7 SCC Page 90 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 337 and adverted to the facts and came to hold as follows:-
"From those proved facts the court can legitimately draw a presumption that the appellant received or accepted the said currency notes on his own volition. Of course, the said presumption is not an inviolable one, as the appellant could rebut it either through cross-examination of the witnesses cited against him or by adducing reliable evidence. But if the appellant fails to disprove the presumption the same would stick and then it [pic]can be held by the court that the prosecution has proved that the appellant received the said amount."
38. .........As we notice, the authorities in B. Jayaraj (supra) and M.R. Purushotam (supra) do not lay down as a proposition of law that when the complainant turns hostile and does not support the case of the prosecution, the prosecution cannot prove its case otherwise and the court cannot legitimately draw the presumption under Section 20 of the Act. Therefore the proposition, though industriously, presented by Mr. Jain that when Baj Singh, PW5, the complainant, had turned hostile the whole case of the prosecution would collapse is not acceptable and accordingly hereby rejected. 40. .........The evidence of PW6 and PW7 have got corroboration from PW8. He in all material particulars has stated about the recovery and proven the necessary documents pertaining to the test carried with phenolphthalein powder. The fact remains that the appellant's pocket contained phenolphthalein smeared currency notes when he was searched. It is apt to take note of the fact that the currency notes that have been recovered from the right side of the pant pocket were actually prepared by PW8 by smearing them with phenolphthalein powder. The appellant was caught red-handed with those currency notes. In his statement recorded under Section 313 of Cr.P.C., he has taken the plea that he is innocent and has been falsely implicated due to animosity. No explanation has been given as regards the recovery. Therefore, from the above facts, legitimately a presumption can be drawn that the accused-appellant had received or accepted the said currency notes on his own volition. The factum of presumption and the testimony of PW6 and 7 go a long way to show that the prosecution has been able to prove Page 91 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 demand, acceptance and recovery of the amount."
173.Keeping in view the aforesaid legal principles explained by Supreme Court, this court has to still look into the relevant part of evidence of PW9, PW10 and PW11 and to see if the allegations of prosecution are otherwise established by virtue of reliable piece of evidence. It is true that PW9 and PW10 tried to come up with a story that amount of Rs. 1.2 lacs was to be paid to PW9 as compensation to him. However, I find that evidence of PW11 read with undisputed part of evidence of PW10, as well as recorded conversations in memory card Q1/Ex. Article/PW11/5 read alongwith transcript of the same i.e. Ex. PW11/C, establishes that initial demand of Rs. 1.2 lacs was made by accused from the complainant/PW10. The purpose of paying this amount was to file the complaints against PW10, by the accused. There was clear cut element of such demand being made by the accused for himself. It would be a different question if out of such amount, accused would have opted to share some part of this booty with PW9 and others.
174.Even otherwise, offence of extortion is not compoundable in law. Even a compoundable offence is compounded by a court of law, rather than police. It is unfortunate scenario of our system that a complaint disclosing clear cut cognizable offence, is kept pending by investigating agency, in the name of making enquiry and many times under the garb of such enquiry, illegal/unrecognised action in law is taken by police. In the present case, such process of enquiry was used to bargain for a bribe amount from PW10, so as to hush up and file the complaints of extortions against PW10. Therefore, the final conclusion remains that there was demand of Rs. 1.2 lacs made by accused from PW10, as settled between them on 27.12.17.
175.The findings given by Supreme Court in the case of B. Jayaraj (supra) Page 92 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 were based on the appreciation of evidence of that case and there is no dispute to the fact that demand of illegal gratification is one of the constituents of Section 7 of the Act.
176.In the case of Mukhtiyar Singh (supra), once again Supreme Court returned its finding on the basis of over all appreciation of evidence in that case and held that prosecution failed to prove the charge against the original accused beyond all reasonable doubt. It is settled law that the appreciation of evidence in a case depends upon the peculiar evidence, facts and circumstances of that case. Therefore, the one line used in evidence in one case may not be having same effect in another case as well.
177.The finding in the case of Kanti Prasad (supra) was once again based on appreciation of peculiar evidence of that case, wherein court disbelieved version of a witness i.e. PW5. Same is the situation with other cases cited by defence counsel. Now, I shall deal with the evidence related to demand immediately prior to alleged acceptance of bribe amount.
Trap Proceedings, Final Demand and Acceptance:-
178.The next alleged demand took place during trap proceedings conducted on 28.12.17. As per testimony of PW16, this trap proceeding was assigned to him by SP after registration of FIR on same day i.e. 28.12.17. As per evidence on the record, PW10, PW11 and PW13 were already given directions by PW12 to report in the morning hours of 28.12.17, which they did. PW16 was trap laying officer, who constituted the trap team, comprising of PW10, PW11, PW12, PW13, PW14, PW17 and some other officers.
179.PW11, PW12, PW13, PW14, PW16 & PW17 gave almost similar account of procedural aspect of the trap proceedings. It is also well Page 93 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 established on the record by virtue of testimonies of these witnesses as well as testimony of PW10, that PW10 had brought amount of Rs. 1.2 lacs in denomination of Rs. 2000/- each. PW11, PW12, PW13, PW14, PW16 and PW17 remained firm in respect of the fact that distinctive numbers of all the currency notes were noted down in pre-trap memo, which were duly verified by independent witnesses as well. These notes were treated with phenolphthalein powder and PW14 had put such treated currency notes in the pocket of jeans of PW10. Purpose of treating these currency notes with phenolphthalein powder was also explained and demonstrated to the team members. It was vouched by all these witnesses that every member of team had washed their hands before leaving the office of CBI.
180.In respect of remaining phenolphthalein powder, there had been some confusion because PW12 said that it was disposed off, while some other witnesses deposed that it was returned back to malkhana. However, it was consistent stand of all these witnesses that phenolphthalein powder was not taken to the place of trap. PW10, who though had become a bit favorable to accused to shift away the allegations of bribe being demanded by the accused for himself right since beginning, also affirmed the facts that the currency notes were produced by him and after treatment with phenolphthalein powder, same remained in his pocket. It was not plea of defence that these currency notes thereafter, were touched by anyone, before the same were took out by PW10 in the room of accused.
181.The testimony of aforesaid witnesses also affirmed that DVR with a new memory card was put in the pocket of PW11 for the purpose of recording of the conversation. I have already dealt with this aspect herein before and concluded that the recorded conversations, read with Page 94 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 their transcripts are reliable, which have been duly proved on the record by PW11. Therefore, the arguments of defence relating to minute parts of this proceeding do not go into the roots of the matter. Some deviations are bound to take place in the testimonies of different witnesses to same fact. The courts have well recognised the possibility of contradictions or even some improvements appearing in the evidence of witnesses, however, unless such contradictions or improvements affect the roots of the case, evidence of these witnesses cannot be discarded.
182.PW10 and PW11 were once again only witnesses to prove demand immediately prior to acceptance. As already observed herein above, PW10 did make a deviation in his testimony before the court regarding this demand, however, PW11 remained firm over the stand that inside the room, accused demanded the money through gesture and thereafter, that amount was handed over to him by PW10. Defence relied upon the testimony of PW10 for obvious reasons that PW10 had supported accused on this aspect. However, I have already discussed the reasons for deviations appearing in the evidence of PW10, therefore, not much attention is to be given to such deviations.
183.Law does not postulate that the demand must be made vocally. In fact, no particular form of demand has been prescribed in law. Law only requires that there should a demand from the side of accused. Such demand may be conveyed in various manner. Gesture is one of the way to make demand. Therefore, it has to be seen whether there was in fact, demand coupled with delivery of currency notes, as vouched by PW11.
184.In this regard once again, recorded conversations in memory card Q2/Ex. Article/PW11/9, becomes hand tool to appreciate the actual happenings. This memory card contained recorded conversations taken place on 28.12.17. The first file on this memory card bearing no. 171228 Page 95 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 1159 related to introductory voice of PW13. The second file bearing no. 171228 1159 (01) related to introductory voice of PW14. Both these witnesses had identified their respective voices before the court. The next file bearing no. 171228 1257 relates to telephonic talk between accused and PW11 and PW11 had vouched for correctness of this conversations as per transcript Ex.PW13/E. Thereafter, another file bearing no. 171228 1300 related to talk between PW10, PW11 and accused, in the room of accused and this was also so affirmed by PW11.
185.On perusal of transcripts of these recorded conversations, I do find that accused had been waiting for PW10 and PW11. Such wait on the part of accused was in natural sequence to the agreement taken place among them on 27.12.17, because as per that agreement PW10 had to pay Rs. 1.2 lacs to the accused on this day. Accused asked if Khanna was to be also called and PW11 left it for him to decide. Thereafter, accused asked PW11 to come to him.
186.As per conversation taken place among PW10, PW11 and accused, this time accused asked to call Khanna, though PW10 resisted such decision of accused and said not to call Khanna in his presence. Such stand of PW10 before accused, goes on to show that there could not have been direct settlement talk between PW10 and Khanna/PW9. Otherwise, there would not have been such hesitation on the part of PW10 for calling of PW9 in that office.
187.In the further sequence of conversation, it was finally agreed between accused and PW11 (to call Khanna), though, PW10 did not want to see the face of PW9. Accused had given a justification to call PW9 by saying that "ye sign to wo hi karayega sab ke bayan pe". Such statement of accused shows that PW9 was to be given responsibility to take statement of all the complainants in favour of PW10, so as to withdraw Page 96 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 their complaints. Thereafter, PW10 asked accused to take (referring to money) before arrival of Khanna. Accused said that Khanna would bring all the statements in signed condition. Then there is voice of complainant saying "ye lo poore hain ek bees". There is no resistance on the part of accused in the conversation, rather he repeats his previous sentence. This shows that during all such conversation going on, accused accepted bribe money from the complainant/PW10. Possibility of demanding such money through gesture cannot be ruled out.
188.It is worth to mention here that the evidence has to be seen in totality. The demand can be conveyed in mute manner as well. As per sequence of proven facts here, on the previous day, accused himself had bargained hard to settle the amount at 1.2 lacs and he had been waiting on this day for PW10 and PW11. The obvious reason was that he was waiting for money and therefore, he accepted that amount from PW10 without any resistance, rather voluntarily. This would be further reflected from the subsequent part of the conversation, wherein PW10 said that he had to go to wash room. PW11 suggested him that it is available outside. Accused asked PW10 as to where was he going? PW10 responded as "Su su". Accused offered him wash room inside his room, but PW10 showed hesitation to go there. In the meantime, PW11 also made a call to some other person (probably to PW9) so as to call him there.
189.As per testimony of PW11, accused had accepted money through his right hand and thereafter, he shifted it to his left hand and thereafter kept it in the drawer of his table. PW10 had gone outside his room, though, PW11 remained inside the room and within one minute, two CBI officers came inside that room and caught hold of hands of accused. Thereafter, other CBI officials also came inside. PW17 deposed that during this trap Page 97 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 proceedings, he was standing on the road infront of gate of police post. Other members of team had taken their position in scattered manner near that place. He could see that PW10 and PW11 went inside a room in the police post. After sometime, he saw that PW10 came out from that room and rubbed his hand over his hair, which was pre-decided signal instructed to him. PW17 informed Insp. Ajay Kumar Singh, who was present behind PW17 and thereafter, through gesture and words he also asked other team members to come inside. PW17 alongwith Insp. Ajay went first and entered the room. In the room he saw that one police official was sitting on the chair and on the other side of the table, PW11 was standing. PW17 caught hold of left wrist of that police official and Insp. Ajay caught hold of right wrist. PW17 identified the accused to be the same official. Accused introduced himself to PW17 as Rajesh and by this time, other members of the team came alongwith PW10. PW17 asked PW10 as to whom he had given money. PW10 pointed out towards accused. PW16 asked PW10 as to where the money was kept and PW10 informed that the money was kept in the upper drawer of table on the left side of the accused.
190.As per testimony of PW12 and PW16, on entering the room they saw that PW17 and Insp. Ajay Singh were holding hands of accused. PW12 had taken DVR back from PW11 and switched it off. PW16 introduced him and asked accused to introduce himself. Accused introduced himself as SI Vijay Kumar and thereafter, he was challenged by PW16. PW10 was asked to narrate the transaction and thereafter, PW10 told them that accused had taken money from right hand and thereafter, he shifted it to his left hand and then kept it in the left drawer of the table. Same was the testimony of PW13 to the effect that two CBI officers had caught hold of hands of accused and PW16 asked PW10 to brief him about the Page 98 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 happenings taken place there. At that time, PW10 told PW16 that after some conversation accused demanded money through gesture and then PW10 gave those currency notes to accused and accused kept those currency notes in the left drawer of his table. Thereafter, hand wash of both hands of accused were taken separately and both solutions turned pink. Both solutions were transferred into bottle and mouth of the same were wrapped with cloth, which was sealed with the seal of CBI. PW14 was asked to recover the currency notes and PW14 recovered currency notes of Rs. 2000/- from the left drawer of the table of the accused. The money was kept between some papers. Thereafter, PW13 and PW14 verified the serial number of those currency notes with pre-trap memo and found them to be the same as mentioned in the memo. PW13 and PW14 signed on pre-trap memo i.e. Ex. PW11/B once again, as mark of verifying the particulars of currency notes and they identified their signature accordingly.
191.Defence took plea that factum of demand by gesture is not mentioned in recovery memo Ex. PW12/A and therefore, presumption goes against prosecution that such story was introduced later on. However, it was not only PW16 who vouched about such fact being disclosed by PW10 to him, rather, this fact was proved by PW11 on the basis of his own personal knowledge. PW10 gave similar information to PW16 at that place and this fact was so vouched by even independent witnesses PW13 and PW14. Moreover, I have already discussed the recorded conversations of this proceeding and the surrounding circumstances. Therefore, omission to record in recovery memo about demand being made through gesture does not wash away the other evidence. This recovery memo was prepared in CBI office and it depends upon skill and retaining power of every individual, so as to prepare a record of a Page 99 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 proceeding mentioning various details therein. It is not necessary that every person would be able to mention every detail of the proceeding.
192.For the same reason, I am not much convinced with another argument of defence that name of Rajesh was mentioned in the recovery memo and this must go against case of prosecution. It is true that in the recovery memo, while giving description of proceedings of hand washes of the accused, name of Rajesh Kumar was mentioned in place of Vijay Kumar. Though, PW17 came up with the statement that initially he was given introduction by accused as Rajesh Kumar. However, even in absence of such statement of PW17, I find it to be a case of typographical error and case of absence of diligence to check such details. As per PW16, accused introduced himself as SI Vijay to him and in fact name of SI Vijay has been used in this recovery memo in the same paragraph, where name of Rajesh Kumar has appeared. Therefore, it cannot be a case of manipulation and this discrepancy does not go into the roots of the matter.
193.PW10 had taken a stand that he remained outside the room of the accused, therefore, he did not watch further proceedings at all. However, such statement of PW10 is again falsified by the consistent testimony of PW11, PW12, PW13, PW14, PW16 & PW17. The hand washes of the left and right hands of the accused were taken in separate containers and were thereafter, shifted to separate bottles. PW13 and PW14 signed the labels on these bottles alongwith PW16. From their cross- examination, I do not find any contradiction to create doubt over such deposition. Rather, during cross-examination PW13 denied suggestion that both hand washes were shifted into same bottle. PW14 was under
some confusion regarding signature of PW11 being taken on the label pasted on the bottles of hand washes. However, he also remained firm Page 100 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 that both hand washes were taken in fresh and washed container and that both hand washes were transferred into separate glass bottles. Therefore, I do not find any discrepancy regarding proceedings of hand washes of accused being taken at that place. The glasses of both hand washes were duly sealed after the mouth being wrapped with cloth.
194.This fact gets corroboration from the testimony of PW23/Ms. Deepti Bhargawa, who affirmed that both bottles were received by her with seal of CBI (same seal which was produced before the court by PW14). Those cloth pieces were also found in the parcel of these two bottles at the time of production in the court. All these bottles and cloth wrappers as well as envelope containing cloth wrappers were signed by PW23, before putting the same in the parcel and sealing the parcel with her seal i.e. DB CHEM DIV CFSL NEW DELHI. Her report Ex. PW23/A also confirms and corroborates such testimony of PW23, wherein it is so mentioned that both glass bottles were received with seal of CBI and after examination the remnants were sealed with seal as mentioned herein above. PW23 had found both hand washes containing phenolphthalein. In her testimony PW23 deposed about performing test regarding presence of sodium also, though it was not mentioned in her report. This point was not raised during her cross-examination by defence counsel, so as to seek any clarification, though, it was so raised during the arguments. However, this factor in itself cannot be a reason to discard her report. Similarly, just because the worksheets during examination of exhibits were prepared by Assistant of PW23, it cannot be presumed that the examination was conducted by Assistant of PW23 and not by PW23. Another argument was raised that cloth wrappers were sealed by her on the date of preparing report and that parcel mentioned date of 22.01.18, though the report mentioned date of Page 101 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 24.01.18. This discrepancy may take place for various reasons and the best course of action was to seek clarification from PW23 regarding the circumstances under which date of 22.01.18 was put on the parcel, though the report was prepared on 24.01.18. In absence of any such clarification taken from PW23, I do not find it appropriate to altogether reject her report, which is based on the examination of hand washes, using scientific method. No questions were raised regarding the validity of scientific method used by PW23. She admitted that phenolphthalein powder was also available in her lab and that it has light weight. She was suggested, if this powder could float in air in the room, to which she showed ignorance. However, I do not find much relevance of such questions, in view of the proven facts that when these hand washes were taken in the room of accused, the solution had turned pink at that time itself. Thereafter, the bottles were sealed. It cannot be assumed that phenolphthalein powder would be present in the air inside the room of accused, so as to make those solutions pink in colour. I have no reason to doubt the integrity of PW23, so as to presume that she gave a false report. Hence, I find her report to be reliable piece of evidence.
195.Defence has raised other argument regarding communication of phenolphthalein powder during apprehension of accused by CBI officials. Definition of 'hand' was cited to submit that catching hold of hand (as stated by several witnesses) was not full proof process and there was likelihood of transmission of this phenolphthalein powder from the hands of both Inspectors (PW17 and Insp. Ajay Kumar Singh) to the hands of accused. However, I do not find any such fact appearing on the record so as to suggest that both these Inspectors ever came into contact with phenolphthalein powder, just prior in time of catching hold of both hands of the accused. The facts in the case of P. Parasurami Page 102 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 (supra) were totally different, wherein the treated currency notes were thrown away by the accused and were taken away by members of public and those notes were not at all recovered by IO. Therefore, finding of that case cannot be applicable to the facts and evidence of this case. In this case, it was affirmed by all members of trap team except for PW10 that all members of trap team had washed their hands before leaving CBI office. Moreover, there was good enough gap of time when the trap team entered the room of accused for apprehending him. In absence of any concrete material emerging on the record, it cannot be assumed that PW17 and other Inspector had touched phenolphthalein powder, before catching hold of hands of the accused. Neither it was suggested by defence to any witness nor any witness stated about shaking hands with the accused. In fact, even PW10 did not affirm if he had handshaked with accused. It cannot be possible to shake both hands of accused, though, both hand washes of accused turned pink. Rather, both hand washes turning pink confirms the testimony of PW11 that accused had first of all taken those currency notes through his right hand and thereafter, he shifted notes to left hand, so as to keep the notes in the left drawer of his table. The amount was recovered from the left drawer of the table and this sequence also confirms the testimony of PW11 in this regard. Therefore, there was no possibility at all of phenolphthalein powder being transmitted to the hands of accused, prior to his catching hold of hands of accused by PW17 and other Inspector.
196.I do not find much merit in defence argument that only PW17 vouched about catching hold of both hands of accused through wrist, although other witnesses not deposed so, therefore, such difference in their testimony would demolish the case of prosecution. A witness uses the term as per common use and it is not always necessary that witnesses Page 103 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 would choose the terms like wrist or hand very carefully, while deposing before the court. Therefore, such difference in the testimony of witnesses is immaterial. Defence also raised contention regarding contradictions over application of phenolphthalein powder over currency notes, however, such contradiction appearing regarding the particular official who applied phenolphthalein powder in CBI office, is insignificant. It is not unnatural for the witnesses to forget the particulars of concerned official, who gave demonstration of use of phenolphthalein powder or who applied powder over the currency notes. Similarly, omission to tell the name of official, who prepared the solution of water and sodium carbonate, cannot be fatal for the case of prosecution, because these are t0o minute details, which could be expected to be remembered by the witnesses. PW11 did depose about washes being put in a bottle and his signature being obtained on the label of bottle. However, such deposition may be out of forgetting the correct facts, therefore, I do not find such contradiction to be material contradiction.
197.Questions were raised regarding credibility of PW11 on the grounds that he was admittedly a bad character of PS Gandhi Nagar. However, defence did not come up with any suggestion to PW11 or any other evidence to show, if PW11 had inimical relations with the accused, because of his prosecution by accused in the past in any case. Just because PW11 was declared as bad character of that area, he cannot be assumed to be liar permanently. Such background of PW11 would only require a careful scrutiny of evidence given by him, before relying upon the same. In the present case, I have already discussed the corroborative evidences, which make the evidence given by PW11 reliable in material aspects. Therefore, decision given in Satpal v. Delhi Administration (supra) cannot be applicable in this case.
Page 104 of 117 (Pulastya Pramachala)Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017
198.It is also true that PW10 was under trouble because of several complaints of extortion being pending against him with the accused. However, this fact in itself cannot become a basis to say that he falsely implicated accused in this case. Rather, he tried to absolve accused by twisting the facts, during his examination before the court and for this purpose, he went on to lie before the court. It is well proved that accused, used this opportunity of having command over the complaints against PW10, so as to demand bribe and to hush up those complaints.
199.It is equally immaterial that prosecution did not prove bad antecedent of the accused, because for the purpose of this case prosecution was required to prove alleged facts of this case, rather than background of the accused. Similarly, just because PW12 and PW16 admitted that they had gone through their previous statement before entering into the witness box, their evidence cannot be discarded because the statement given by them are found to be supported and corroborated by the statement given by other witnesses as well. It was advisable for them to take permission of the court for refreshing their memory, but in absence of the same it cannot be said that they were altogether tutored witnesses. The findings given in the case of Ramesh v. State (supra) were based on the appreciation of evidence in that case and hence, cannot be applicable to this case.
200.Though, it is matter of record that IO of this case examined many witnesses after some gap of time, however, it is also mater of record that all the material facts were already recorded on the basis of proceedings conducted in this case, in the form of verification memo as well as recovery memo. The argument of CBI that IO also remained busy in some other cases, cannot be brushed aside. The facts and circumstances of the case of Om Prakash v. State (supra) were Page 105 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 altogether different, hence, the omission of IO to record statement of PW9 therein i.e. a public witness/injured was taken seriously by the court. That is not the case herein, hence, this case law is also does not help the accused. Similarly, just because IO did not record formal statement under Section 161 Cr.P.C of some other members of trap team, the case of prosecution cannot be rejected.
201.Some lacunae were shown in recovery memo Ex.PW12/A by saying that accused did not sign the same and even PW12 omitted to sign one page of this memo. However, this cannot be a ground to say that Ex.PW12/A is a false document. In the case of Janardan Sada (supra), Delhi High Court was dealing with a case of murder and was in the process of appreciating the evidence regarding seizure of some clothes at the instance of accused. In that situation the court took notice of the fact that the seizure memo did not contain signature of accused, which was considered along with fallacies in the testimony of other recovery witnesses, so as to raise adverse inference against the case of prosecution. However, such finding cannot be used in the present case because of different set of facts and evidence.
202.In the present case, recovery memo Ex.PW12/A was prepared after conclusion of trap proceedings by TLO/PW16. This fact was deposed and affirmed in categorical manner by the official witnesses i.e. PW12, PW16 and PW17. Besides these official witnesses, PW11 during his cross-examination conducted by ld. Sr. PP for CBI conceded that on 28.12.2017 after coming back to CBI office, Insp. Naval (PW16) had explained the whole proceedings taken place on that day to every one and had prepared a report of the same, which was signed by everyone from the team. He also identified his signature on this recovery memo with date of 28.12.2017. During his cross-examination by defence Page 106 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 counsel, he was suggested that verification memo Ex.PW11/A and recovery memo Ex.PW12/A were prepared subsequent to 28.12.2017 and he signed the same on a later date, but PW11 denied such suggestion. In fact, it has not been disputed by defence that on 28.12.2017, a team of CBI had raided the sitting place of accused i.e. known as police post old Seelampur. Defence has challenged the allegations of demand and acceptance and has taken plea that the currency notes allegedly recovered from accused, were planted upon him. Recovery memo was prepared in the office of CBI and from the cross-examination of aforesaid official witnesses or PW11 or even PW13 and PW14 (independent witnesses), nothing has appeared on the record to suggest that this document was not prepared on that day in the CBI office. Simplicitor giving suggestions cannot be sufficient to demolish the assertions of all these witnesses. Even PW13 and PW14 affirmed this fact that the recovery memo was prepared by CBI officer in the CBI office and same was signed by them. Correctness of the contents of this recovery memo is a different question, which can be looked into separately. Therefore, absence of signature of accused on such memo is immaterial and insignificant.
203.As far as correctness of contents is concerned, PW16 did depose that portion B to B1 and C to C1 in Ex.PW12/A were not correctly recorded, but it has to be seen that what were the contents of such portion. In his cross-examination PW16 deposed that recovery memo prepared almost in the same sequence of the proceeding, but it was prepared after reaching back CBI office therefore, there might be some discrepancy about sequence. The portion B to B1 and C to C1 were stated by him to be not strictly in terms of same sequence of fact. Thus, it was a case of overlapping of sequence, while preparing recovery memo. It has to be Page 107 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 appreciated that this recovery memo was prepared in almost seven pages. It is possible that while recollecting all the facts of proceedings, in order to prepare recovery memo at CBI office, PW16 would have not given much attention to the sequences of the fact very accurately. However, that does not mean that he recorded wrong facts in the recovery memo. Therefore, I do not find much merit in such argument.
204.Defence also raised argument that IO failed to bring on record as to how and in what manner intimation of arrest of accused was conveyed to his family members. PW16 was the arresting officer in this case, who deposed that he had instructed Insp.Sushil Kumar to inform family member of accused about his arrest. Insp. Sushil Kumar was telephonically informed by PW16 so as to pass on information to family members of accused about arrest of accused. Insp. Sushil Kumar was also sent authorization under Section 165 Cr.P.C so as to search the house of accused and this authorization was sent through some official from police post itself. Such facts were not disputed by defence. Immediate supervisory officer of accused i.e. officiating SHO was well aware of apprehension of accused. Defence did not dispute that house search of accused was also conducted by CBI officer. In fact, this fact was used in argument to say that nothing incriminating was recovered from the house of accused. If this search had taken place in the house of accused, then it is well obvious that family members of accused would have come to know about apprehension/arrest of accused by CBI. Therefore, I find this argument to be merit less.
205.Arguments were made regarding overwriting in complaint Ex.PW10/C, wherein there was overwriting in the date put beneath signature of PW10. However, it is established fact that this complaint was made to SP CBI on 27.12.2017 and the date was corrected accordingly. Defence Page 108 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 did not ask any question from PW10 as to under what circumstances he made this correction. There may be number of reasons and correction in date in itself be a ground to say that a false complaint was given by PW10.
206.Questions were raised regarding delay in sending exhibits to FSL, however, such delay can be material only when there are other reasons to doubt the safe custody of exhibits and other chances of manipulating the exhibits. The exhibits in this case were duly sealed and the seal were in the custody of independent witnesses. I have already discussed such evidence herein before, to find that the exhibits were not tampered. Hence, the finding of Jitender v. State (supra) cannot be applicable here.
207.A rough site plan Ex.PW13/B was prepared and it was signed by PW13 and PW14. According to defence the site plan was prepared on the basis of statement of witnesses, therefore, it is hit by Section 162 Cr.P.C. This was so stated by Supreme Court in the case of State of Rajasthan v. Bhawani (supra). On the basis of this argument, I would discard the site plan. However, absence of this site plan cannot wash away the evidence related to ingredients of alleged offences and therefore, the finding given in the case of State v. Sunil Kumar (supra) cannot be applied here. In the case of Sunil Kumar (supra) High Court was dealing with a case under Section 186/353/307/411 IPC, wherein it was observed that site plan is a vital part of investigation. However, it was not observed that in absence of such site plan itself, the case of prosecution would be rejected.
208.The arguments related to proceedings for the purpose of voice identification in CBI office and preparation of transcription on 23.02.2018 do not affect the case of prosecution, because the transcription was to Page 109 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 be compared with original recorded conversation and its authenticity is to be assessed accordingly. The original recorded conversation through primary evidences i.e. Q1 and Q2 were played before this court and the transcripts were found to be correct. Hence, the differences occurring in the testimony of PW10, PW11, PW13, PW14 and PW24 with regard to preparation of transcripts are insignificant.
209.The next argument of defence against credibility of PW13 and PW14 are based on their testimony that PW13 was informed on 26.12.2017 for his duty at CBI office on 27.12.2017 and PW14 was also informed on 26.12.2017 in his office to report to CBI office on 27.12.2017 and in CBI office he was asked to come on 28.12.2017. It was argument of defence that CBI had received complaint on 27.12.2017 itself and it cannot be believed that aforesaid witnesses were informed in advance for verification proceedings dated 27.12.2017 and raid dated 28.12.2017.
210.PW13 and PW14 deposed that as per instructions given in their respective offices, they reported at CBI headquarter on 27.12.2017 in the morning. They were asked by duty officer to wait in the rest room/waiting room. Though, PW13 was taken by duty officer to PW12 at around 2 pm on 27.12.2017, but PW14 was not assigned any job on that day and in the evening hours duty officer asked him to again report on next morning. PW14 again reported next morning and then he was taken to PW16 by the duty officer. Both these witnesses were thoroughly cross-examined by defence counsel and they withstood the test of cross- examination. PW13 deposed that he was assigned duty to report to CBI office in the past on one occasion, however, he was not made a witness in that case by CBI at all, because no proceedings had taken place before him. He denied the suggestion that he had been called by CBI as witness in number of cases and he was made witness in number of Page 110 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 cases being favorite of CBI. He further deposed that he did not have such knowledge that in all circumstances he had to support the case of CBI in the court. As already observed by me, he withstood the test of cross-examination on merits and therefore, I have no reason to disbelieve his evidence on the grounds that he was assigned a duty to report to CBI a day prior to 27.12.2017.
211.Similarly, PW14 denied the suggestion that on 26.12.2017 he came to know that PW13 was also assigned same duty as to report to CBI office. He further deposed that he was deputed on 2-3 occasions for CBI duty, but as witness in any trap case, it was his first case. He also denied the suggestion that he was favorite witness of CBI. Just because such suggestion of defence, I cannot presume that PW14 did not speak truthfully before the court, especially when he also withstood the rigor of cross-examination on merits and remained consistent in respect of material aspects of his evidence. Furthermore, the evidence of PW13 and PW14 were consistent with sequence of such facts as deposed by PW11, PW12, PW16 and PW17. Hence, the finding of Delhi High Court given in the case of Ashish Dubey v. State (supra) cannot be applied in this case. The finding in that case was given on the basis of all surrounding circumstances of evidence given by independent witnesses. I have already discussed the circumstances and consistent evidence appearing on the record of this case. Therefore, a finding is to be returned by me in this case on the basis of appreciation of evidence in this case.
212.As far as case of Karnail Singh (supra) is concerned, the court observed that it was not safe to act on the basis of statement of IO and other official witnesses, when there were material discrepancies and defence version stood proved on record. In that situation, the court gave Page 111 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 as one of the reasons to disbelieve the case of prosecution that Inspector had failed to offer himself for search before conducting the search of the accused. Same bench of Punjab and Haryana Court assumed aforesaid factor to be important, in the back ground of material discrepancies in the statement of prosecution witnesses regarding recovery, while deciding the case of Suresh Kumar v. State of Haryana (supra).
Presumption under section 20 of the Act:-
213.In the case of M. Narsinga Rao (supra), a three judge bench of Supreme Court was dealing with legal question that "can a legal presumption be based on a factual presumption?" In that case as well, the complainant and independent witness to the trap proceedings had turned hostile and they did not support the allegations of the prosecution that accused had demanded and accepted bribe amount of Rs. 500/- from PW-1. In the appeal, accused took plea before the court that the presumption u/s 20 of the Act could be drawn only when the prosecution succeeded in establishing with direct evidence that the delinquent public servant accepted or obtained gratification. Defence also argued that "that premise cannot depend on an inference for affording foundation for the legal presumption envisaged in section 20 of the Act." It was further argued by defence that it is not enough that some currency notes were handed over to the public servant, to make it acceptance of gratification. Prosecution has a further duty to prove that what was paid amounted to gratification. Reliance was also placed by defence over the judgment passed by same court in the case of Suraj Mal v. State (supra, as relied upon by defence in this case).
214.While dealing with such arguments, larger bench of Supreme Court held that the finding given in the case of Suraj Mal depended upon the Page 112 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 veracity of the testimony of the witnesses and otherwise, that judgment did not support the plea raised by defence. The court further made following observations:
"the only condition for drawing such a legal presumption u/s 20 is that during trial, it should be proved that the accused has accepted or agreed to accept any gratification. The section does not say that the said condition should be satisfied through direct evidence. It's only requirement is that it must be proved that the accused has accepted or agreed to accept gratification. Direct evidence is one of the modes through which a fact can be proved. But that is not the only mode envisaged in the Evidence Act."
215.The court made further observations as under:
"In reaching the conclusion, the court can use the process of inferences to be drawn from facts produced or proved. Such inferences are akin to presumptions in law. Law gives absolute discretion to the court to presume the existence of any fact which it thinks likely to have happened. In that process, the court may have regard to common course of natural events, human conduct, public or private business vis-a-vis the facts of the particular case. The discretion is clearly envisaged in section 114 of the Evidence Act."..........
"Illustration (a) to section 114 of the Evidence Act says that the court may presume that "a man who is in the possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession." The illustration can profitably be used in the present context as well when prosecution brought reliable materials that appellant's pocket contained phenolphthalein smeared currency notes for Rs. 500/- when he was searched by PW7 DSP of the Anti Corruption Bureau. That by itself may not or need not necessarily lead to a presumption that he accepted that amount from somebody else, either stuffing those currency notes into his pocket or stealthily inserting the same therein. But the other circumstances, which have been proved in this case and those preceding and succeeding the searching out of the tainted currency notes, are relevant and useful to help the Page 113 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 court to draw a factual presumption that appellant had willingly received the currency notes."
216.The court further referred to another observation made by a three Judge Bench of same court in the case of Raghuvir Singh v. State of Haryana, AIR 1974 SC 1516. In this case, J.Krishna Iyer observed that the very fact of an assistant station master being in possession of the marked currency notes against an allegation that he demanded and received that amount is "res ipsa loquitur".
217.The court further referred with approval to following observations made by same bench in the case of Madhukar Bhaskar Rao Joshi v. State of Mahrashtra, 2000 AIR SCW 4018, so as to dispel the argument of defence that it was not gratification which the appellant had received:-
"The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established, the inference to be drawn is that the said gratification was accepted "as motive or reward" for doing or forbearing to do any official act. So that word 'gratification' need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like 'gratification or any valuable thing'. If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for the official act, the word 'gratification' must be treated in the context to mean any payment for giving satisfaction to the public servant who received it."
218.Thus, the Supreme Court in aforesaid case negated the argument that in absence of direct evidence, presumption u/s 20 of the Act cannot be raised or in such situation, case of prosecution is bound to fail.
219.In the case of M. Abbas (supra), Supreme Court dealt with plea of defence that the recovered amount of Rs.150/- was not received as Page 114 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 bribe, but was received for giving the same to another contractor. The facts and evidence of that case were altogether different. Though, the legal principle emphasized in that case to the effect that accused is not required to prove his defence beyond doubt but only on preponderance of probabilities, is beyond any dispute. However, in the present case, facts and evidence clearly point out towards voluntary act of accused to demand and accept bribe of Rs.1.2 lac from PW10, in order to close and file complaints of extortion against PW10. Defence did not succeed through cross-examination of prosecution witnesses to rebut the presumption under Section 20 of the Act. Moreover, prosecution evidence itself proves the purpose and motive to obtain aforesaid bribe amount from PW10 and accused did not lead any evidence to disprove the acceptance of bribe and proved purpose of the same.
220.The reliance of defence over the cases of Megha Singh v. State of Haryana (supra) and Mohd. Salim v. State of Haryana (supra) is insignificant in this case, because in the case of Vinod (supra) a larger bench of Supreme Court rejected similar argument that since TLO of the case had investigated the case, therefore, whole trial was vitiated. In the present case, TLO/PW16 had not completely investigated the case. PW24 was assigned further investigation of the case. It was delay in assigning this case to PW24 on 08.01.18 (though, trap concluded on 28.12.17), which has given rise to aforesaid argument of the defence. However, such argument cannot be accepted to throw away well proved case of the prosecution.
221.Similarly, there is no quarrel regarding legal principle explained in the case of Subhash Parbat (supra) to the effect that statutory presumptions under Section 20 of the Act is available for the offence punishable under Section 7, but it is not available for offence under Page 115 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 Section 13 (1) (d) of the Act. The court also emphasized over the fact that prosecution has to prove that the accused obtained the valuable thing of pecuniary advantage by corrupt or illegal means or by otherwise abusing his position as a public servant, without aid of the statutory presumption. However, once again it remains matter of facts and evidence of each case to give a particular decision. There is no dispute in respect of legal proposition that simplicitor filing a complaint with CBI by the complainant cannot be taken as a substitute for the evidence of proof of allegations contained therein and the allegations made by the complainant have to be proved before the court.
222.In the present case, I have already discussed the evidence of the case to find that prosecution did prove acceptance of bribe amount by accused from PW10, on the basis of his demand so as to file criminal complaints against PW10. Accused being police official was under duty to act in accordance with law in respect of the complaints against PW10, so as to investigate into the allegations made therein after lodging FIR. He was under duty to file report of his investigation, after collecting all relevant evidences, before the court. However, accused exploited this situation and instead of acting in accordance with law, bargained with PW10 so as to pay Rs.1.2 lac against assurance to file those complaints. Thus, it is well established on the record that accused not only demanded and accepted bribe money of Rs.1.2 lac from the complainant/PW10, but for such purposes he abused his position of being concerned police official, so as to obtain for himself aforesaid money, which could not have been charged from PW10 in legal manner. Conclusion:-
223.In view of my foregoing discussions, observations and findings, I reached the conclusion that prosecution has successfully proved a case Page 116 of 117 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/1/2018, RC No. 41(A)/2017 for offence punishable under Section 7 and under Section 13 (1) (d) (ii) read with Section 13 (2) of The Prevention of Corruption Act, 1988, against the accused beyond all reasonable doubts. Therefore, accused Vijay Kumar is held guilty for aforesaid offences and is convicted accordingly.
224.Before parting with this judgment, it is relevant to record here that evidence on record of this case confirms that complainant/PW10 did depose falsely before this court, in respect of several facts viz. purpose of demand of money, handing over of money to accused in his hand on his demand, DVR being handed over to PW11 in switched on mode in his presence on both days and signing verification memo on 27.12.2017, etc. He is, therefore, liable to be tried for perjury as per procedure u/s 344 Cr.P.C. Hence, he is being summoned accordingly.
Digitally signed by PULASTYA PRAMACHALA PULASTYA Location: Court No.3,
PRAMACHALA Karkardooma Courts,
Delhi
Date: 2018.10.27
15:29:51 +0530
Announced in the open court (PULASTYA PRAMACHALA)
today on 27.10.2018 Special Judge (PC Act) CBI, East
(This order contains 117 pages) Karkardooma Courts, Delhi
Page 117 of 117 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District
Karkardooma Courts, Delhi