Delhi District Court
Cbi vs Rahul Giri on 23 August, 2025
IN THE COURT OF SH. GAURAV RAO, SPECIAL JUDGE
(CBI) (PC ACT)-01, ROUSE AVENUE DISTRICT COURTS,
NEW DELHI.
CNR No. DLCT11-000572-2023
CC No. 84/2023
RC-DAI-2023-A-0005
Under Section 7(A) of PC Act, 1988
Central Bureau of Investigation
.........Prosecution
Versus
Rahul Giri,
S/o Sh. Sompal Giri,
R/o House No. 432,
Gali No. 10, New Karhera Colony,
Mohan Nagar, Ghaziabad,
Uttar Pradesh-201007.
.........Accused
Date of institution : 01.08.2023
Date of arguments : 21.08.2025
Date of judgment : 23.08.2025
Decision : Convicted
JUDGMENT
BRIEF FACTS AS PER THE CHARGE SHEET
1. It is the prosecution case that a complaint dated 24.02.2023 was received from complainant Sh. Ajeet Singh Tomar s/o Sh. Rampal Singh R/o House No. F-145, Rajpuri Colony, Loni Border, Ghaziabad, Uttar Pradesh wherein, it was alleged that he is a Bus Driver in DTC at Nand Nagri Depot bearing Batch No. 26825 & Token No. 68830 and was suspended CC No. 84/2023 CBI v. Rahul Giri 1/163 on 21.02.2023. It was averred in the complaint that after his suspension, accused Rahul Giri, Conductor (Nand Nagri Contract Conductor) having NCC No. 95/76388 contacted him and asked Rs. 50,000/- for getting his suspension revoked while further telling him that he has discussed about this matter with Depot Manager Sh. Abhishek Jain. As the complainant did not want to pay the said bribe amount, he gave the complaint to the SP, CBI, ACB, Delhi for taking legal action against the accused.
1.1 It is the prosecution case that the complaint was registered as CO-06/2023 and marked to Inspector Rajendra Kumar Choudhary for verification who conducted its verification in the presence of SI Akash Kumar Srivastava and independent witness Sh. Vipul Kumar Steno-D, Central Water Commission, Ministry of Jal Shakti, New Delhi on 24.02.2023 which revealed a demand of Rs. 50,000/- by the accused to favour the complainant in getting his suspension revoked, which proceedings are reflected in verification memorandum.
1.2 It is its case that after verification FIR No. RC DAI-2023-A 0005, CBI ACB Delhi was registered on 27.02.2023 and a trap team was constituted on the same day. The Pre-Trap Memorandum dated 27.02.2023 was prepared detailing the pre trap proceedings i.e. assembly of trap team including independent witnesses & their mutual introduction, exhibition of the complaint & factum of verification, production of bribe amount of Rs. 50,000/- by the complainant, application of phenolphthalein powder on the bribe amount and explanation cum demonstration of the purpose & significance of its use, CC No. 84/2023 CBI v. Rahul Giri 2/163 mutual personal search by the team members etc. 1.3 It is further its case that a trap team comprising of Suresh Chandra Kushwah (TLO), S.K.Pandey, Vijay Desai, Vikrant Tomar, Rajendra Kumar Choudhary (all Inspectors), Sumit Kumar, Aakash Kr Srivastav (both Sub Inspectors) & subordinate staff alongwith complainant & independent witnesses Sh. Vipul Kumar & Sh. Mohit Mathur, Jr Assistant, Delhi Jal Board, was constituted for the purpose of laying a trap. DVR was produced by Insp. Rajendra Kumar Choudhary and Sh. Vipul Kumar produced the CBI brass seal which was handed over to him on completion of verification. The complainant produced 100 GC notes of denomination of Rs. 500/- each totaling Rs. 50,000/- for delivery to the accused which were treated by Insp Vijay Desai with phenolphthalein powder. A demonstration was also given by him to all present, to explain the purpose & significance of use of phenolphthalein powder and its chemical reaction with solution of sodium carbonate and water.
1.4 It is its case that the personal search of the complainant was conducted by witness Sh. Mohit in the presence of other independent witness/trap team members and nothing was left in his possession except his mobile phone. The tainted bribe amount of Rs.50,000/- was then put in the left side front pocket of the trouser worn by the complainant by independent witness Sh. Vipul Kumar after ensuring that nothing incriminating was left in his possession. Complainant was directed not to touch the said tainted bribe amount and to hand over the same to the accused or to someone else on the directions of the accused, on CC No. 84/2023 CBI v. Rahul Giri 3/163 his specific demand and not otherwise. He was further directed to accompany accused and meet the Depot manager Abhishek Jain to ascertain the demand of bribe money on his part.
1.5 It is its case that a new memory card 16 GB SD card was arranged and inserted in the DVR in the presence of independent witnesses and the functioning of the DVR was explained to the complainant & the independent witnesses and the introductory voices of both the independent witnesses was recorded after ensuring the blankness of the DVR and the memory card. All the CBI team members, the complainant and both the independent witnesses washed their hands with soap and water. Sh. Vipul Kumar was directed to act as a shadow witness and remain as close to the complainant, as possible to try to overhear conversation and see the likely transaction of bribe money. The complainant was directed to give a signal by rubbing his face by both his hands or by giving a call from his mobile phone to mobile phone No. 8527481864 of the TLO, once the transaction of bribe was done.
1.6 It is its case that after reaching near the Nand Nagri Bus Depot, the DVR was then kept in the left pocket of the shirt worn by complainant in switched on, recording and hold mode. The complainant was instructed to go & meet the accused inside the Nand Nagri Bus Depot and shadow witness Shri Vipul Kumar was directed to follow the complainant discreetly to overhear and see the transaction of bribe. The CBI team members and the witness Mohit Mathur took suitable positions in and around the premise of the Nand Nagri Depot office in discreet manner CC No. 84/2023 CBI v. Rahul Giri 4/163 whereas shadow witness Vipul Kumar was seen following the complainant while entering the Nand Nagri Depot. SI Aakash Shrivastav was also seen following complainant discreetly and the complainant was seen going upstairs, entering first floor of the Nand Nagari Depot office.
1.7 It is its case that after some time the complainant came out of the building of the Nand Nagri Depot office with a person, later identified as the accused and they both stood in front of temple situated at the gate of Nand Nagri Depot and thereafter, sat on the stairs of temple facing the road. After having some conversation, the complainant took out the tainted bribe amount of Rs 50,000/- from his front left pant pocket and extended the same with his left hand which was accepted by the accused, handled by both his hands and thereafter accused kept the same in front right pant pocket worn by him.
1.8 It is its case that since it was decided during pre-trap proceedings that the complainant would further meet & confirm about the demanded money from Shri Abhishek Jain, Depot Manager, the complainant did not give the signal. Thereafter the complainant & the accused entered Nand Nagri Depot office and the trap team along with the independent witnesses followed them by keeping safe distance. The complainant along with accused went to the canteen situated on the first floor of Nand Nagari Depot office where the accused was seen talking to two other persons in the canteen in the presence of the complainant. Thereafter they all left the canteen and after sometime accused returned to the canteen and then went inside the kitchen area of CC No. 84/2023 CBI v. Rahul Giri 5/163 the canteen. Thereafter the accused came out of the canteen and went to Room No. 10 at the first floor where on the way the complainant was waiting. After sometime, the complainant & the accused headed towards the cabin of Abhishek Jain, Depot Manager and accused was seen entering the cabin of Abhishek Jain and within a few minutes he came out. Thereafter, the complainant was seen writing something on a sheet of paper and then both of them again entered the cabin of Abhishek Jain. Within a few minutes, the accused could be seen leaving cabin of Abhishek Jain and soon after the complainant also left the cabin of Abhishek Jain. At this moment, the complainant gave pre- decided signal, i.e. rubbed his face with his both hands which was seen by SI Askash Srivastav. Immediately, SI Aakash Srivastav alerted TLO who subsequently alerted all the CBI team members including both the independent witnesses. The complainant pointed towards the accused through gesture and he was apprehended in Room No 04 at first floor of Nand Nagar Depot Office.
1.9 It is further its case that all the other team members rushed towards the spot, accused was challenged by the TLO for demanding & accepting a bribe amount of Rs.50,000/- from the complainant on behalf of Abhishek Jain, Depot Manager for revocation of his suspension upon which he got perplexed and kept mum. Accused was caught hold by his left & right wrists by SI Sumit Kumar and Mohit Mathur respectively. In the meantime, DVR was taken from the complainant and recording was switched off by SI Sumit Kumar. On enquiry by the TLO, the complainant informed him that at around 12:33 Hrs, he gave CC No. 84/2023 CBI v. Rahul Giri 6/163 the bribe to the accused who kept the bribe amount of Rs 50,000/- in his right front pant pocket of jeans worn by him. The search of accused was carried out by independent witness Vipul Kumar, however, the bribe money of Rs 50,000/- was not found in his possession upon which he was repeatedly asked where he has hidden the bribe money of Rs. 50,000/- or if he had handed over it to some other person, however, he kept on denying taking any bribe from the complainant and scuffled with CBI Team.
1.10 It is its case that on inquiry, accused admitted having accepted bribe from the complainant and further disclosed that he handed over the bribe money to one Umesh Kashyap, Contractor of the canteen located on the same floor (i.e. 1st floor) for safe custody. Immediately, Inspector Vijay Desai, SI Sumit and Sh. Mohit Mathur rushed to the canteen and on enquiry, Sh. Umesh Kashyap admitted having received a bundle of G.C. notes of Rs 500/- (later on the amount was confirmed to be Rs. 50,000/-) for keeping it safe and that accused would collect the same after an hour or so. In the meantime, the office of Shri Abhishek Jain, Depot Manager was secured by Insp. S.K Pandey and CBI team members, where one person was found present. Shri Umesh Kashyap was also brought to the room of Sh Abhishek Jain, Depot Manager and subsequently the accused was also brought there.
1.11 It is its case that at around 14:00 Hrs, the search of Umesh Kashyap was carried out by Sh. Vipul Kumar and tainted bribe amount of Rs. 50,000/- was recovered from the right front pant pocket worn by him, in presence of independent witness CC No. 84/2023 CBI v. Rahul Giri 7/163 Mohit Mathur and the complainant. The said recovered tainted bribe money was counted by both the witnesses and found to be Rs 50,000/- (100 GC notes of Rs. 500/-each).
1.12 It is further its case that the recovered GC notes were tallied and found to be matching in toto with the distinctive numbers mentioned on the "Annexure-A in the Pre-Trap Memo dated 27.02.2023. Both the independent witnesses tick marked against the details of G C notes and again signed on the "Annexure-A. On directions of TLO, the tainted bribe money was kept in an envelope and sealed with the CBI brass seal. The said envelope was marked as "Trap Money in RC-05(A)/2023"
and was signed by both the witnesses and the TLO.
1.13 It is its case that a fresh colourless solution of Sodium Carbonate was prepared in a clean glass tumbler in presence of both the independent witnesses and the complainant. On the direction TLO, the accused dipped his right hand fingers into the said solution and the colour of the solution turned pink in colour and the said pink solution was transferred into a clean glass bottle, capped, covered with white cloth, tied with tag, sealed and marked as "RHW of Rahul Giri" denoting Right Hand Wash. A paper label was also pasted on the bottle and both the witnesses and the TLO signed on the paper label.
1.14 It is its case that again, a fresh colourless solution of Sodium Carbonate was prepared in another clean glass tumbler in presence of both the independent witnesses and the complainant. On the direction of TLO accused dipped his left hand fingers into CC No. 84/2023 CBI v. Rahul Giri 8/163 the said solution and the colour of the solution turned pink and the said pink solution was transferred into a clean glass bottle, capped, covered with white cloth, tied with tag sealed and marked as "LHW of Rahul Giri" denoting Left Hand Wash. A paper label was also pasted on the bottle and both the witnesses and the TLO signed on the paper label.
1.15 It is its case that again, a fresh colourless solution of Sodium Carbonate was prepared in another clean glass tumbler in presence of both the independent witnesses and the complainant. On the direction TLO, Sh. Umesh Kashyap dipped his right hand fingers into the said solution and the colour of the solution turned pink and the said pink solution was transferred into a clean glass bottle, capped covered with white cloth, bed with tag, sealed and marked as "RHW of Umesh denoting Right Hand Wash. A paper label was also pasted on the bottle and both the witnesses and the TLO signed on the paper label.
1.16 It is its case that again a fresh colourless solution of Sodium Carbonate was prepared in another clean glass tumbler in presence of both the independent witnesses and the complainant. On the direction of TLO, Umesh Kashyap dipped his left hand fingers into the said solution and the colour of the solution turned pink and the said pink solution was transferred into a clean glass bottle, capped, covered "LHW of Umesh" denoting Left Hand Wash. A paper label was also pasted on the bottle and both the witnesses and the TLO signed on the paper label CC No. 84/2023 CBI v. Rahul Giri 9/163 1.17 It is also its case that again, a fresh colourless solution of Sodium Carbonate was prepared in another clean glass tumbler in presence of both the independent witnesses and the complainant. On the direction of TLO, the reverse side of right front pant pocket of the accused was dipped into the said solution and the colour of the solution turned light pink. The said pink solution was transferred into a clean glass bottle, capped, covered 'Pant Wash of Rahul Giri" denoting Right Rear Pant Pocket Wash. A paper label was also pasted on the bottle and both the witnesses and the TLO signed on the paper label. The inner side of the said front right pant pocket of pant was signed by both the independent witnesses and the TLO. The said pant was kept in a yellow colour envelope and sealed with CBI brass seal, which sealed yellow envelope was marked as Case RC:-
RC- 05(A)/2023 PANT of Rahul Giri" and was signed by both the independent witnesses and the TLO.
1.18 It is its case that similarly, another fresh colorless solution of Sodium Carbonate and fresh water was prepared in a clean glass in the presence of both the witnesses. Another pant was arranged for Sh. Umesh Kashyap and thereafter the right front pant pocket of Umesh Kashyap was dipped into the said solution and the colour of the solution turned light pink. The said solution was transferred into a clean glass bottle, capped covered with white cloth, tied with green color tag and sealed. A paper label was also pasted on the bottle and marked as 'Pant Wash of Umesh" denoting front Right Pant Pocket Wash. Both the independent witnesses and the TLO signed on the paper label.
The inner side of the said front right pant pocket of pant was CC No. 84/2023 CBI v. Rahul Giri 10/163 signed by both the independent witnesses and the TLO. The said pant was kept in a separate yellow colour envelope which was sealed with CBI brass seal, which was marked as "Case No:-
RC-05(A)/2023- PANT of UMESH" and was signed by both the independent witnesses and the TLO.
1.19 It is further its case that a hand written application (one sheet) of the complainant addressed to Depot Manager, DTC Nand Nagari Depot was found on the office table of Shri Abhishek Jain's chamber and the same was taken in CBI possession for the purpose of investigation. This application was initialed & marked by Shri Abhishek Jain, Depot Manager with date 27.02.2023 and was also signed by both above mentioned independent witnesses.
1.20 It is its case that complainant was asked by the TLO to narrate the sequence of events that took place after he was sent to meet the accused and he informed that he went inside the Nand Nagar Depot office and called the accused 06 times, between 12:20 hrs and 12:24 hrs, on his mobile phone on 8882136468 from 9213979873 but accused did not respond. The complainant further stated that he found accused sleeping in the rest room at the first floor and he woke him up and informed that he had come. Both of them came outside the Nand Nagri Depot and sat on the stairs of the temple situated outside the Nand Nagri Depot and had tea. During the brief conversation, the accused demanded the bribe money from the complainant, upon which the complainant took out the tainted bribe amount of Rs 50,000/- from his left front pant pocket by his left hand and CC No. 84/2023 CBI v. Rahul Giri 11/163 extended towards the accused which was accepted by him with both his hands and thereafter, he kept the said bribe amount in his right front pant pocket worn by him. Then both the complainant and accused again went inside the Nand Nagri Depot, Ist floor and found that Abhishek Jain's chamber was locked. Accused called Abhishek Jain on his mobile phone and had a conversation. After disconnecting the call, accused informed him that DM sahib (Abhishek Jain) is in meeting and would come in some time. The complainant further stated that they both went to canteen where the accused talked to two persons namely Vikas Sharma, Conductor and Jitender, Driver (under suspension).
Thereafter they all left the canteen and within a few minutes, accused went to canteen and came back to him in few minutes where the complainant was waiting in the corridor on the 1st Floor. The complainant further stated that they both went to meet Sh. Abhishek Jain but his chamber was found locked and at about 13:00 Hrs complainant made a call to the TLO conveying the situation in coded language and informed that Shri Abhishek Jain would come at around 13:30 Hrs. He along with accused went to Room 10 and waited there and after sometime Abhishek Jain arrived in his office and he & accused went to his chamber. After coming out, as instructed by accused, he wrote an application for revocation of his suspension and then they entered the office of Abhishek Jain, however, on entry Abhishek Jain had a brief conversation during which on enquiry, complainant replied that he did not get the bus on time from the workshop and because of this he was unable to perform his duties on time. Abhishek Jain asked his assistant to call someone from workshop to enquire about the reason for delay and asked the complainant to come CC No. 84/2023 CBI v. Rahul Giri 12/163 back alongwith the workshop personnel. Thereafter the complainant gave the pre-decided signal to SI Aakash Srivatava.
1.21 It is its case that on the direction of TLO, SI Aakash Srivastav, prepared Rough site plan of the spot where the transaction of bribe had taken place and it was signed by both the independent witnesses, SI Aakash Srivastav and the TLO. The memory card used for recording the conversation in this proceedings was taken out from the DVR and investigation copy of the same was prepared in the official laptop with the help of Write Blocker in the presence of both the independent witnesses. The memory card was then kept in its original cover which was marked as "Q-2 in RC- 05(A)/2023" and the said cover was signed by both of the witnesses and the TLO. The said original cover containing memory card was kept in a brown envelope, sealed with the CBI brass seal and marked as Q-2 in RC-05(A)/2023). The said sealed envelope was also signed by both the witnesses and the TLO.
1.22 It is its case that the accused was arrested in presence of both independent witnesses vide separate Arrest- Cum-Personal Search Memo at around 01.00 AM on 28.02.2023 and intimation of his arrest was given to his wife namely Smt. Meenakshi by the TLO over her mobile as mentioned in the Arrest cum Personal Search Memo.
1.23 It is further its case that a new sealed memory card was opened in the presence of independent witnesses for the purpose of recording of specimen voice of the accused and the CC No. 84/2023 CBI v. Rahul Giri 13/163 complainant. The said memory card was inserted in the DVR and after ensuring their blankness the introductory voices of both the independent witnesses were recorded in the said memory card through DVR before recording the sample voice of the accused. Thereafter Specimen voices of accused and complainant were recorded in the Memory Card through DVR in the presence of both the independent witnesses. After that, the concluding voices of independent witnesses were also recorded. The Memory Card was then taken out from the DVR and kept in its cover which was marked as "S- A&C in RC-05(A)/2023". The cover was signed by both the independent witnesses, accused, complainant and the TLO. The cover containing the memory card was then put in a separate colour envelope which envelope was sealed with CBI brass seal and marked as S-A&C in RC-05(A/2023) and both the independent witnesses, accused, complainant and TLO signed the same.
1.24 It is its case that the DVR used for recording the conversations during the course of verification and trap proceedings was sealed in a brown envelope after the TLO and the witnesses signed over it. The envelope was marked as 'DVR in RC-05(A/2023 and both the independent witnesses and the TLO signed on the sealed brown envelope.
1.25 It is its case that voices of accused recorded during verification and Trap proceedings in Q-1 & Q-2 were identified by complainant and officials working in the office of the accused. It is its case that hand washes of accused and Sh Umesh Kashyap & right front pant pocket of the accused and right front pant CC No. 84/2023 CBI v. Rahul Giri 14/163 pocket of Umesh Kashyap were sent to CFSL in sealed condition for seeking expert opinion and vide Report no. CFSL/DELHI/306/CHEM/17/23 dated 12.05.2023 CFSL Expert gave positive opinion for presence of the phenolphthalein powder in the washes.
1.26 It is its case that original memory cards Q-1, Q-2. S- A&C and DVR, used in verification and trap proceedings were sent to CFSL in sealed condition for seeking expert opinion on comparison of voices of accused with his specimen voices and vide report no. CFSL/DELHI/553/PHY/104/23 dated 12.06 2023, CFSL Expert gave positive opinion on comparison of voices. The voice of accused in recorded conversation Q-1 & Q-2 were identified by witnesses.
1.27 It is its case that the recorded conversation between the accused and complainant recorded in the DVR was heard which corroborated the version of complainant, however, the conversation between the complainant and Sh. Abhishek Jain Depot Manager did not reveal anything incriminating, including any offer or demand of bribe by the complainant or Abhishek Jain.
1.28 It is its case that the recorded conversation, recovery of tainted amount of Rs. 50.000/- establishes the offence of demand & acceptance of bribe by the accused. Sh Umesh Kashyap, Contractor at the Canteen, Nand Nagan DTC Depot, Delhi had no knowledge of demand & acceptance of bribe by accused, as such no criminality is attributed to him. Moreover Sh.
CC No. 84/2023 CBI v. Rahul Giri 15/163 Umesh Kashyap has clearly stated that amount Rs. 50,000/- was handed over to him by the accused and his statement under section 164 Cr.P.C. was got recorded before the court.
1.29 It is further its case that CDRs, CAFs and Cell ID Charts alongwith certificates u/s 65B Indian Evidence Act of mobile number 8882136468 of accused, mobile number 9213979873 of complainant and mobile number 8700388678 of Umesh Kashyap for the period 01.02.2023 to 28.02.2023 clearly proves that the accused called the complainant.
1.30 It is its case that the investigation, statement of witnesses, documentary evidence and exhibits clearly reveal demand, acceptance and recovery of bribe on the part of accused and thus discloses commission of offence punishable under section 7A of Prevention of Corruption Act 1988 (As amended in 2018) by him. The sanction of prosecution u/s 19 of Prevention of Corruption Act 1988 (amended in 2018) in respect of accused is not required because section 7A does not necessitate the Sanction.
Cognizance & Charge
2. Vide order dated 23.08.2023, the cognizance of the offence was taken and the accused summoned by the Ld. Predecessor of this court. After compliance of Section 207 Cr.P.C, the arguments on charge were heard and vide order dated 18.10.2023, charge for the offence punishable under Section 7(A) of the PC Act, 1988 was framed against the accused to which he CC No. 84/2023 CBI v. Rahul Giri 16/163 pleaded not guilty and claimed trial.
Prosecution Evidence
3. In order to prove its case, prosecution examined 19 witnesses in all.
3.1 So as to avoid repetition and for the sake of brevity, the deposition of these witnesses is not being adverted to in detail herein below as the same has been dealt with at length at the time of appreciating the factual as well as the legal aspects of the case and while considering the rival contentions raised at bar viz-a-viz their deposition. Nonetheless their role, sum & substance of their deposition has been discussed succinctly herein below.
3.2 PW1 Vipul Kumar (independent witness from Central Water Commission, R.K. Puram, New Delhi) supported the prosecution case while deposing in detail about his participation in the verification proceedings conducted on 24.02.2023. He deposed about his introduction to the complainant, the preparations made for the purpose of verification of the complaint which included arrangement of new memory card & DVR, recording of his introductory voice, visit to Nand Nagri DTC Bus Depot with CBI team etc. and the subsequent verification as was carried out on the said day. He proved the verification memo as Ex. PW1/A. Similarly he deposed about having participated in the trap proceedings on 27.02.2023, the preparation made at the time of pre-trap proceedings which included production of bribe amount CC No. 84/2023 CBI v. Rahul Giri 17/163 of Rs. 50,000/- in the denomination of Rs. 500/- (100 GC Notes) by the complainant, their counting, noting of the particulars of the GC Notes, arranging of memory card, recording of his and other independent witness Sh. Mohit Mathur's introductory voice in the same, demonstration of use of phenolphthalein powder etc. He proved the pre-trap memorandum as Ex. PW1/B. He also proved the trap proceedings conducted at Nand Nagri DTC depot in detail and the handing over of the bribe amount by the complainant to the accused and its subsequent recovery from Umesh Kashyap at the instance of the accused which was seized in envelope Ex. P-1 vide Ex. PW1/C. He also proved the site plan of the spot of the trap as Ex. PW1/D and the post-trap proceedings which included the hand washes of the accused & Umesh Kashyap and washes of their trousers as well as the seizure of the washes and the trousers. He identified the respective washes as Ex. P-2 to P-9 while also identifying the envelopes in which trousers were sealed as Ex. PW1/E and Ex. PW1/F. He also identified the application written by the complainant, lying on the table of Abhishek Jain as Ex. PW1/G and the memory cards Q-1 & Q-2 as used in the verification and trap proceedings along with the envelopes in which they were seized as Ex. PW1/H, Ex. P-10, Ex. PW1/I and Ex. P-11 respectively while also identifying the respective voices contained in the memory card, which included his voice and that of the complainant & the accused, while the same were played during the trial. He further identified the DVR used in the proceedings as Ex. P-12 as well as its seizure vide Ex. PW1/J and memory card Ex. P-13 in which his introductory voice as CC No. 84/2023 CBI v. Rahul Giri 18/163 well as that of Sh. Mohit Mathur apart from the sample voice of the accused & the complainant was recorded and identified the voices during the trial when the said memory card was produced vide Ex. PW1/K. He also proved the arrest of the accused vide Ex. PW1/L, the post-trap memo as Ex. PW1/M and the voice cum transcription memo dated 25.04.2023 as Ex. PW1/N. 3.3 PW2 Sh. Bharat Bhushan Senior Scientific Assistant, Chemistry Division, CFSL, New Delhi proved the chemical examination report no. CFSL/DELHI/306/ CHEM/ 17/23 dated 12.05.2023 (D-11) as Ex. PW2/A and also identified his signatures on the six cloth wrappers of the bottles as were produced in green colour envelope sealed with the seal of CFSL, Delhi having description "CFSL/DELHI/306/CHEM/17/23 RC-5(A)/2023-DLI" as Ex. PW2/B (colly). He also identified six glass bottles as Ex. P-2 to Ex. P-7.
3.4 PW3 Sh. Ajeet Singh Tomar (complainant) while completely supporting the prosecution case deposed about his suspension, while working as Driver in DTC, as well as initial demand of Rs. 70,000/- by accused Rahul Giri for getting his suspension revoked and its reduction to Rs. 50,000/- on his request. He proved his complaint as Ex. PW3/A and deposed about the verification, the pre-trap, trap and post-trap proceedings in terms of the prosecution case and on exactly similar lines as deposed by PW1 Sh. Vipul Kumar.
3.5 PW4 Sh. Shashank Tyagi Alternate Nodal Officer, Vodafone Idea Ltd. proved that vide covering letter Ex. PW4/A CC No. 84/2023 CBI v. Rahul Giri 19/163 (colly) he had provided CDR, CAF alongwith two certificates under Section 65-B of Indian Evidence Act to the CBI, while further deposing that the mobile number which has been mentioned in the CAF belongs to the person whose name is mentioned in the CAF.
3.6 PW5 Sh. Prakash Saxena, Nodal Officer, Reliance Jio Info Com Ltd. proved that vide letter dated 07.07.2023 i.e. Ex. PW5/A he had provided the CDR, certified copy of E-KYC, CAF, certificate under Section 65B of Indian Evidence Act for CAF and CDR and cell ID Chart of mobile numbers 8700388678 and 8882136468 for the period from 01.02.2023 till 28.01.2023.
He deposed that he had provided CAF & aadhar card as mentioned at page no. 3 and 4 respectively pertaining to mobile no. 8882136468 in the name of accused Rahul Giri and also provided CAF & aadhar card as mentioned at page no. 5 & 6 pertaining to mobile no. 8700388678 in the name of Smt. Ram Devi. The E-CAFs of mobile numbers 8700388678 and 8882136468 are Ex. PW5/B (colly).
He deposed that he had also provided CDR pertaining to mobile no. 8882136468 for the period 01.02.2023 till 28.02.2023 from page no. 7 to 39 and CDR pertaining to mobile no. 8700388678 for the period 01.02.2023 till 28.02.2023 from page no. 40 to 71 i.e. Ex. PW5/C (colly).
He further deposed that he had also provided cell ID charts pertaining to mobile no. 8700388678 & 8882136468 (mentioned at page no. 72 to 82) vide Ex. PW5/D (colly) and also provided certificate under Section 65B of Indian Evidence Act i.e. Ex. PW5/E in respect of CDRs and CAFs of mobile no. 8700388678 CC No. 84/2023 CBI v. Rahul Giri 20/163 & 8882136468 for the period 01.02.2023 till 28.02.2023 as he had retrieved the data from his official computer.
3.7 PW6 Sh. Brahamdev Sharma, ATI, DTC Nand Nagri Depot deposed that he was posted as a ATI in Nand Nagri Depot, Delhi in the month of February 2023 and knows accused Rahul Giri (correctly identified) as he was/is posted as conductor in DTC as well as Sh. Abhishek Jain who was the Depot Manager at Nand Nagri Depot. He deposed that he had visited CBI office twice for the purpose of investigation and had heard the recordings, identified the voice of Sh. Abhishek Jain.
When File No. 230224_1555 in SD Card Ex. P-10, from envelope Ex. PW1/H, was played in the court he identified the voice of complainant Ajeet Singh Tomar and as far as the other voice is concerned, he deposed that the same appears to be that of accused Rahul Giri and voluntarily stated that when he was called at the CBI office, he was asked to identify the voice of accused Rahul Giri, however, he told the CBI officials that he had never worked with Rahul Giri and had joined the office only on 02.02.2023, was not conversant with his voice, however, on the asking of the CBI who told him that the voice is of Rahul Giri, he identified the voice as that of accused Rahul Giri in the conversation/recording.
Similarly was deposed by this witness when File no. 230227_1216_01 in SD card Ex. P/11, from envelope Ex. PW1/I, was played in the court, he also identified the voice of Sh. Abhishek Jain in the said recording/conversation. He proved the voice identification cum transcription memo-2 alongwith transcripts Q-1 & Q-2 as Ex. PW6/A (colly). He also proved his CC No. 84/2023 CBI v. Rahul Giri 21/163 enquiry report dated 17.02.2023 in the file of DTC DISC-14, Sh. Ajeet Singh. Batch no. 26825, TN No. 68830 pertaining to the complainant as Ex. PW6/B (colly).
Thereafter this witness was cross-examined by Ld. PP for the CBI during which he denied all the suggestions given to him except that accused was a conductor.
3.8 PW7 Ms. Anuradha Dey, Senior Scientific Assistant (Photo), Government Scientific Expert, CFSL, DFSS, MHA, New Delhi (Presently attached with Physics Division, CFSL, DFSS, New Delhi) proved her examination report dated 12.06.2023 qua the recordings and the voice samples, in various exhibits sent to her, as Ex. PW7/B while also proving letter as Ex. PW7/A and envelopes as Ex. PW7/C, Ex. PW7/D, Ex. PW7/E and Ex. PW7/F vide which various exhibits i.e. the memory cards and DVR were sent back to the CBI.
3.9 PW8 Sh. Jai Kumar Kanda, Senior Assistant, Delhi Jal Board, ZRO, South-West-1, New Delhi proved the proceedings during which Abhishek Jain heard the recordings and identified the voice in his presence and in the presence of Insp. Mukesh Kumar Mishra as well as preparation of voice identification cum transcript memo-3 alongwith transcript in RC No. 05(A)/2023-DLI as Ex. PW8/A (colly).
Thereafter this witness was cross-examined by Ld. PP for the CBI and during his cross-examination he denied most of the suggestions given to him except that he had signed Ex. PW8/A (colly) after going through the contents of the same and also admitted having made statement Ex. PW8/B to the IO.
CC No. 84/2023 CBI v. Rahul Giri 22/163
3.10 PW9 Sh. Abhishek Jain, Depot Manager, DTC
identified the accused as contractual employee of DTC and deposed that after he was arrested by the CBI in bribery case he had issued his termination orders. He proved that he had suspended the complainant for dereliction of duty vide suspension order, notesheets/file of DTC DISC-14 of Ajeet Singh Tomar (running into 8 pages) i.e. Ex. PW6/B (colly) and also proved letter dated 20.02.2023, suspension memo issued by the then Dealing Assistant as well as Enquiry Report dated 17.02.2023 alongwith duty detail sheets from 11.8.2022 till 31.01.2023 written by Sh. Braham Dev Sharma, ATI qua the complainant part of Ex. PW6/B (colly). He also identified page no. 7 of Ex. PW6/B (colly) while stating that the same is 'Ok duty' of Drivers of Nand Nagri Depot, DTC, Delhi and also identified circular dated 11.10.2018 (page no. 8 of Ex. PW6/B colly) issued by Deputy Chief General Manager (Operation) Sh. B.P. Nigam regarding 'Ok duty' to be performed by the drivers.
He proved the personal Bio-Data of the accused as Ex. PW9/A and letter dated 04.3.2023 vide which his services were terminated as Ex. PW9/B. He failed to identify the voice in Ex. P-10 part of Ex. PW7/C when the same was played in the court. When memory card Q2 Ex. P-11 part of Ex. PW1/I was played in the court he identified his voice and that of the complainant in the same. He also proved the preparation of voice cum identification transcript memo Ex. PW8/A. This witness was cross-examined by Ld. PP for the CBI and he denied all the suggestions given to him.
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3.11 PW10 Sh. Kishan Pal, Retired Senior Clerk, Nand
Nagri Depot, DTC, Delhi proved the office file, maintained with DTC, pertaining to the suspension of the complainant as Ex. PW6/B (colly).
3.12 PW 11 Sh. Chandra Prakash, Driver, Nand Nagri Depot, DTC, Delhi deposed that he was a DTC employee and was suspended by Sh. Abhishek Jain on 19.10.2022 which he revoked after 3 days and for which he had not paid any bribe to any official of DTC.
3.13 PW12: Sh. Rajendra Kumar Choudhary, Inspector, CBI, ACB, New Delhi is the verification officer, who conducted the verification of complaint Ex. PW2/A and he deposed in terms of the prosecution story on similar lines as deposed by PW1, PW3 and PW17.
3.14 PW13 Sh. Vijay Kumar (Token No. 64630), Bus Driver, DTC Nand Nagri Depot, Delhi though identified his signatures on voice identification cum transcription memo-II alongwith transcript Q1 and Q2 i.e. Ex. PW6/A (colly), however, he failed to support the prosecution story on material counts and failed to recognize the voice in recordings in Ex. P-10 and Ex. P-11. He was cross-examined by Ld. PP for the CBI but he kept on denying the suggestions put to him during the cross- examination.
3.15 PW14 Sh. Umesh Kashyap deposed that in February 2023 he was running Canteen at Nand Nagri DTC Depot, Delhi CC No. 84/2023 CBI v. Rahul Giri 24/163 and knows accused Rahul Giri as he was working as Conductor in the above DTC Depot. He deposed that on 27.02.2023 at around 1:00 pm, accused and complainant Ajeet Singh Tomar also came to the canteen and at around 1:30 pm, he noticed Rs. 50,000/-lying on a plastic bag containing sugar and he picked up the said amount and put it in his pocket. He deposed that he had told the CBI that the accused had kept the money there and that the said money was recovered from his pocket. He deposed about his hand wash, pant wash as well as the hand wash & pant wash of accused Rahul Giri and the solutions turning pink and their seizure. He identified his pant/grey jeans as Ex. PW1/F and also deposed that his statement Ex. PW14/A was recorded by the then Ld. Additional Chief Metropolitan Magistrate while voluntarily stating that he was told by the IO as to what is to be stated before the Ld. Additional Chief Metropolitan Magistrate. He deposed that mobile No. 8700388678 belongs to him and he was using the said number, which is registered in his wife Smt. Ram Devi's name, in February 2023 as well.
He was cross-examined by Ld. PP for the CBI and he admitted that accused Rahul Giri had come to him at around 1:00 pm on 27.02.2023 with Rs. 50,000/- which were in the denomination of Rs. 500/-, however, he denied that he had handed over the said amount to him and voluntarily stated that accused Rahul Giri had come with Ajeet Singh Tomar to his canteen and he does not know which one of them had kept the notes on the plastic bag containing sugar. He admitted that accused Rahul Giri had on earlier occasions also kept money with him and that he had seen Ajeet Singh Tomar for the first time that day. He kept on denying the most of the suggestions of CC No. 84/2023 CBI v. Rahul Giri 25/163 Ld. PP for the CBI except for admitting that the money was recovered from his trouser by Sh. Vipul Kumar who was working in Jal Shakti, that when his statement Ex. PW14/A was recorded, only he was present in the chamber alongwith the Ld. Additional Chief Metropolitan Magistrate, the IO was outside the chamber and that before his statement was recorded, the Ld. Additional Chief Metropolitan Magistrate had asked him whether the statement was made by him voluntarily and without any force, pressure etc. 3.16 PW15 Sh. Suresh Chandra Kushwaha, Trap Laying Officer proved the FIR of the present case as Ex. PW15/A and deposed about the pre-trap, trap proceedings and post-trap proceedings exactly on the similar lines as deposed by PW1, PW3 and PW17. He also identified the Vivo M-2037 phone of the accused as Ex. PW15/A and also proved the screenshots of the phone as Ex. PW15/B (colly). He further identified two mobile phones make Oppo and Samsung of Sh. Abhishek Jain as Ex. PW15/M1 & Ex. PW15/M2 and deposed that vide production cum seizure memo dated 27.02.2023 Ex. PW15/C he had seized 05 files Ex. PW6/B (colly) from Sh. Akhtar Ali, Assistant Cashier, O/o Depot Manager, DTC, Nand Nagri, Delhi.
3.17 PW16 Sh. Vikas Sharma, Conductor, IP Depot, Delhi claimed that he does not remember anything about the present case after he fell sick in July 2024. He was cross- examined by Ld. PP for the CBI and except for admitting that he visited the CBI office on 26.04.2023, met Sh. Mukesh Kumar Mishra, Inspector CBI who had made certain inquiries from him, CC No. 84/2023 CBI v. Rahul Giri 26/163 that he had told him that he was DTC Marshal doing Dak related work at Nand Nagri Depot, Delhi and that he had also told the IO that he knows Sh. Abhishek Jain, Depot Manager and accused Rahul Giri (correctly identified) he denied remaining suggestions given by Ld. PP for the CBI. He disowned his statement Mark PW16/A. 3.18 PW17 Sh. Mohit Mathur, Junior Assistant, Delhi Jal Board, Delhi (independent witness) deposed that on 27.02.2023 he joined the proceedings of the present case and deposed on the similar lines as deposed by PW1, PW3 and PW15 as regards the pre-trap, trap and post-trap proceedings. He also produced the brass seal Ex. PW17/A which was handed over to him after conclusion of trap proceedings.
3.19 PW18 Sh. Harjeet Singh Jaspal, DHJS presently posted as Joint Registrar, High Court of Delhi proved proceedings dated 06.07.2023 on orders of the then Ld. CMM of the even date as Ex. PW18/B and Ex. PW18/A respectively.
3.20 PW19 Sh. Mukesh Kumar Mishra, Insp. ACB, CBI, New Delhi is the IO of the case who filed the charge sheet after conclusion of investigation. He proved on record the various documents as proved by the prosecution witnesses including complainant, independent witnesses, verification officer and the TLO etc. Statement of Accused CC No. 84/2023 CBI v. Rahul Giri 27/163
4. After conclusion of prosecution evidence, statement of accused Rahul Giri under Section 313 Cr.P.C was recorded wherein he denied the entire incriminating evidence put to him while claiming that he has been falsely implicated. Accused did not lead any evidence in his defence, despite opportunity given.
Findings
5. I have heard the rival contentions raised at bar by Ld. PP for the CBI as well as the Ld. Defence Counsel, carefully considered & examined the evidence recorded in the matter and perused the documents placed on record by the prosecution in this case. I have also gone through the written arguments filed by the respective parties and the supporting case laws.
5.1 Ld. Defence Counsel Sh. Baljinder Singh relied upon Ashish Jain Vs. Makrand Singh AIR 2019 SC 546, Beeralinga Vs. State of Karnataka (GM-RES) dated 07.06.2024, Bharat Lal Saini Vs. State of Rajasthan SB Criminal Miscellaneous (petition) No. 8406/2022 dated 04.08.2023, Nanhar Vs. State of Haryana (2010) SLT 19 SC, State of Maharashtra Vs. Wasudeo Ramchandra Kaidalwar (1981) 3 SCR 675 and Mahabir Prasad Verma Vs. Dr. Surinder Kaur (1982) 3 SCR 607 in support of his arguments.
5.2 Ld. PP for the CBI Ms. Jyoti Solanki relied upon N. Narsinga Rao Vs. State of AP Supreme Court 2001 Cri.L.J. 515, Madhukar Bhaskar Rao Joshi Vs. State of Maharashtra 2000 AIR SCW 4018, State of UP Vs. M.K. Anthony AIR 1985 SC 48 SC, CC No. 84/2023 CBI v. Rahul Giri 28/163 Bhogni Bhai Vs. State of Gujarat AIR 1983 SC 759, Faquira Vs. State of UP AIR 1976 SC 915, State of Punjab Vs. Karnial Singh AIR 2003 SC 3609, State of Haryana Vs. Tek Singh 1999 SC, Neeraj Dutta Vs. State Govt. of NCT of Delhi 2022, B. Hanumantha Rao Vs. State of Andrapradesh AIR 1992 SC 1201, Iqbal Musa Patel Vs. State of Gujarat 2011 SCC (Cri) 654, Gurubachan Singh Vs. Satpal Singh 1990 SCC (Cri) 151 and D. Sampatha Vs. Inspector of Police dated 19.08.2016 in support of her arguments.
5.3 In nutshell the allegations against the accused are that he obtained an undue advantage i.e. a sum of Rs. 50,000/- from complainant Sh. Ajeet Singh Tomar, as a motive/reward to induce/influence Sh. Abhishek Jain, Depot Manager, DTC Nand Nagri Depot by corrupt & illegal means for getting the suspension of the complainant revoked and thus thereby he committed offence punishable u/s 7A of the PC Act. With such being the allegations it will be trite to refer to the provisions of Section 7A of PC Act which reads as under:-
"7A. Taking undue advantage to influence public servant by corrupt or illegal means or by exercise of personal influence.-- Whoever accepts or obtains or attempts to obtain from another person for himself or for any other person any undue advantage as a motive or reward to induce a public servant, by corrupt or illegal means or by exercise of his personal influence to perform or to cause performance of a public duty improperly or dishonestly or to forbear or to cause to forbear such public duty by such public servant or by another public servant, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine."
5.4 Undue advantage has been defined in Section 2(d) of PC Act according to which it means any gratification whatever, CC No. 84/2023 CBI v. Rahul Giri 29/163 other than legal remuneration. Gratification is explained in Explanation (a) to Section 2(d) which provides 'the word "gratification" is not limited to pecuniary gratifications or to gratifications estimable in money'.
5.5 A careful reading of Section 7A of the PC Act reveals that for the prosecution to establish its case of commission of offence under the said section, the following essential ingredients/facts are required to be duly established on record, that too beyond reasonable doubt:-
A. Accused had accepted or obtained or attempted to obtain any undue advantage from another person;
B. The undue advantage was accepted or obtained or attempted to be obtained as a motive or reward to induce a public servant, by corrupt or illegal means or by exercise of his personal influence, to perform or to cause performance of a public duty improperly or dishonestly or to forbear or to cause to forbear such public duty by such public servant or by another public servant.
5.6 On a careful consideration and appreciation of the entire material available on record, I am of the considered opinion that the prosecution has been able to successfully bring home the guilt against the accused.
A. Accused had accepted or obtained or attempted to obtain any undue advantage from another person.
Complaint
CC No. 84/2023 CBI v. Rahul Giri 30/163
6. What set the machinery of criminal law into motion in the present case was the handwritten complaint Ex. PW3/A of Sh. Ajeet Singh Tomar (PW3). According to Ex. PW3/A, the complainant who was working as a driver in Delhi Transport Corporation, Nand Nagri Depot was suspended on 21.02.2023. After his suspension he was approached by accused Rahul Giri who told him that in case he gave him Rs. 50,000/- he can get his suspension revoked and he also told him that he has already talked to the Depot Manager Sh. Abhishek Jain in this regard. As the complainant did not want to pay undue advantage to the accused, he gave complaint Ex. PW3/A to the CBI on 24.02.2023. The image of complaint Ex. PW3/A is reproduced hereunder:-
CC No. 84/2023 CBI v. Rahul Giri 31/163
Proof of complainant's suspension
6.1 Before adverting to the evidence adduced by the
prosecution in support of its claim of acceptance of undue advantage by the accused it would be worthwhile to highlight that as far as the suspension of the complainant is concerned, the same stands duly proved on record. PW9 Sh. Abhishek Jain, Depot Manager, DTC who had issued the suspension order proved the said order along with entire note sheet/file bearing no. DTC DISC-14 on record as Ex. PW6/B (colly) as was also proved by PW6 Sh. Brahamdev Sharma, who was posted as ATI at the said DTC Depot, who further proved his enquiry report dated 17.02.2023 in this regard. In fact the factum of suspension of complainant was never really disputed during the trial, hence there is no need to dwelve much into the aspect of the complainant's suspension.
6.2 Nonetheless Ld. Defence Counsel did argue that according to PW3's examination in chief he was suspended on 21.02.2023 and on the same day accused Rahul Giri called him, informing him about his suspension whereas during his cross- examination he admitted that he was suspended on 20.02.2023. It was argued that this contradiction assumes significance and creates doubt upon the prosecution story, however, I find no merits in the said arguments. It stands proved from Ex. PW6/B (colly) that Depot Manager Sh. Abhishek Jain vide noting dated 20.02.2023 directed immediate suspension of complainant and he was placed under suspension w.e.f. 21.02.2023 till further orders. What is material is the suspension of the complainant, which CC No. 84/2023 CBI v. Rahul Giri 32/163 stands duly proved on record and not whether the suspension came into effect on 20.02.2023 or 21.02.2023. It was this suspension of the complainant, which the accused exploited to his undue advantage as the evidence on record duly proves. Also the CDR of the accused and the complainant's mobile numbers, as has been discussed in detail in this judgment, duly establishes that a call was indeed received by the complainant from the accused on 21.02.2023 thereby corroborating the complainant's version.
6.3 The fact that accused had demanded undue advantage of Rs. 50,000/- from him, for getting his suspension revoked, which he did not want to pay and for which he had given complaint Ex. PW3/A to CBI on 24.02.2023 was duly proved on record by complainant/PW3 when he deposed as under:-
"I am presently working as Driver in DTC. At present I am posted at Nand Nagari where I am working since 2014.
On 21.02.2023, I was suspended by the Depot Manger Abhishek Jain on account of lack of discharge of official duties. On the same date, I got this information regarding my suspension from accused Rahul Giri on a telephone call. Rahul Giri at that time was also working in DTC Depot Nand Nagri as Conductor. He said that if I meet him on the same date and talked to him, he may get my suspension revoked. I told him that I could not meet him on that date because I was attending a marriage in my native village and would meet him after returning from there on some other date.
On 23.02.2023, I came back to Delhi and went to Nand Nagri DTC Bus Depot where I met accused Rahul Giri. Accused told me that he could get my suspension revoked provided I pay him Rs. 70,000/-. I asked him to whom said money is required to be paid. He told that Abhishek Jain who was the Depot Manager at that time, would get said work done provided said payment is made. Rs. 70,000/- was demanded for both accused and the Depot Manager. I asked him to reduce some amount but he said CC No. 84/2023 CBI v. Rahul Giri 33/163 he cannot do that as the money is to be paid to the Higher Officers of DTC. He told that the other driver who was also suspended on the same date with me had already paid Rs. 55,000/-. On my insistence, accused reduced the amount to Rs. 50,000/-. He asked me to arrange the money and contact him. Since I was not inclined to pay the bribe amount, therefore, I decided to make a complaint to CBI. On 24.02.2023, I approached CBI office at CGO Complex where I met Superintendent of Police, ACB, CBI, New Delhi. I informed him about the aforementioned demand raised from me. Thereafter, I made a written complaint to Superintendent of Police on the same date.
At this stage, the witness is shown D-1 i.e. the complaint dated 24.02.2023 and the witness says that it is the same complaint which he lodged with CBI and he identified his signature on the same at point A. The complaint is now exhibited as Ex. PW3/A. After receiving said complaint from me, SP called Inspector Rajender Choudhary and handed over said complaint with direction to proceed in the matter."
Complaint's verification 6.4 After the complaint Ex. PW3/A was received at the CBI office, same was endorsed to PW12 Insp. Rajendra Kumar Choudhary (Verification Officer) for verification, which was conducted in the presence of complainant, independent witness Sh. Vipul Kumar (PW1) apart from other CBI officials and which proceedings duly established & confirmed the demand of undue advantage by the accused. The detailed deposition of PW12 regarding the verification proceedings is reproduced hereunder:-
"In the year 2023, I was posted at ACB New Delhi as Inspector. On 24.02.2023, I received a complaint filed by Sh. Ajit Singh Tomar addressed to SP CBI, ACB, New Delhi which was endorsed to me by SP CBI for verification.
At this stage, attention of the witness has been drawn to Ex. PW 3/A (D-1) i.e. complaint dated 24.02.2023. After going through the same, witness states that this is the same complaint which was marked to me for verification vide endorsement made by the SP, CBI at point B. CC No. 84/2023 CBI v. Rahul Giri 34/163 For verification of aforesaid complaint, I alongwith SI Aakash Srivastava, complainant Ajit Singh Tomar and independent witness Sh. Vipul Kumar assembled at office of CBI ACB New Delhi at about 13:45 hours. The independent witness, namely, Sh. Vipul Kumar was arranged by the Duty Officer, CBI ACB New Delhi. The independent witness and complainant were introduced to each other. The purpose of assembly was explained to all the members of verification team. The complaint was shown and read over to the independent witness.
The complaint was filed by the complainant regarding demand of Rs. 50,000/- made by one Rahul for getting the suspension of the complainant revoked. As per the complaint, Rahul had told the complainant that he had talked to Abhishek Jain, Depot Manager in this regard. As the complainant did not want to pay the said bribe amount, therefore, he made the aforesaid complaint.
In order to verify the aforesaid complaint, new black colour DVR make Sony and a fresh memory card of 16 GB make Simmtronics in sealed cover were arranged from. The functioning of the DVR was explained to the complainant and independent witness. After ensuring blankness of the DVR, micro SD Card was taken out from the sealed packing and same was inserted into DVR. It was also ensured that the micro SD Card was blank. Thereafter, the said DVR was set in such a manner that the recordings get directly stored in the installed memory card. After ensuring the blankness of the memory card, introductory voice of the independent witness was recorded in the memory card through DVR.
In order to verify the allegations made in the complaint, I alongwith SI Aakash Srivastava, complainant and independent witness left the CBI Office at about 3 p.m. for DTC Nand Nagri Depot, Delhi. We reached the said place at around 3.50 p.m. The vehicle was parked at a safe distance near DTC Nand Nagri Depot. The complainant was briefed that he has to converse with the suspect as regards the allegations made in the complaint. The complainant advised us that in case, the independent witness accompanied him, the suspect might get suspicious about his presence and, therefore, it was decided that the independent witness will remain with the CBI team. The DVR was put on recording and hold mode and put in the left side pocket of the shirt worn by the complainant. The complainant was also wearing the jacket over the shirt worn by him. At around 4 p.m., the complainant was sent inside DTC Nand Nagri Depot. After about 20 minutes, the complainant returned to us. Thereafter, DVR was taken from the complainant and it was switched off. All of us came back to the CBI Office. The complainant was asked CC No. 84/2023 CBI v. Rahul Giri 35/163 to narrate about the conversation and what all transpired between him and the suspect. The complainant told us that he went to the first floor of the said Depot, where the office of the Depot Manager is situated and from the outside the office / cabin, he called the suspect on his Mobile phone asking to meet him. Upon this, the suspect came out of the office / cabin of the Depot Manager and had conversation with the complainant, wherein he told the complainant that he can get his suspension revoked and demanded Rs. 50,000/- for the same while also informing the complainant that he had talked to the Depot Manager in this regard. The complainant also told us that he tried to negotiate the amount with the suspect but he did not agree.
The memory card was taken out from the DVR and the help of Write Blocker, investigation copy of the recording contained in the memory card was prepared. The memory card was put back in its original plastic case / cover, thereafter, it was put in a original paper cover and it was mentioned on the cover as "Q-1 in CO-6/2023". The same paper cover was signed by SI Aakash Srivastava, complainant Ajit Singh Tomar, independent witness Vipul Kumar and myself. Thereafter, it was put in a brown paper envelope and again the above particulars were mentioned on the paper envelope and all four of us signed the same. Thereafter, it was sealed with the seal of CBI brass seal bearing no. 21 and seal was handed over to independent witness with directions to produce the same as and when required. At that time, impression of the seal was taken on separate sheets. Thereafter, I prepared the verification memo of the entire proceedings, same was read over to the complainant, independent witness and other CBI team members and all of us signed on the same as regards the correctness of the verification memo / proceedings."
6.5 The verification memo, prepared after the verification was concluded, stands duly proved on record as Ex. PW1/A and it bears the signatures of all the concerned persons associated with the verification i.e. complainant, independent witness, SI Akash Srivastava and PW12. The verification proceedings were also duly proved by PW1 Sh. Vipul Kumar and the complainant (PW3) whose deposition while being on exactly similar lines as that of PW12 duly corroborated the prosecution story of demand of undue advantage by the accused. The relevant CC No. 84/2023 CBI v. Rahul Giri 36/163 portion of deposition of PW1 and PW3 in this regard is reproduced hereunder:-
PW1 "In the year 2023, I was posted in Central Water Commission, R.K. Puram, New Delhi as Stenographer Grade-D. In February, 2023, I got instructed by my department to visit CBI office to witness some CBI proceedings of some case. On 24.02.2023, I visited CBI office, Lodhi Road, New Delhi where I met Inspector Choudhary who introduced me with the complainant Sh. Ajeet Singh Tomar and was informed that he had filed a complaint with the CBI and I was read over and explained the contents of said complaint. In the said complaint, the complainant had alleged that he was under suspension from the DTC Bus Depot of Nand Nagri, Delhi and from him, a demand of bribe amounting to Rs. 50,000/- had been raised by one contractual conductor Rahul Giri for revoking the suspension of the complainant.
At this stage, the witness is shown D-1 and he identified it the same complaint which was read over to him by CBI on 24.02.2023.
I was told by the Inspector that the aforementioned complaint had to be verified and for that purpose, a new memory card and DVR were arranged by SI Mr. Srivastava. My introductory voice was recorded in the blank memory card. Thereafter, alongwith the complainant and Inspector Rajinder Choudhary and SI Akash Srivastava left the CBI office for Nand Nagri DTC Bus Depot.
The complainant was directed to meet the accused and talk to him to ascertain about the demand of bribe and the DVR in the recording mode was kept in the upper pocket of the shirt of the complainant. Thereafter, the complainant went inside the DTC Bus Depot and we all other persons remained sitting in the car outside the DTC Bus Depot. The complainant came back towards the parked vehicle where we were sitting after about 20 minutes. SI Akash Srivastava by gesture asked the complainant not to speak anything and thereafter, the DVR was taken out from the complainant's pocket and was switched off. Thereafter, the complainant was asked as to what had happened inside the DTC Bus Depot and he narrated what all transpired inside the DTC Bus Depot. The conversation contained in the DVR was played to confirm about the allegation but on account of the noise in the surrounding area, it was thought to play and hear the same after reaching the CBI office. Thereafter, we all left for CBI office and reached there at around 5:30 pm where again the recording in the DVR was played and heard. The CC No. 84/2023 CBI v. Rahul Giri 37/163 transcript of said recorded conversation was prepared by the Verification Officer. The contents of the transcription were also read over to me to verify the correctness and my signature was taken on the same. Thereafter, the memory card was sealed and the same was signed by me, the complainant and the verification officer. After sealing the memory card, the seal was handed over to me with instruction to bring the same on 27.02.2023."
PW3 "After giving the written complaint to SP, ACB, CBI, the same was forwarded to the Inspector Rajender Choudhary of CBI, ACB, New Delhi for verification. Thereafter, Inspector Rajender Choudhary called the independent witness Sh. Vipul Kumar and he was introduced with me in respect of the complaint filed by me before ACB, CBI, New Delhi. Thereafter, officer of the CBI brought a new DVR and also brought a new SD Card. It was verified from the witnesses and the SD card is in sealed condition and thereafter, the same was opened and inserted into the DVR. For checking the blankness of the said SD Card, the introductory voice of the independent witness was recorded.
Thereafter, vehicle was arranged by the CBI officers in which Inspector Rajender Choudhary, independent witness Sh. Vipul Kumar, Sh. Akash Srivastava and myself left the CBI office for Nand Nagri Depot, Delhi-110093 at around 3:00 pm. After reaching at Nand Nagri Depot, the DVR was switched on by Sh. Akash Srivastava and the same was kept in my pocket. Thereafter, I entered inside the depot and then I gave a telephonic call to accused Rahul Giri on his mobile phone and informed him that I had reached there. Upon which, the accused assured that he reach there within 2 minutes. After few minutes, I saw the accused coming out from the room of Sh. Abhishek Jain (Depot Manager) and he met me on the first floor of the depot. Accused told me that Sh. Abhishek Jain (depot manager) was demanding Rs. 60,000/- for revocation of my suspension. I request him to reduce the amount but he said that one other suspended driver had already paid Rs. 55,000/- for his revocation and I can be given further concession of Rs. 5,000/-. Therefore, he finally asked me to arrange Rs. 50,000/-. I requested him for 2 days time for arranging said money. Thereafter, I came back to the CBI team and the DVR was taken from me and was switched off. Thereafter, I alongwith the CBI team reached back to CBI office. One investigation copy of the recorded conversation contained in the DVR was prepared by the CBI. The transcription of the conversation was prepared from the investigation copy CC No. 84/2023 CBI v. Rahul Giri 38/163 of the memory card. The original memory card was taken out from the DVR and was sealed with the seal of CBI. The seal of CBI thereafter was handed over to witness Sh. Vipul Kumar with the instruction to keep in safe custody and gave directions to produce the same as and when required.
At this stage, attention of the witness is drawn to verification memo alongwith transcription already exhibited as Ex. PW1/A (colly) D-2. After going through the same, the witness identifies his signature at point B on each page."
6.6 Thus PW1, PW3 and PW12, while narrating in detail, proved the verification proceedings which squarely established demand of undue advantage by the accused and which necessitated the registration of case FIR i.e. Ex. PW15/A. Their consistent testimony unambiguously proves that accused Rahul Giri had indeed raised a demand of undue advantage/Rs.
50,000/- for getting the complainant's suspension revoked.
6.7 During the course of arguments Ld. Defence Counsel vehemently argued that serious doubts emerge on record on PW12's claim of having verified the complaint or having allegedly visited Nand Nagri Depot on 24.02.2023 for the said purpose. It was argued that PW12 and for that matter prosecution failed to prove on record any daily diary register entry in support of its claim that he had visited Nand Nagri Depot for verification. It was argued that such entries are usually made at the CBI office whenever any official leaves or returns to CBI office for the purpose of any investigation and argued that failure on the part of CBI/prosecution to prove the same proves the falsity of its case. It was also argued that according to PW12 he along with the complainant & independent witness had gone to Nand Nagri Depot in the official vehicle and he admitted that office CC No. 84/2023 CBI v. Rahul Giri 39/163 record/log is maintained as regards the use of official vehicle, however, no such record was ever produced on record. Moreover PW12 failed to provide the vehicle number in which they had gone or the name of its driver. It was argued by Ld. Defence Counsel all these loopholes/lacuna in the prosecution case proves that no verification was ever carried out. However, I find absolutely no merits in the arguments of Ld. Defence Counsel.
6.8 The fact that the verification was carried out on 24.02.2023 by PW12 in the presence of the complainant (PW3) and independent witness (PW1) stands duly proved on record. Both PW1 & PW3 consistently proved the verification proceedings and their detailed cross-examination could not bring anything contrary on record. No doubt had the daily diary register been proved on record it would have further boosted the prosecution case but merely because it was not so proved that by itself does not have any adverse effect on the prosecution case considering the due corroboration by PW1 & PW3. Moreover, as explained by PW12 it is the Duty Officer's duty to make the entry in the daily diary register and not his. If the defence indeed wanted to falsify the prosecution case and prove that no verification was carried out then the defence could have made endeavors to examine the Duty officer or called for the necessary record and having not done so I find no merits in the defence arguments.
6.9 As far as failure on the part of PW12 to provide the vehicle number in which they went for verification or the name of its driver is concerned, suffice would be to say that after a gap CC No. 84/2023 CBI v. Rahul Giri 40/163 of more than 1 and ½ years PW12 was not expected to remember these minute details. With passage of such a long period/time, a witness is bound to forget these insignificant details more so considering the duties of PW12 who is involved in number of similar investigations and thus cannot be expected to remember such trivial details.
6.10 It was also argued that neither PW12 nor PW1 or PW3 could produce the gate pass which might have been prepared when PW1 and PW3 visited the CBI office and that the same itself proves that PW1 & PW3 had not visited the CBI office on 24.02.2023. As far as this argument is concerned, PW12 categorically stated that no pass is required by any complainant (PW3). As far as PW1 is concerned, he categorically stated that his pass was prepared when he visited the CBI office on 24.02.2023 and I find no reason whatsoever to disbelieve him. PW1 is an independent witness and defence failed to explain or prove on record any motive PW1 might have weighed with him to depose falsely against the accused. Being not known to the accused, having no enmity against him I find no reason why PW1 would depose falsely against him. Also if the defence doubted PW1's claim, it could have asked him to produce his gate pass, nonetheless, even if PW1 failed to produce the same no doubt whatsoever would have been created upon the prosecution case considering the consistent testimony of PW1, PW3 and PW12. It would have been too much of an expectation to expect PW1 or for that matter any person to retain a gate pass for more than 1 and ½ years.
CC No. 84/2023 CBI v. Rahul Giri 41/163
6.11 No doubt as against PW12's claim that " However,
no pass is required by any complainant", PW3 claimed "my name was entered in the visitors register and a pass was issued to me", however, these two different statements do not have any bearing on the merits of the case. They are at best minuscule contradictions which can be easily ignored as they do not touch the merits of the case. Nonetheless if the defence doubted PW3's claim nothing stopped it from summoning the visitors register from CBI office and having not done so the defence's arguments loose steam. PW3's presence at the CBI office was duly proved by PW1 apart from PW12.
6.12 It was also one of the arguments of Ld. Defence Counsel that the prosecution story suffers from various contradictions and infirmities proving its falsity. It was argued that though during his deposition PW3 claimed that the accused had initially demanded a sum of Rs. 70,000/- from him, for allegedly getting his suspension revoked, which he allegedly later on reduced to Rs. 50,000/-, however, the said fact is missing in his complaint Ex. PW3/A. It was argued that the said improvement made by PW3 during his deposition, contradiction in his statement viz-a-viz Ex. PW3/A itself proves that PW3 was making a false claim and that he had given a false complaint to CBI. As far as this argument is concerned, no doubt it is nowhere mentioned in Ex. PW3/A that the accused had initially demanded Rs. 70,000/- which he reduced to Rs. 50,000/- on the complainant's request, as was otherwise deposed by PW3, however, just because the said fact is missing in Ex. PW3/A does not even remotely imply that the complainant was deposing CC No. 84/2023 CBI v. Rahul Giri 42/163 falsely or that he had given a false complaint to the CBI.
6.13 The deposition of the complainant is neither an improvement nor a contradiction viz-a-viz Ex. PW3/A. The complaint was a very brief account of the complainant's grievances i.e. demand of undue advantage by the accused, while during his deposition he stated in detail, in an elaborated manner what exactly transpired between him and the accused. A complaint is/need not be an encyclopedia i.e. it need not be a comprehensive or detailed account of allegations. The purpose of a complaint is to set the investigation into motion and it need not include every single fact or allegations or details which necessitated it.
6.14 It will be pertinent to highlight that the fact that initially the demanded amount was Rs. 70,000/- which was later on reduced to Rs. 50,000/- was also stated by the complainant to the IO in his statement u/s 161 Cr.P.C. as recorded on 18.03.2023 which further proves that the statement made in the court was not a false one or an improvement. The relevant portion of the same is reproduced hereunder:-
"I further state that on 23.02.2023 I met Sh Rahul Giri at Nand Nagari Depot. He said that Rs. 70 thousand is demanded from the higher officers for revoking your suspension. He told me that Rs. 55 thousand had already received from other Driver and for you Rs. 50 thousand is last"
6.15 Hence I am of the considered opinion that the complainant made a truthful statement in the court, just that it was more elaborate viz-a-viz complaint Ex. PW3/A, however, merely because it was more detailed, elaborate it does not mean CC No. 84/2023 CBI v. Rahul Giri 43/163 that the complaint Ex. PW3/A was a false one or that PW3 was deposing falsely.
6.16 Ld. Defence Counsel while pointing towards PW3's statement, made during the cross-examination i.e. "It is correct that in the Transcript Ex. Q-1, there is nothing about demand of Rs. 60,000/-" vehemently argued that in view of the said statement the entire prosecution story came crashing down as neither the allegations made in complaint Ex. PW3/A could be substantiated nor the testimony of PW3 regarding the demand of undue advantage. It was also argued that during his cross-examination the complainant also stated as "It is wrong to suggest that the accused did not demand Rs. 60,000/- from me in the name of the Depot Manager..........Again Said: I do not exactly remember today but when I had initially met him, before the day when the recording/verification was done, he had raised demand of Rs. 70,000/- and then he reduced it to Rs. 60,000/- on my request", though, as per the prosecution case the demanded amount was Rs. 50,000/- and not Rs. 60,000/-. Ld. Defence Counsel also pointed out the statement of the complainant, made during his examination in chief which read as "Accused told me that Sh. Abhishek Jain (depot manager) was demanding Rs. 60,000/- for revocation of my suspension"
and argued that the contrary statements of the complainant regarding the demanded undue advantage/amount itself proves that no amount whatsoever was ever demanded by the accused and that the fact that there is nothing in the transcript Ex. Q-1 about the amount further renders the entire prosecution case story highly unreliable & untrustworthy.
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6.17 As far as the said arguments are concerned, no
doubt according to statement u/s 161 Cr.P.C. dated 18.03.2023 of PW3 the initial demanded amount was Rs. 70,000/- and during his examination in chief as recorded on 25.11.2023 the complainant had stated that the initial demanded amount was Rs. 70,000/- but in the later part of his examination in chief and the cross-examination he claimed that the initial demanded amount was Rs. 60,000/-, however, the said minor contradiction does not affect the prosecution story in any manner whatsoever. This contradiction is bound to occur with the passage of time and it is also a matter of common knowledge that a witness is liable to get confused, or mixed up during cross-examination or when interrogated later on. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub- conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him. Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment. Sometimes there could even be a deliberate attempt to offer embellishment and sometime in their over-anxiety they may give slightly exaggerated account. Reliance may be placed upon the observations made by the Hon'ble Apex Court in case titled as Rana Pratap v. State of Haryana AIR 1983 SC 680, Hari Singh v. Sukhbir Singh (1988) 4 SCC 551), Leela Ram CC No. 84/2023 CBI v. Rahul Giri 45/163 (Dead) through Duli Chand v. State of Haryana, (SC) 1999(4) R.C.R.(Criminal) 588, Bharwada Bhoginbhai Hirjibhai v. State of Gujarat AIR 1983 SC 753, Sohrab v. State of Madhya Pradesh AIR 1972 SC 2020 and State of U.P. v. Anil Singh AIR 1988 SC 1998.
6.18 The minor contradictions as highlighted by Ld. Defence counsel are bound to occur with the passage of time. Human memories are apt to blur with passage of time. A person cannot be expected to give a parrot like version or depose with mathematical precision. Only a tutored witness can depose so. Error due to lapse of time/lapse of memory have to be given due weight-age/ due allowance. By and large a witness cannot be expected to possess a photographic memory and to recall the minute details of an incident. It is not as if a video tape is replayed on the mental screen. As the mental abilities of a human being cannot be expected to be attuned to absorb all the details of the incident, minor discrepancies are bound to occur in the statements of witnesses. Unless the defence is able to establish that the discrepancies or short coming or for that matter lacunas in the prosecution case have prejudiced the accused or rendered the prosecution case unreliable or untrustworthy, the same cannot be formed the basis of acquitting the accused.
6.19 It is settled proposition of law that even if there are some omissions, contradictions and discrepancies, the entire evidence cannot be disregarded. It is the duty of the court to sift through the evidence and ascertain as to whether the evidence CC No. 84/2023 CBI v. Rahul Giri 46/163 minus the contradictions, improvements, embellishments inspire confidence and is sufficient to convict the accused. Undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution case. It has been held in Zamir Ahmed Vs. The State 1996 Cri.L.J. 2354 as under:-
"It would be a hard nut to crack to find out a case which is bereft of embellishment, exaggeration, contradictions and inconsistencies. The said things are natural. Such contradictions and inconsistencies are bound to creep in with the passage of time. If the witnesses are not tutored they would come out with a natural and spontaneous version on their own. The two persons on being asked to reproduce a particular incident which they have witnesses with their own eyes would be unable to do so in like manner. Each one of them will narrate the same in his own words according to his own perception and in proportion to his intelligence power of observation."
6.20 What is material is that a demand of undue advantage was raised by the accused and that the undue advantage/the amount demanded was ultimately accepted by him and it was recovered at his instance, as has been discussed in detail in the later part of this judgment. The acceptance of the undue advantage, its recovery completely puts to rest the Ld. Defence Counsel's arguments regarding the contradictions in PW3's deposition qua the initial demanded amount i.e. whether it was Rs. 70,000/- or Rs. 60,000/- or Rs. 50,000/-.
6.21 As far as arguments that admittedly there is nothing about demand of Rs. 60,000/- in transcript Ex. Q-1 suffice would be to say that though amount of Rs. 60,000/- does not appear in the initial part of the transcript Ex. Q-1 or for that matter recorded in Ex. P-10, however, the amount of Rs.
CC No. 84/2023 CBI v. Rahul Giri 47/163 60,000/- does appear in the later part of the transcript. The image of relevant portion is reproduced hereunder:-
6.22 In fact a careful & thorough reading, examination of the transcript Ex. Q-1, as has been discussed in detail in the later part of this judgment, as well as recording Ex. P-10 sufficiently explains the reason behind the minor inconsistency in the testimony of PW3 regarding the exact/actual demanded amount. It is/was a long conversation wherein the complainant kept on requesting the accused to reduce the demanded amount/undue advantage. He requested the accused to reduce it to Rs. 40,000/-, 30,000/- etc. citing his inability to pay the amount of Rs. 50,000/- as demanded by the accused but the accused did not budge and refused to reduce the amount. This conversation, negotiation regarding reduction of amount sufficiently explains why the contradiction regarding the amount emerged on record which otherwise does not have any adverse effect on the prosecution case which inspires confidence on material particulars. Moreover, while admitting, during his cross-examination, that there is nothing in transcript Ex. Q-1 about demand of Rs. 60,000/- the complainant went on to add "Again Said: I do not exactly remember today but when I had initially met him, before the day when the CC No. 84/2023 CBI v. Rahul Giri 48/163 recording/verification was done, he had raised demand of Rs.
70,000/- and then he reduced it to Rs. 60,000/- on my request". The conversation as recorded in Ex. P-10, its transcript Ex. Q-1 is of the day of the verification which was conducted after the complaint Ex. PW3/A was marked to PW12 and prior to this the accused had already called the complainant on 21.02.2023 and demanded the undue advantage from him which he did not intend to pay and hence the complaint was given. The said fact stands established on record from the CDRs of the accused and the complainant. This itself explains why the amount of Rs. 70,000/- does not figure in Ex. P-10. Add to it the fact that the testimony of PW3 was recorded almost after 10 months of the complaint & its verification which is/was a long period for any witness/ individual to forget/mix certain minute details/facts.
Proof of verification proceedings by CDRs and recordings in memory cards, its transcript 6.23 The ocular testimony of PW1, PW3 and PW12 regarding the demand of undue advantage by the accused stands duly corroborated by the technical and scientific evidence on record. As duly proved by PW1, PW3 and PW12, on the day of verification after the CBI team including them reached Nand Nagri Depot, the complainant made a call to the accused informing him that he has reached there upon which the accused assured the complainant that he will be there with him within 2 minutes. The fact that this call was exchanged between the accused and the complainant stands squarely established on record through Ex. PW4/A and Ex. PW5/A to Ex. PW5/E i.e. the CC No. 84/2023 CBI v. Rahul Giri 49/163 CDRs, CAFs. Cell ID charts etc. of their mobile numbers. The Cell ID chart also establishes that at the time of verification the accused and the complainant were indeed present at the same spot i.e. Nand Nagri Depot DTC which further proves that they had met on the day of verification, which confirmed the demand of undue advantage. The location of the accused's mobile phone is being shown at Wilson Bhati (9711334455) A-3/409 and 410, Nand Nagri Delhi 110093. Even otherwise it is not defence's case that on the date and time of verification, the accused was not present at Nand Nagri Depot or that he was present somewhere else.
6.24 PW4 Sh. Shashank Tyagi proved that mobile bearing no. 9213979873 belongs to complainant Sh. Ajeet Singh Tomar and that he had provided its CDR & CAF along with certificate u/s 65B Indian Evidence Act 1872 vide Ex. PW4/A to the CBI. Similarly, PW5 proved that mobile no. 8882136468 was issued in the name of accused Rahul Giri and that he had provided the CDR, CAF, Cell ID Chart along with certificate u/s 65B Indian Evidence Act 1872 vide Ex. PW5/A to Ex. PW5/E to the CBI. Ex.PW4/A and Ex. PW5/C duly establishes the exchange of call between the complainant and the accused on 24.02.2023 which call as stands duly established from the testimony of PW1, PW3 and PW12 was made after the CBI team reached Nand Nagri Depot for the purpose of verification of the complaint. It was pursuant to said call that the complainant & the accused met and the conversation between them, wherein demand of undue advantage was raised by the accused, got recorded in Ex. P-10 with the help of DVR Ex. P-12.
CC No. 84/2023 CBI v. Rahul Giri 50/163
6.25 In fact not only on 24.02.2023 but the CDRs prove
that even on 21.02.2023 the accused had called the complainant on his mobile phone at around 10.18 in the morning and it stands established from the testimony of PW3 as well as his complaint Ex. PW3/A that accused had called him informing him about the suspension and raised demand of undue advantage for getting the same revoked. The CDRs thus duly corroborates the complainant's version or else why this call was made could not be explained by the accused. At the time when this call was made the location of the accused's mobile phone as per Ex. PW5/D (colly) is of Nand Nagri DTC Depot and thus this call record corroborates the complainant's version that the accused informed him about his suspension on 21.02.2023. Being present at the Depot, the accused after becoming aware of the complainant's suspension not only telephonically informed him but also exploited the said information to his advantage by demanding Rs. 50,000/- from the complainant for getting his suspension revoked.
6.26 Defence miserably failed to impeach the credit of PW4 & PW5 during their cross-examination. Nothing could be elicited during their cross-examination nor any material was brought on record by the defence which could even remotely challenge the authenticity, genuineness of the documents proved by PW4 and PW5 or their deposition with respect to those documents and I accordingly no reason to doubt these documents i.e. Ex. PW4/A and Ex. PW5/A to Ex. PW5/E. In fact during his examination u/s 313 Cr.P.C. when PW4 and PW5's deposition was put to the accused along with the CDRs, CAF etc. as proved CC No. 84/2023 CBI v. Rahul Giri 51/163 by them the accused merely stated " It is a matter of record". Hence not only the accused did not dispute the testimony of PW4 & PW5 or the record proved by them but there was also no dispute or denial by the accused as regards the calls exchanged between him and the complainant on the day of verification as stands proved vide Ex. PW4/A and Ex. PW5/A to Ex. PW5/E. Rather once the accused stated "It is a matter of record" that's an indirect admission of the prosecution case based upon the testimony of PW4 and PW5. Also during the cross-examination of PW3 not even a single suggestion was given to him that no call was exchanged between him and the accused on the day of verification.
6.27 The fact that call was exchanged between the accused and the complainant on the date of verification, in addition to the deposition of PW4 & PW5 as well as the documents Ex. PW4/A & Ex. PW5/C also stands duly established from the recorded conversation in memory card Ex. P-10 as was used in the verification proceedings. As proved by PW1, PW3 and PW12 for the purpose of verification a new/original duly packed memory card i.e. Ex. P-10 along with DVR i.e. Ex. P-12 was arranged by PW12 which memory card, after ensuring its blankness, was inserted in the DVR and the introductory voice of PW1 was recorded in the same. When the complainant went to meet the accused, the DVR was kept in recording & hold mode and kept in the left side pocket of shirt worn by the complainant. After the complainant entered the Nand Nagri Depot he made a call to the accused, as is also reflected in Ex. PW4/A & Ex. PW5/C, as discussed above in detail and then met him in person.
CC No. 84/2023 CBI v. Rahul Giri 52/163 Whatever talks took place between the accused and the complainant were duly recorded in Ex. P-10 and after the complainant came back, the DVR was switched off, the memory card Ex. P-10 taken out of it and after preparation of the investigation copy of the recording in Ex. P-10 the same was kept back in its original plastic case & seized by PW12. The seal used for the said purpose was duly handed over to PW1, which he subsequently produced at the time of trap proceedings. The detailed deposition of PW1, PW3 and PW12 in this regard has already been discussed above.
6.28 The first transcript of the conversation recorded in Ex. P-10 was duly proved on record as Ex. PW1/N. This transcript was prepared on the basis of the investigation copy of Ex. P-10 in the presence of the complainant and the independent witnesses as was duly proved by PW19 Insp. Mukesh Kumar Mishra as well as PW1, PW3 and PW17. At the time when the transcript was prepared, the recorded conversation in Ex. P-10 was heard and the complainant & the independent witness/PW1 identified their respective voices, each others voice and that of accused Rahul Giri. The relevant portion of deposition of the prosecution witnesses in this regard is reproduced hereunder:-
PW19 "At this stage, attention of the witness is drawn to the voice identification cum transcription memo-1 dated 25.04.2023 which is already Ex. PW1/N (D8). After going through the same, the witness states that the investigation copy of recorded conversation marked as Q1 & Q2 were played in his presence as well as in the presence of Sh. Ajit Singh Tomar (complainant), Sh. Vipul Kumar & Sh. Mohit Kumar (both independent witnesses). After hearing the said conversation, Ajit Singh Tomar identified his voice as well as that of the accused. Thereafter both independent CC No. 84/2023 CBI v. Rahul Giri 53/163 witnesses identified their voices as per the recordings. A memo was prepared in the said proceedings. Thereafter, memo and the Hindi typed transcription of the recorded conversation was prepared and signed by Sh. Vipul Kumar at point A, Sh. Mohit Mathur at point B, complainant Sh. Ajit Singh Tomar at point C and myself at point D on each page as the said transcription was prepared exactly in terms of the recorded conversation and matched with the same."
PW1 "At this stage, the witness is shown the voice cum identification memo dated 25.4.2023 D-8 (Q-1 from page no. 1 to 6 and Q2 from page no. 1 to 19) upon which, the witness identifies his signature and that of Mohit Mathur at point A and B respectively. The same is now exhibited as Ex. PW1/N. ........The SD card is now inserted in the laptop brought by Ct. Finny Sam from Malkhana, CBI which is found to contain two files bearing no. 230224_1427 and 230224_1555.
File no. 230224_1427 is played in the laptop and after hearing the file, the witness identifies the same to be of his introductory voice.
File no. 230224_1555 is played in the laptop and after hearing the file, the witness identifies the voice of Ajeet and that of accused Rahul Giri in said conversation."
PW3 "Attention of the witness is drawn to D-8 which is voice identification cum transcription memo already exhibited as Ex. PW1/N. After going through the same, the witness identifies his signature on the same at point C. ........At this stage, one yellow colour envelope having endorsement CFSL/Delhi/553/PHY/104/23 (Ex. Q-1) sealed with the seal of court has been opened which is found to contain another brown colour envelope having endorsement "Q1 in CO-06/2023". The brown colour envelope already exhibited as Ex. PW1/H where the witness identifies his signature at point B is opened with the permission of the court which is found to contain one Simmtronics 16 GB Micro SD HC Card having endorsement "Q1 in CO-06/2023" already exhibited as Ex. P-10. The same bears my signature at point C. The SD card is now inserted in the laptop brought by Head Ct. Mahavir Singh from Malkhana, CBI which is found to contain two files bearing no. 230224_1427 and 230224_1555.
CC No. 84/2023 CBI v. Rahul Giri 54/163 File no. 230224_1427 is played in the laptop and after hearing the file, the witness identifies the introductory voice of Vipul Kumar.
File no. 230224_1555 is played in the laptop and after hearing the file, the witness identifies his own voice and that of accused Rahul Giri in said conversation.
PW12 "At this stage, MHC (M) has produced one yellow colour envelope already Ex. PW 7/C having endorsement CFSL/Delhi/553/PHY/104/23 (Ex. Q-1) sealed with Court seal has been opened which is found to contain another brown colour envelope having endorsement "Q1 in CO-06/2023" upon which the witness identifies his signature at point D. The same is already Ex. PW1/H. The brown colour envelope is opened with the permission of the court which is found to contain one Simmtronics 16 GB Micro SD HC Card having endorsement "Q1 in CO-06/2023". The same bears his signature at point D. The same is already Ex. P-10.
The SD card is now inserted in the laptop brought by ASI Mukesh Kumar from Malkhana, CBI which is found to contain two folders, one music folder and other private folder. Music folder is empty. The private folder upon opening, found containing another folder, namely, Sony folder. On opening the Sony folder, one folder, namely, REC_FILE. On opening the same, it is found containing two folders i.e. FOLDER01 and another RADIO01. On opening of FOLDER01, it is found to contain two MP3 files bearing no. 230224_1427 & 230224_1555.
File no. 230224_1427 is played in the laptop and after hearing the file, the witness identifies the same to be of the introductory voice of independent witness, namely, Sh. Vipul Kumar.
File no. 230224_1555 is played in the laptop and after hearing the file, the witness identifies the voice of the complainant Ajeet in said conversation.
I had heard the recording in the investigation copy of Q-1 and prepared the rough transcript accordingly."
PW17 "At this stage, the witness is shown the voice cum identification memo dated 25.4.2023 D-8 (Q-1 from page no. 1 to 8 & Q2 from page no. 9 to 27) already Ex. PW1/N upon which, the witness identifies his signature at point B, Sh. Ajeet Singh Tomar at point C and that of Sh. Vipul Kumar at point A. CC No. 84/2023 CBI v. Rahul Giri 55/163 At this stage, the witness is shown the voice identification cum transcript memo-2 dated 25.4.2023 D-9 (Q-1 from page no. 1 to 9 & Q2 from page no. 10 to 28) already Ex. PW6/A (colly) upon which, the witness identifies his signature at point C and that of Sh. Vipul Kumar at point D on each page of the said documents. The witness further states that though the other witnesses had also put their signatures in his presence, however, he cannot recognize their signatures."
6.29 When the recording in Ex. P-10 was played/heard, no discrepancy whatsoever was found in the transcript viz-a-viz the recording. The relevant images of the transcript Ex. PW1/N with the highlighted portions, are reproduced hereunder:-
CC No. 84/2023 CBI v. Rahul Giri 56/163 CC No. 84/2023 CBI v. Rahul Giri 57/163 CC No. 84/2023 CBI v. Rahul Giri 58/163 CC No. 84/2023 CBI v. Rahul Giri 59/163 CC No. 84/2023 CBI v. Rahul Giri 60/163 6.30 The transcript Ex. PW1/N and the recorded conversation Ex. P-10 leaves no doubt that a demand of undue advantage i.e. a sum of Rs. 50,000/- was indeed raised by the accused to the complainant who while raising the said demand assured the complainant that his suspension would be revoked and there would be no adverse record, noting in his service CC No. 84/2023 CBI v. Rahul Giri 61/163 file/record. The accused assured the complainant that he would be let off with merely a censure or a warning and he further assured him that he had already talked to Sh. Abhishek Jain, Depot Manager in this regard. In fact he claimed that just prior to their meeting, he had met Sh. Abhishek Jain with regard to revocation of the complainant's suspension. He told the complainant that he will get to join his duty as soon as he pays the undue advantage/Rs. 50,000/-. The transcript also reveals that at the time of raising the demand, the accused boosted/claimed that he had on earlier occasion helped another employee in a similar fashion. Also as per the transcript, during their talks the complainant told the accused that there is another person namely Vikas who can also get his suspension revoked and who had approached him in this regard upon which the accused claimed that Vikas had also told him about the same and had demanded Rs. 60,000/- while proposing to the accused that both of them can keep Rs. 5000/- each out of the same. Thus the demand of undue advantage/Rs. 50,000/- was raised by the accused with repeated assurances of getting the complainant's suspension revoked and at that time to gain the confidence of the complainant he claimed not only to have talked to Sh. Abhishek Jain in this regard but also of having helped other employees in a similar fashion. So specific, repeated assurances, impressions were given by the accused, while raising the demand, that he can induce, influence Sh. Abhishek Jain in revoking the complainant's suspension.
6.31 It will be worthwhile to point out that Vikas, whose name appears in the transcription as discussed above, was examined as PW16 and though he did not support the CC No. 84/2023 CBI v. Rahul Giri 62/163 prosecution story, on which aspect much emphasis was laid by Ld. Defence Counsel, however, PW16's turning hostile has not dented the prosecution case in any manner whatsoever as the factum of recovery of the undue advantage/Rs. 50,000/- from Sh.
Umesh Kashyap (PW14), to whom it was handed over by the accused, stands duly proved on record as has been discussed in much detail in the later part of this judgment.
6.32 Why PW16 turned hostile was for the fact that he himself was indulging in malpractices just like the accused and as discussed above he too had approached the complainant for getting his suspension revoked for which he asked Rs. 60,000/- from him. In fact on the day of trap i.e. 27.02.2023 the accused and the complainant had also met Vikas at the canteen of Nand Nagri DTC depot which further points, while corroborating the conversation in the transcript, that Vikas was also indulging in malpractices like the accused. The relevant portion of deposition of PW3 in this regard read as "Thereafter, me and the accused both went to the canteen of the depot at first floor where one suspended driver namely Sh. Jitender and one other employee who was conductor in DTC namely Vikas Sharma were also present. There the accused had some conversation with Vikas Sharma also in connection with the revocation of suspension of Jitender".
6.33 During the course of arguments Ld. Defence Counsel vehemently argued that the testimony of PW13 Sh. Vijay Kumar creates grave doubts upon the prosecution case that the voice in Ex. P-10 is of accused Rahul Giri. It was argued that CC No. 84/2023 CBI v. Rahul Giri 63/163 PW13 failed to support the prosecution case as he failed to identify the voice of accused Rahul Giri in Ex. P-10 thereby rendering the proceedings of voice identification highly doubtful. It was also argued that the other independent witnesses including PW6, PW8 and PW9 also failed to recognize the voice of accused in Ex. P-10 thereby rendering the prosecution case further highly unreliable. However, I find no merits in the said arguments. To begin with it duly stands established from the testimony of PW3 and the other material on record that the voice in Ex. P-10 is of the accused apart from that of the complainant and PW9. In view of the testimony of PW3 no further proof was required, nonetheless, PW1 as well as PW12 had also duly identified the voice of the accused in Ex. P-10. The complainant and the accused being colleagues, being posted at the same Depot and also having interacted with the accused for a long time during the verification proceedings and thus being well conversant with the voice of accused, he correctly identified his voice when Ex. P-10 and for that matter Ex. P-11 were played in the court, as has been discussed in detail above. During his cross- examination not even a single suggestion was given to PW3 that voice in Ex. P-10 and Ex. P-11 is not of accused Rahul Giri and thus PW3's deposition remained uncontroverted, unchallenged on this material aspect. In fact during his cross-examination PW3 reiterated as under:-
"On that day, I had identified the voice of the accused and witnesses from the depot were also called for identification of the voice.
On 25.4.2023, I had signed the voice identification cum transcription memo Ex. PW1/N (D-8)."
6.34 In addition to the testimony of PW3, testimony of CC No. 84/2023 CBI v. Rahul Giri 64/163 PW1 and PW12, as discussed above in detail, further sufficiently proves that voice in Ex. P-10 & Ex. P-11 is of accused Rahul Giri. Though no doubt PW1 and PW12 were not conversant with the voice of the accused prior to the day of trap, however, on the day of the trap after the apprehension of the accused and during the course of the investigation, considering the interaction between them, they did become conversant with his voice and rightly identified the same at the time when Ex. PW1/N was prepared and also during the trial. Most importantly, the law is well settled that it is the quality and not the quantity/number of witnesses that matters. Section 134 of the Indian Evidence Act does not require any minimum number of witnesses to be examined for proving a particular fact ( Sunil Kumar V. State Govt. of NCT of Delhi SC 2004 (1) Criminal CC 524, Krishna Mochi and others Vs. State of Bihar (2002) 6SCC 81).
6.35 In Ram Karan Vs. State of Rajasthan 1997 (2) FAC 131, it was held as under:-
"In our system of administration of justice no particular number of witnesses is necessary to prove or disprove a fact. If the testimony of a single witness is found worth reliance, conviction of an accused may safely be based on such testimony. In our system we follow the maxim that evidence is to be weighed and not counted. It is the "quality" and not the "quantity" of the evidence which matters in our system. This cardinal principle of appreciation of evidence in a case has been given a statutory recognition in Section 134 of the Evidence Act of 1872."
6.36 Further reliance may be placed upon the law laid down in Ambika Prasad and others Vs. State, (2002) 2 CRIMES 63 SC) and (AIR 1988 SC 696), Jawahar v. State, (Delhi) CC No. 84/2023 CBI v. Rahul Giri 65/163 2007(4) R.C.R.(Criminal) 336, Appabhai v. State of Gujarat AIR 1988 SC 696.
6.37 In State of U.P. v. Anil Singh AIR 1988 SC 1998 the Hon'ble Supreme Court deprecated the practice of rejecting the prosecution version either for want of corroboration by independent witnesses, or for some falsehood stated or embroidery added by witnesses. It was held as under:
"13. Of late this Court has been receiving a large number of appeals against acquittals and in the great majority of cases, the prosecution version is rejected either for want of corroboration by independent witnesses or for some falsehood stated or embroidery added by witnesses. In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence.........."
6.38 As far as PW13's turning hostile is concerned, I am of the considered opinion that the said witness made false statement before the court as he had been won over by the accused. Why he turned hostile is for the reason that he was the accused's colleague, worked with him at DTC Nand Nagri Depot and had all the reason to save him. The falsity of his statement, made during his examination in chief, which read as under:-
"In the audio recording which I heard, I was told to identify the other voice also, apart from that of accused Rahul Giri, however, I failed to recognize the other voice as well (Vol. I was told that the audio recording contains the voice of Rahul Giri and Ajeet Singh Tomar but as I had never performed duty with Ajeet Singh Tomar nor I had met him, therefore, I was not conversant with his voice and accordingly, I could not recognize his voice)."
,is evident from the fact that prior to the above statement he had stated "I know Sh. Ajeet Singh Tomar who was working as a Driver at the above depot and Sh. Abhishek Jain was a Depot Manager at the relevant time". Furthermore during his CC No. 84/2023 CBI v. Rahul Giri 66/163 cross-examination by Ld. PP for the CBI he admitted as " It is correct that me and accused Rahul Giri used to exchange greetings at the Depot whenever we met". Hence he was well acquainted with the accused/his voice, however, deliberately made false statement before the court. Last but not the least as regards the voice identification-cum-transcription memo-II i.e. Ex. PW6/A (colly) of Ex. P-10, he had admittedly affixed his signatures on the said document which was admittedly prepared after the audio recording was heard by him. Had he not heard the recording and had he not identified the voice in Ex. P-10 he would not have signed Ex. PW6/A. The relevant statement made by him during his examination in chief in this regard read as "The witness further states that it is the same document which was prepared after the audio recording was heard by him ". These proceedings were otherwise duly proved by other prosecution witnesses including independent witnesses namely Sh. Vipul Kumar (PW1) and Sh. Mohit Mathur (PW17) apart from IO PW19.
6.39 The fact that PW13 had deposed falsely also stands proved in view of deposition of PW1 Sh. Vipul Kumar who deposed that when he visited the CBI office on 25.04.2023 two officials/individuals from the complainant's office were present there and after hearing the recorded conversation from the investigation copy of Q-1 (Ex. P-10) and Q-2 (Ex. P-11) they had duly identified the voices of the accused as well as of complainant. It is to be noted that voice identification cum- transcription memo-1 and 2 i.e. Ex. PW1/N and Ex. PW6/A were both prepared on the same day i.e. 25.04.2023. The relevant CC No. 84/2023 CBI v. Rahul Giri 67/163 portion of deposition of PW1 in this regard is reproduced hereunder:-
"On 25.4.2023, I was again called in CBI office and on that day Mohit Mathur and complainant Ajeet Singh Tomar were also present in the CBI office. On that day, two more persons from the office of the complainant whose name I do not remember now were also present in the CBI office and they were made to hear the recorded conversation in the investigation copy of Q1 and Q2 and identified the respective voices of the complainant and the accused in said conversation. They both correctly identified the voices of the accused and the complainant in our presence and our signatures were also taken on certain written proceedings prepared by CBI officials in this connection. The said proceedings were recorded in our presence.
At this stage, the witness is shown the voice cum identification memo dated 25.4.2023 D-8 (Q-1 from page no. 1 to 6 and Q2 from page no. 1 to 19) upon which, the witness identifies his signature and that of Mohit Mathur at point A and B respectively. The same is now exhibited as Ex. PW1/N."
6.40 On similar lines is the deposition of other independent witness i.e. PW17 which is reproduced hereunder:-
"Thereafter, I visited CBI office again on 25.4.2023 on being called by CBI official Mr. Mishra. When I reached there, Sh. Vipul Kumar, complainant Sh. Ajeet and two other persons from Nand Nagri Depot were present. All of us were made to hear the recordings by the CBI officials. At that time, the complainant had identified his voice and that of the accused. The officials from Nand Nagri Depot had also identified the voice of the complainant and the accused. I and Sh. Vipul Kumar had identified our respective voice as well as that of the complainant and the accused. Thereafter, our signatures were obtained on certain documents verifying the proceedings conducted on that day. The recordings were tallied with the transcripts which were also signed by us."
6.41 The officials from DTC of which these witnesses/PW1 & PW17 are talking about are none other than PW13 Vijay Kumar and PW6 Brahamdev Sharma as stands proved from the following deposition of PW19 Insp. Mukesh Kumar Mishra who had prepared Ex. PW6/A (colly):-
CC No. 84/2023 CBI v. Rahul Giri 68/163 "At this stage, attention of the witness is drawn to the voice identification cum transcription memo-2 dated 25.04.2023 which is already Ex. PW6/A (colly) (D9). After going through the same, the witness states that the investigation copy of recorded conversation marked as Q1 & Q2 were played in his presence as well as in the presence of Sh. Braham Dev Sharma, ATI Nand Nagri Bus Depot DTC, Sh. Vijay Kumar, Driver DTC Nand Nagri Bus Depot, Sh. Vipul Kumar & Sh. Mohit Kumar (both independent witnesses). After hearing the said conversation, Sh. Braham Dev Sharma and Vijay Kumar identified the voice of the complainant Ajit Singh Tomar, accused Rahul Giri and Sh. Abhishek Jain. Thereafter both independent witnesses identified their voices as per the recordings. A memo was prepared in the said proceedings. Thereafter, memo and Hindi typed transcription of the recorded conversation was prepared and signed by Sh. Braham Dev Sharma at point A, Sh. Vijay Kumar at point B, Sh. Mohit Mathur at point C, Sh. Vipul Kumar at point D and myself at point E on each page as the said transcription was prepared exactly in terms of the recorded conversation and matched with the same."
6.42 It will be worthwhile to point out that the testimony of PW19 remained unchallenged qua Ex. PW6/A (colly) and accordingly I find no reasons to doubt the consistent testimony of PW1, PW17 and PW19 in this regard merely because PW6 failed to support the prosecution story qua Ex. PW6/A (colly). I have no hesitation in concluding that PW6 did not support the prosecution story as he had been won over by the accused. The fact that he deposed falsely is writ large from the contrary statements made by him during his examination in chief and cross-examination by Ld. Defence Counsel. On one hand he claimed that he was knowing the accused while later on he claimed that he had never met the accused till the day he was asked to identify his voice. The relevant portions are reproduced hereunder:-
Examination in chief "I was posted as a ATI in Nand Nagri Depot, Delhi in the month of February, 2023. I know accused Rahul Giri CC No. 84/2023 CBI v. Rahul Giri 69/163 (present in the court today and correctly identified by the witness) as he was/is posted as conductor in DTC."
Cross-examination "It is correct that since the day of joining my office and till the day I went to the CBI office, I had never met accused Rahul Giri. I had never met accused Rahul Giri till the date when I was asked to identify his voice in the CBI office."
6.43 Accused was posted as conductor at the DTC depot in question wherein PW6 was an ATI and it was part of his duty to check the bus staff including the conductors. With such being his job description/duty and he having joined the said depot more than 3 weeks before the arrest of the accused in the present case, there would have been number of occasions when he would have met/interacted with the accused and thus become conversant with his voice. The relevant portion of his statement made during his cross-examination by Ld. PP for the CBI in this regard read as "As an Assistant Traffic Inspector (ATI) my job includes checking of the bus staff including the conductor and the driver, that they are working properly as well as to check the passenger.
It is correct that accused Rahul Giri was a conductor".
6.44 Most importantly, before PW6 turned hostile he did not state that voice in Ex. P-10 is not of accused Rahul Giri and rather he stated that "After hearing the conversation/recording, the witness has identified the voices as that of Sh. Ajeet, complainant and states that as far as the other voice is concerned, it appears to be that of accused Rahul Giri."
6.45 It was also one of the arguments of Ld. Defence
CC No. 84/2023 CBI v. Rahul Giri 70/163
Counsel that apart from PW6 even PW8 Sh. Jai Kumar Kanda did not support the prosecution story qua preparation of voice cum identification transcription memo-3 i.e. Ex. PW8/A dated 08.05.2023 and his turning hostile further dented the prosecution case. No doubt PW8 during his examination in chief deposed as 'I had not heard the recordings but same were by Sh. Abhishek Jain on headphone and after hearing the same, he said "Haan yahi hai"', however from the record it stands proved that it was not Abhishek Jain alone who heard the recording but the recording was heard by PW8 as well. In his statement Ex. PW8/B, which PW8 admittedly made to the IO during the investigation, it is duly recorded as " I further state that today you have played following recording files in presence of me and Sh. Abhishek Jain, Depot Manager, Nand Nagri DTC".
6.46 Though it was also argued by Ld. Defence Counsel that according to PW8 the transcript was already prepared when the recordings were heard in his presence, however, as far as these arguments are concerned, Ex. PW8/A leaves no doubt that the transcript was prepared after the recordings were heard by PW9. The relevant portion of his statement Ex. PW8/B in this regard reads as "I further state that today you have prepared a Voice Identification cum Transcription Memo-3 dated 08.05.2023. I am also one of signatory of it" and during his cross-examination by Ld. PP for the CBI, PW8 admitted having made the said statement. The relevant portion of his cross- examination in this regard is reproduced hereunder:-
"At this stage, attention of the witness is drawn to statement dated 08.5.2023 Ex. PW8/B and the witness admits having made the said statement to the IO. The CC No. 84/2023 CBI v. Rahul Giri 71/163 witness further states that the recording was hearing by Sh. Abhishek Jain on headphones and after hearing the recordings, Sh. Abhishek Jain said "Haan yahi hai".
6.47 Also during his cross-examination, PW8 had admitted that he had signed Ex. PW8/A after going through its contents. Ex. PW8/A duly records that the transcription was prepared after the recording was heard by Sh. Abhishek Jain and that the witnesses to the said proceedings including PW8 had duly signed the same after going through its contents. The relevant portion of cross-examination of PW8 in this regard reads as under:-
"I am Post and Graduate Diploma in Computer Application. I am well conversant with English Language. It is correct that I sign any document after going through it's contents. It is further correct that I had put my signatures on Ex. PW8/A colly. After going through it's contents"
6.48 No doubt PW9 Sh. Abhishek Jain also failed to identify the voice of accused Rahul Giri in Ex. P-10 and Ex. P-11 when the same were played during his examination in chief and he only identified his own voice and that of complainant Ajeet Singh in Ex. P-11, however, I have no hesitation in concluding that he deliberately failed to identify the voice of accused Rahul Giri. PW8's deposition, as discussed above, leaves no doubt that the recordings were heard by PW9 in his presence and after hearing the same he had identified the voice of accused Rahul Giri apart from his own voice and that of the complainant. During his examination in chief and cross-examination he reiterated "The witness further states that the recording was hearing by Sh. Abhishek Jain on headphones and after hearing the recordings, Sh. Abhishek Jain said "Haan yahi hai". Ex.
CC No. 84/2023 CBI v. Rahul Giri 72/163 PW8/B, which statement was admittedly made by PW8 in this regard read as under:-
"After hearing of above recording files, Sh Abhishek Jain identified voices of Sh Ajeet Singh Tomer and Rahul Giri in recorded conversation Q-1 & Q-2 vide Voice Identification cum Transcription Memo-3 dated 08.05.2023. Sh Abhishek Jain Depot Manager, Nand Nagri DTC also identified his voice in recorded conversation Q-2."
6.49 Furthermore Ex. PW8/A bears the signatures of PW9 and said proceedings leaves no doubt that the recordings were heard by PW9 and he had identified the voice of accused Rahul Giri in the same and signed the proceedings, voice identification cum transcription memo-3 after going through the contents of the same. The relevant portion of his deposition in this regard reads as under:-
"After hearing the conversations, I had signed the transcript of the same and the other documents prepared regarding the same."
6.50 The relevant image of Ex. PW8/A in this regard is reproduced hereunder:-
CC No. 84/2023 CBI v. Rahul Giri 73/163
6.51 PW19's deposition, who had prepared Ex. PW8/A,
remained unchallenged, uncontroverted during the trial and I find no reason whatsoever to doubt his testimony which read as "At this stage, attention of the witness is drawn to the voice identification cum transcription memo-3 dated 08.05.2023 which is already Ex. PW8/A (colly) (D10). After going through CC No. 84/2023 CBI v. Rahul Giri 74/163 the same, the witness states that the investigation copy of recorded conversation marked as Q1 & Q2 were played in his presence as well as in the presence of Sh. Abhishek Jain, Depot Manager Nand Nagri Bus Depot DTC, Sh. Jai Kumar Kanda, independent witness. After hearing the said conversation, Sh. Abhishek Jain identified the voice of the complainant Ajit Singh Tomar, accused Rahul Giri and his own voice in the presence of independent witness Sh. Jai Kumar Kanda. A memo was prepared in the said proceedings. Thereafter, memo and Hindi typed transcription of the recorded conversation was prepared and signed by Sh. Jai Kumar Kanda at point A, Sh. Abhishek Jain at point B and myself at point C on each page as the said transcription was prepared exactly in terms of the recorded conversation and matched with the same". In fact PW19 was not cross-examined qua the entire proceedings, investigation conducted by him. Merely because PW6, PW8, PW9 & PW13 failed to support the prosecution story on certain counts that does not imply that their entire testimony is to be rejected. The law is fairly well settled now as regards the weightage to be attached to the testimony of a witness who has been declared hostile. Evidence of such a witness need not be totally rejected or treated as effaced or washed off the record altogether. It can be accepted to the extent his version is found to be dependable and is consistent with the case of the prosecution or defence on a careful scrutiny thereof (Balu Sonba Shinde v. State of Maharashtra 2003 SCC (Crl.) 112).
6.52 In Shamsher Singh @ Rameshwar v. State of Haryana, (P&H) 2006(2) R.C.R.(Criminal) 867 it was further CC No. 84/2023 CBI v. Rahul Giri 75/163 held that these days it is not an uncommon practice that a witness is won over and he turns hostile.
6.53 Similarly in Nisar Khan @ Guddu v. State of Uttaranchal (SC) 2006(1) Apex Criminal 340 though the PWs turned hostile/resiled from their statement the court upheld the conviction while observing that it seemed PWs were won over either by money, by muscle power, by threats or intimidation, but same cannot form the basis of acquitting the accused. Similar observation were made in Manoj Kumar v. State of Punjab (P&H) (D.B.) 2005(2) R.C.R.(Criminal) 813 and Swaran Singh v. State of Punjab (SC) 2000(2) R.C.R.(Criminal) 762.
6.54 In T. Shankar Prasad vs State Of Andhra Pradesh AIR 2004 SUPREME COURT 1242 it has been held as under:-
"The fact that PW-1 did not stick to his statement made during investigation does not totally obliterate his evidence. Even in criminal prosecution when a witness is cross-examined and contradicted with the leave of Court by the party calling him, his evidence cannot as a matter of law be treated as washed off record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process the credit of the witness has not been completely shaken he may after reading and considering the evidence of the said witness, accept in the light of other evidence on record that part of his testimony which he found to be creditworthy and act upon it. As noted above, PW-1 did not totally resile from his earlier statement. There was only a half- hearted attempt to partially shield A-
...............................In State of U.P. v. Dr. G.K.Ghosh (AIR 1984 SC 1453) it was observed that in case of an offence of demanding and accepting illegal gratification, depending on the circumstances of the case, the Court may feel safe in accepting the prosecution version on the basis of the oral evidence of the complainant and the official witnesses even if the trap witnesses turn hostile or are found not to be independent. When besides such evidence, there is circumstantial evidence which is CC No. 84/2023 CBI v. Rahul Giri 76/163 consistent with the guilt of the accused and not consistent with his innocence, there should be no difficulty in upholding the conviction."
6.55 In Attar Singh vs State of Maharashtra AIRONLINE 2012 SC 466 it was held as under:-
"13. .......... It could not be ignored that when a witness is declared hostile and when his testimony is not shaken on material points in the cross-examination, there is no ground to reject his testimony in toto as it is well-settled by a catena of decisions that the Court is not precluded from taking into account the statement of a hostile witness altogether and it is not necessary to discard the same in toto and can be relied upon partly. If some portion of the statement of the hostile witness inspires confidence, it can be relied upon. He cannot be thrown out as wholly unreliable. This was the view expressed by this court in the case of Syed Akbar vs. State of Karnataka reported in AIR 1979 SC 1848 whereby the learned Judges of the Supreme Court reversed the judgment of the Karnataka High Court which had discarded the evidence of a hostile witness in its entirety. Similarly, other High Courts in the matter of Gulshan Kumar vs. State (1993) Crl.L.J. 1525 as also Kunwar vs. State of U.P. (1993) Crl.L.J. 3421 as also Haneefa vs. State (1993) Crl.L.J. 2125 have held that it is not necessary to discard the evidence of the hostile witness in toto and can be relied upon partly. So also, in the matter of State of U.P. vs. Chet Ram reported in AIR 1989 SC 1543 = (1989) Crl.L.J. 1785; it was held that if some portion of the statement of the hostile witness inspires confidence it can be relied upon and the witness cannot be termed as wholly unreliable. It was further categorically held in the case of Shatrughan vs. State of M.P. (1993) Crl.L.J. 3120 that hostile witness is not necessarily a false witness. Granting of a permission by the Court to cross-examine his own witness does not amount to adjudication by the Court as to the veracity of a witness. It only means a declaration that the witness is adverse or unfriendly to the party calling him and not that the witness is untruthful. This was the view expressed by this Court in the matter of Sat Paul vs. Delhi Administration AIR 1976 SC
294. Thus, merely because a witness becomes hostile it would not result in throwing out the prosecution case, but the Court must see the relative effect of his testimony. If the evidence of a hostile witness is corroborated by other evidence, there is no legal bar to convict the accused. Thus testimony of a hostile witness is acceptable to the extent it is corroborated by that of a reliable witness. It is, therefore, open to the Court to consider the evidence and there is no objection to a part of that evidence being made use of in support of the prosecution or in support of the accused."
CC No. 84/2023 CBI v. Rahul Giri 77/163
6.56 In Neeraj Dutta vs State (Govt. of N.C.T. of Delhi)
2022 LiveLaw (SC) 1029 it has been held as under:-
"52. From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross- examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross- examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto."
67. Therefore, this Court cautioned that even if a witness is treated as "hostile" and is cross-examined, his evidence cannot be written off altogether but must be considered with due care and circumspection and that part of the testimony which is creditworthy must be considered and acted upon. It is for the judge as a matter of prudence to consider the extent of evidence which is creditworthy for the purpose of proof of the case. In other words, the fact that a witness has been declared "hostile" does not result in an automatic rejection of his evidence. Even, the evidence of a "hostile witness" if it finds corroboration from the facts of the case may be taken into account while judging the guilt of the accused. Thus, there is no legal bar to raise a conviction upon a "hostile witness" testimony if corroborated by other reliable evidence."
6.57 Thus the relevant portions of the testimony of PW6, PW8, PW9 & PW13 which have been discussed above in detail to the extent they support the prosecution story and find corroboration from the testimony of other prosecution witnesses can certainly be looked into. Though at the same time the testimony of the complainant/PW3 is itself sufficient to nail the accused.
CC No. 84/2023 CBI v. Rahul Giri 78/163
Corroboration by CFSL report
6.58 The prosecution case that the voices in Ex. P-10 &
for that matter Ex. P-11 are of the accused and the complainant was further strengthened when the same was duly corroborated by PW7 Ms. Anuradha Dey, Senior Scientific Officer, CFSL, New Delhi who had examined and analyzed the voices in Ex. P-10 viz-a-viz the sample voices of the accused and the complainant as were recorded in Ex. P-13. Before discussing the deposition of PW7 it will be worthwhile to highlight the deposition of PW15, PW1, PW3 who proved the proceedings vide which the sample voices of the complainant and the accused were taken. The relevant portions are being reproduced hereunder:-
PW15 "Willingness of the complainant and the accused was sought at the spot for recording their sample voice and they consented to the same. Thereafter, a new memory card in sealed packed condition which was carried by the trap team was opened in the presence of the independent witnesses and the same was inserted in the DVR. The blankness of the memory card as well as the DVR was checked in their presence. Thereafter, introductory voice of both the independent witnesses was recorded in the memory card with the help of the DVR. Thereafter, specimen voice of the complainant and the accused was recorded in the memory card with the help of the DVR. Concluding voice of both the independent witnesses was recorded in the memory card with the help of the DVR. The memory card was thereafter removed from the DVR and kept pack in it's original packing which was marked with the initials "S-A&C" in RC No. 05(A)/2023 and the same was duly signed by me, complainant, accused & both the independent witnesses. Thereafter, the same was kept in an envelope which was sealed with the CBI brass seal and again it was marked with the initials "S-A&C" in RC No. 05(A)/2023 and the same was duly signed by me, complainant, accused & both the CC No. 84/2023 CBI v. Rahul Giri 79/163 independent witnesses.
At this stage, Malkhana Assistant Gopal has produced one yellow colour envelope already Ex. PW7/E having court seal. The same has been opened with the permission of the court and found to contain a brown envelope in open condition already Ex. PW1/K and upon seeing the same, the witness identifies the signatures of Sh. Vipul at point A, Sh. Mohit at point B, complainant Sh. Ajeet Singh at point C, accused Rahul Giri at point D and that of the witness at point X. The brown envelope contains one 16 GB Micro SD Card Ex. P/13 with original packing and upon seeing the same, the witness identifies the signatures of Sh. Vipul at point A, complainant Sh. Ajeet Singh at point B, Sh. Mohit Mathur at point C, accused Rahul Giri at point D and that of the witness at point X. The SD card is inserted in the official laptop of CBI brought by Malkhana Assistant Gopal which is found to contain two files folders i.e. music & private and one system file i.e. capability _02. After opening the folder private, Sony is opened i.e. Rec_file. Rec_file is opened. The same contains two folders i.e. folder 01 and radio 01. After opening folder 01, the same shows 2 MP3 files bearing no. 230228_0030 & 230228_0034.
File No. 230228_0030 is played and upon playing the same, the witness identifies the voice to be that of independent witnesses Sh. Mohit Mathur & Sh. Vipul Kumar as was recorded as their introductory voice & concluding voices as well as the specimen voice of accused Rahul Giri as was voluntarily given by him at the spot in the presence of the independent witnesses."
PW1 "Thereafter, my introductory voice and that of the other witness Mohit Mathur were taken by and thereafter, the sample voice of the complainant and that of the accused were taken by CBI officials in SD cards.
At this stage, one yellow colour envelope having endorsement CFSL/Delhi/553/PHY/104/23 (Ex.S) sealed with the seal of CFSL has been opened which is found to contain another brown colour envelope having endorsement "S-A&C in RC-05(A)/2023" upon which the witness identifies his signature at point A and signature of Mohit Mathur at point B. The same is now exhibited as Ex. PW1/K. The brown colour envelope is opened with the permission of the court which is found to contain one Simmtronics 16 GB Micro SD HC Card having endorsement "S-A&C in RC-05(A)/2023". The same bears my signature at point A. The same is now exhibited as Ex. P-13.
CC No. 84/2023 CBI v. Rahul Giri 80/163 The SD card is now inserted in the laptop brought by Ct. Finny Sam from Malkhana, CBI which is found to contain 02 files bearing no. 230228_0030 and 230228_0034 File no. 230228_0030 is played in the laptop and after hearing the file, the witness identifies the same to be of his introductory voice and concluding voice as well as of Mohit Mathur, and the sample voice of Rahul Giri. Witness says that accused had given his voice samples voluntarily."
PW3 "At this stage, one yellow colour envelope having endorsement CFSL/Delhi/553/PHY/104/23 (Ex. DVR) sealed with the seal of court has been opened which is found to contain another brown colour envelope having endorsement "DVR in RC-05(A)/2023" upon which the witness identifies signature of Mohit Mathur at point B. The same already exhibited as Ex. PW1/J. The brown colour envelope already in unsealed condition found to contain one DVR make Sony having endorsement "DVR in RC-05(A)/2023" Ex. P-12 in which, my sample voice as well as of Sample voice of the accused and introductory voice of Mohit Mathur and Vipul Kumar were recorded by the CBI officials.
At this stage, one yellow colour envelope having endorsement CFSL/Delhi/553/PHY/104/23 (Ex.S) sealed with the seal of court has been opened which is found to contain another brown colour envelope having endorsement "S-A&C in RC-05(A)/2023" upon which the witness identifies his signature at point C and signature of Vipul Kumar and Mohit Mathur at point A and B respectively. The same is already exhibited as Ex. PW1/K. The brown colour envelope is already opened which is found to contain one Simmtronics 16 GB Micro SD HC Card having endorsement "S-A&C in RC-05(A)/2023" Ex. P-13 bears my signature at point B. He also identifies the signature of Vipul Kumar at point A. The SD card is now inserted in the laptop brought by Head Ct. Mahavir Singh from Malkhana, CBI which is found to contain 02 files bearing no. 230228_0030 and 230228_0034 File no. 230228_0030 is played in the laptop and after hearing the file, the witness identifies introductory voice of Mohit Mathur and Vipul Kumar and and the sample voice of Rahul Giri. Witness says that accused had given his voice sample voluntarily.
File no. 230228_0034 is played in the laptop and after hearing the file, the witness identifies introductory CC No. 84/2023 CBI v. Rahul Giri 81/163 voice and concluding voice of Mohit Mathur and Vipul Kumar, and his own sample voice. He says that he had given his voice sample voluntarily."
6.59 PW7 Ms. Anuradha Dey, Senior Scientific Assistant, CFSL New Delhi while proving her report Ex. PW7/B, proved that the questioned voice of the complainant and the accused were segregated from the recorded conversation i.e. Ex. P-10/Q-1 and compared with their specimen voices i.e. Ex P-13/S and on the basis of spectrographic & auditory examination she came to the conclusion that the questioned voices are probable voices of the accused and the complainant respectively.
6.60 Though in view of the categoric testimony of the complainant, no further corroboration regarding the voice in Ex.
P-10/Q-1 being of the accused is/was required nonetheless the law is well settled that the expert opinion can always be taken into consideration for additional corroboration. Reliance in this regard may be placed upon the law laid down in Murari Lal Vs. State of Madhya Pradesh 1980 AIR 531. It has been held in Mahavir Prasad Vs. Dr. Suman Rai AIR 1982 SC 1043 that tape recorded conversations can be relied upon as corroborative evidence.
6.61 During the course of arguments the testimony of PW7 and her report Ex. PW7/B came under attack, by Ld. Defence Counsel, on various grounds. To begin with it was argued that PW7 admitted that she is not a notified officer u/s 293 of the Code of Criminal Procedure 1973 (Cr.P.C. in short) and therefore no reliance can be placed upon her report. However CC No. 84/2023 CBI v. Rahul Giri 82/163 the said argument is absolutely devoid of merits. Merely because PW7, who was Senior Scientific Assistant was not a notified officer as per Section 293 (4) Cr.P.C. that by itself does not have the effect of effacing her testimony or report from the record. Being an expert her report has corroborative value, though as discussed above no independent corroboration is required in the present case and even the testimony of PW7 and her report Ex. PW7/B is ignored, there is still more than sufficient evidence including the CDRs, which establishes that the voice in Ex. P-10/Q-1 is of the accused.
6.62 It was also argued by Ld. Defence Counsel that admittedly PW7 did not have a diploma or degree in forensic science and in the absence of the same she fails to qualify as an expert. As far as this argument is concerned, I am of the considered opinion that PW7 was more than qualified to examine the exhibits and give her expert opinion on the same. Her qualification and experience was established on record from the following statement by her during her testimony as well as from report Ex. PW7/B:-
Examination in chief "I am M.Sc. (Physics). I have more than 12 years of experience in the field of forensic physics. I have assisted in more than 250 cases of speaker identification and reported more than 125 cases of speaker identification. I have assisted my senior officers in scene of crimes. I have tendered evidence in various courts of laws. I have received one week training from FSL, Rohini, Delhi in speaker identification and tape authentication."
Cross-examination "I have more than 12 years of experience in the field of forensic physics"
CC No. 84/2023 CBI v. Rahul Giri 83/163
Report Ex. PW7/B
"Anuradha Dey, M.Sc. (Physics), working as Senior Scientific Assistant in CFSL, DFSS (MHA), New Delhi, having more than eleven years of experience in the field of Forensic Physics. Assisted and examined in more than 250 cases related to Forensic Physics and Speaker Identification. Attended various scenes of crime for providing scientific support to senior officers. Tendered expert evidence in various courts. Received training at FSL Rohini in the field of 'Speaker Identification & Tape Authentication'."
6.63 Hence at the time when she examined the exhibits/voice samples she already had experience of more than 11 years and during her association with CFSL she had examined more than 250 cases relating to forensic physics and speaker identification. This speaks volume about her experience, expertise and her detailed report leaves no doubt that she was having vast knowledge about the subject and was in a position to give an expert opinion on the same. Merely because she did not possess any degree or diploma in forensic science does not shake her credibility as an expert witness considering the enormous experience she possessed.
6.64 It was also argued by Ld. Defence Counsel that the spectrograph and the worksheet prepared at the time of examination are not part of the record, however, suffice would be to say that PW7 categorically stated, at the time of her cross-
examination that she has brought the same with her today, however, for reasons best known to the defence, the defence did not call upon PW7 to file the same on record and hence merely because the spectrograph and worksheet were not filed on record CC No. 84/2023 CBI v. Rahul Giri 84/163 makes no difference at all considering detailed report Ex. PW7/B. Things might have been different had PW7 failed to produce the spectrograph and the worksheet when called upon by the defence but once she was carrying the spectrograph and worksheets with her it further goes on to prove that she had indeed examined the exhibits in detail. Also no doubt PW7 admitted that if the words in questioned recording and the specimen voices are not same, spectrograph examination cannot be conducted nonetheless she categorically stated that auditory examination can still be done and the defence failed to bring anything contrary on record which could have created doubts upon the claim of PW7.
6.65 It was also one of the arguments of Ld. Defence Counsel that with the use of artificial intelligence/auto tuner or other software like Vall E and over dub which are used to prepare deep fake, voice cloning and text to speech, similar voices can be created, however, Ld. Defence Counsel failed to bring on record any material in support of the said contention. Nothing could be elicited during the cross-examination of PW7 or for that matter other prosecution witnesses which could even remotely suggest that there was any tampering or fabrication in the recorded conversation in Ex. P-10/Q-1 or that same was created by using artificial intelligence or any other software/technology. In fact PW7 during her examination in chief categorically deposed that "The exhibits Q-1 and Q-2 were also examined for editing/tampering and after examination, no tampering was detected on the basis of waveform, spectrographic and critical auditory examination". It stands CC No. 84/2023 CBI v. Rahul Giri 85/163 proved on record that Ex. P-10/Q-1 and for that matter other case properties were duly sealed after their seizure and they remained in duly sealed condition till their examination by PW7. The seal which was used in sealing Ex. P-10 was duly handed over to PW1 as was categorically proved by him as well as PW3 & PW12, which has been discussed above in detail and which fact also stands duly established vide Ex. PW1/A (colly). Once the seal was duly handed over to independent witness PW1, this itself sufficiently ensured that the case property Ex. P-10 could not be tampered with by anybody. The case property Ex. P-10 was duly received by PW7 in sealed condition and she mentioned about the same in her report as "7. Condition of Seals: The seals on the parcels were found intact and tallied with specimen seal impressions forwarded". Her deposition in this regard read as "Before opening the envelopes containing the case exhibits, the seals of the exhibits were tallied with the specimen seal and were found intact. After opening the envelopes, they were found containing Q-1, Q-2, S i.e. micro SD cards and DVR respectively". During the trial defence could not bring any material on record which could even remotely suggest any tampering with the case property. At the cost of repetition the CDR on record, discussed at length above, further establishes that the voice in Ex. P-10 is/was of the accused and the complainant.
6.66 No doubt PW7 admitted "It is correct that the exhibits at the time of their receipt, the transcripts are already duly marked as C for complainant, S or A for accused", however, merely because the exhibits were so marked that by itself does CC No. 84/2023 CBI v. Rahul Giri 86/163 not render the report unreliable. As deposed by PW7 report Ex. PW7/B was prepared on the basis of spectrographic and auditory examination. Though not part of the record, PW7 had brought the spectrograph and the worksheet prepared at the time of examination, however, the defence did not choose a direction to PW7 to place them on record. PW7 in her report categorically stated as "(IV) Critical auditory examination, waveform and spectrographic examination of the audio recordings contained in exhibits 'Q-1' & 'Q-2' reveal that audio recordings are continuous and no form of tampering detected in the audio recordings". Hence the report was prepared after a detailed examination of exhibits, recorded conversations, sample voices and not merely because the transcripts were already duly marked. The defence could not bring anything on record to contradict the said report Ex. PW7/B. 6.67 It was also argued by Ld. Defence Counsel that Ex. PW7/B is a probable report only and therefore it has no evidentiary value, however, I find no merits in the said arguments. Though the words used by PW7 in the report Ex. PW7/B are "III (b) Hence, based on similarities found in the questioned voice of suspected speaker and sample voice of known speaker, it is opined that the questioned voice marked exhibits 'Q-1(1)(T)' & 'Q-2(1)(T)' are the probable voice of the speaker {Ajeet Singh Tomar} whose specimen voice is marked exhibit 'S(2)(T)'" however, the use of word probable cannot be read in isolation. PW7 before arriving at the said opinion had conducted spectrographic and auditory examination of the questioned as well as the specimen voice of the accused and the CC No. 84/2023 CBI v. Rahul Giri 87/163 complainant and thereafter gave her report. As already discussed above report Ex. PW7/B is a corroborative piece of evidence and the testimony of the complainant & other prosecution witnesses including PW1 sufficiently establishes that the voice in Ex. P-10/Q-1 is of the accused. Report Ex. PW7/B supplements the ocular testimony of PW1 as well as the evidence based upon the CDR of mobile phones of accused and the complainant. In addition to the ocular testimony of the prosecution witnesses, the CDRs as discussed above sufficiently proves the exchange of call between the accused and the complainant on the day of verification and the conversation during the call as well as the conversation which followed when they met in person, pursuant to call, was duly recorded in Ex. P-10.
6.68 At this stage it will be pertinent to highlight that during his statement u/s 313 Cr.P.C. when incriminating material i.e. the voice in the recordings contained in Ex. P-10 & Ex. P-11 was put to the accused and he was informed that as per the evidence on record the witnesses especially the complainant and PW1 had identified the voice to be his, he simply stated "However, it is incorrect to say that the said file contains my voice". He did not explain as to how the voice is not his. He did not claim that he was not present at the spot when the recordings were done or that he did not meet the complainant on the day of verification or trap. As discussed above, he duly admitted the exchange of call between him and the complainant on the day of verification. The purpose of recording statement u/s 313 Cr.P.C. is to give the accused an opportunity to explain the incriminating material as appearing against him and merely stating as stated by CC No. 84/2023 CBI v. Rahul Giri 88/163 the accused is no explanation at all. It is just vague denial without explaining as to how the said evidence is false, incorrect. It has been held in Prem Chand (supra) as under:-
".......However, judicial experience has shown that more often than not, the time and effort behind such an exercise put in by the trial court does not achieve the desired result. This is because either the accused elects to come forward with evasive denials or answers questions with stereotypes like 'false', 'I don't know', 'incorrect', etc. Many a time, this does more harm than good to the cause of the accused. For instance, if facts within the special knowledge of the accused are not satisfactorily explained, that could be a factor against the accused. Though such factor by itself is not conclusive of guilt, it becomes relevant while considering the totality of the circumstances."
6.69 In Nar Singh vs State Of Haryana AIR 2015 SUPREME COURT 310 it has been held as under:-
11. The object of Section 313 (1)(b) Cr.P.C. is to bring the substance of accusation to the accused to enable the accused to explain each and every circumstance appearing in the evidence against him. The provisions of this section are mandatory and cast a duty on the court to afford an opportunity to the accused to explain each and every circumstance and incriminating evidence against him. The examination of accused under Section 313 (1)(b) Cr.P.C. is not a mere formality. Section 313 Cr.P.C. prescribes a procedural safeguard for an accused, giving him an opportunity to explain the facts and circumstances appearing against him in the evidence and this opportunity is valuable from the standpoint of the accused. The real importance of Section 313 Cr.P.C. lies in that, it imposes a duty on the Court to question the accused properly and fairly so as to bring home to him the exact case he will have to meet and thereby, an opportunity is given to him to explain any such point.
12. Elaborating upon the importance of a statement under Section 313 Cr.P.C., in Paramjeet Singh alias Pamma v. State of Uttarakhand, (2010) 10 SCC 439 (para 22), this Court has held as under:
5 "Section 313 CrPC is based on the fundamental principle of fairness. The attention of the accused must specifically be brought to inculpatory pieces of evidence to give him an opportunity to offer an explanation if he chooses to do so.
Therefore, the court is under a legal obligation to put the incriminating circumstances before the accused and solicit his response. This provision is mandatory in nature and casts an imperative duty on the court and confers a corresponding right CC No. 84/2023 CBI v. Rahul Giri 89/163 on the accused to have an opportunity to offer an explanation for such incriminatory material appearing against him. Circumstances which were not put to the accused in his examination under Section 313 CrPC cannot be used against him and have to be excluded from consideration." (vide Sharad Birdichand Sarda v. State of Maharashtra(1984) 4 SCC 116 and State of Maharashtra v. Sukhdev Singh (1992) 3 SCC 700.
13. In Basava R. Patil & Ors. v. State of Karnataka & Ors., (2000) 8 SCC 740, this Court considered the scope of Section 313 Cr.P.C. and in paras (18) to (20) held as under:-
"18. What is the object of examination of an accused under Section 313 of the Code? The section itself declares the object in explicit language that it is "for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him". In Jai Dev v. State of Punjab (AIR 1963 SC 612) Gajendragadkar, J. (as he then was) speaking for a three-Judge Bench has focused on the ultimate test in determining whether the provision has been fairly complied with. He observed thus:
"The ultimate test in determining whether or not the accused has been fairly examined under Section 342 would be to enquire whether, having regard to all the questions put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against him......."
6.70 In fact I find no reason why the complainant would have given false complaint against the accused but for the fact that he had raised the demand of Rs. 50,000/- from him while assuring him that he could get his suspension revoked. During his statement u/s 313 Cr.P.C. when the accused was asked " Why this case against you?", his response was "The complaint against me and PW9 appears to be an afterthought, possibly motivated by a desire for revenge". The accused completely failed to explain, much least prove what grudges complainant had against him which motivated him to seek revenge against him. Nothing was brought on record which could even remotely suggest that the complainant and the accused were inimical to each other or had had disputes in the past. Thus explanation of the accused is absolutely vague, flimsy and merely an afterthought. On the other hand it stands proved on record that he had been indulging CC No. 84/2023 CBI v. Rahul Giri 90/163 in similar malpractices in the past. The following observations made in Premchand Vs. The State of Maharashtra 2023 LiveLaw (SC) 168 are also relevant in this regard:-
"16. Bearing the above well-settled principles in mind, every criminal court proceeding under clause (b) of sub-section (1) of section 313 has to shoulder the onerous responsibility of scanning the evidence after the prosecution closes its case, to trace the incriminating circumstances in the evidence against the accused and to prepare relevant questions to extend opportunity to the accused to explain any such circumstance in the evidence that could be used against him. Prior to the amendment of section 313 in 2009, the courts alone had to perform this task. Instances of interference with convictions by courts of appeal on the ground of failure of the trial court to frame relevant questions and to put the same to the accused were not rare. For toning up the criminal justice system and ensuring a fair and speedy trial, with emphasis on cutting down delays, the Parliament amended section 313 in 2009 and inserted sub- section (5), thereby enabling the court to take the assistance of the Public Prosecutor and Defence Counsel in preparing such questions [the first part of sub-section (5)]. Ideally, with such assistance (which has to be real and not sham to make the effort effective and meaningful), one would tend to believe that the courts probably are now better equipped to diligently prepare the relevant questions, lest there be any infirmity. However, judicial experience has shown that more often than not, the time and effort behind such an exercise put in by the trial court does not achieve the desired result. This is because either the accused elects to come forward with evasive denials or answers questions with stereotypes like 'false', 'I don't know', 'incorrect', etc. Many a time, this does more harm than good to the cause of the accused. For instance, if facts within the special knowledge of the accused are not satisfactorily explained, that could be a factor against the accused. Though such factor by itself is not conclusive of guilt, it becomes relevant while considering the totality of the circumstances........"
6.71 As discussed above it also stands proved on record that the seal used during the verification proceedings, vide which the memory card Q-1/Ex. P-10 was sealed, was handed over to independent witness/PW1 with instructions to him to produce the same on 27.02.2023 i.e. the trap day. The relevant portions of testimony of PW1, PW3, PW12 and PW15 in this regard are CC No. 84/2023 CBI v. Rahul Giri 91/163 reproduced hereunder:-
PW1 "Thereafter, the memory card was sealed and the same was signed by me, the complainant and the verification officer. After sealing the memory card, the seal was handed over to me with instruction to bring the same on 27.02.2023."
PW3 "The seal of CBI thereafter was handed over to witness Sh. Vipul Kumar with the instruction to keep in safe custody and gave directions to produce the same as and when required."
PW12 "Thereafter, it was sealed with the seal of CBI brass seal bearing no. 21 and seal was handed over to independent witness with directions to produce the same as and when required."
PW15 "The brass seal used for sealing Q1 was also handed over to me by independent witness Sh. Vipul Kumar."
6.72 All this sufficiently points that the case property i.e. Ex. P-10 remained in duly sealed condition and the same was not tampered with at all. Hence there is more than enough ocular, technical and scientific evidence which establishes on record that a demand of undue advantage/Rs. 50,000/- was raised by the accused to the complainant for getting his suspension revoked.
This demand was raised and subsequently accepted, which acceptance has been dealt herein below, as a motive/reward to induce/influence Sh. Abhishek Jain, Depot Manager DTC Nand Nagri Depot i.e. a public servant in revoking the complainant's suspension.
CC No. 84/2023 CBI v. Rahul Giri 92/163 B. The undue advantage was accepted or obtained or attempted to be obtained as a motive or reward to induce a public servant, by corrupt or illegal means or by exercise of his personal influence, to perform or to cause performance of a public duty improperly or dishonestly or to forbear or to cause to forbear such public duty by such public servant or by another public servant
7. It stands duly proved on record that once the verification confirmed the demand of undue advantage by the accused, FIR was registered and a trap was laid upon the accused during which trap proceedings the accused accepted the undue advantage/Rs. 50,000/- from the complainant and handed over the same to Sh. Umesh Kashyap (PW14) from whom it was recovered by the CBI team.
7.1 Apart from the complainant (PW3) & independent witness PW1 another independent witness was joined in the trap proceedings i.e. Sh. Mohit Mathur (PW17) by Trap Laying Officer Insp. Suresh Chand Kushwaha (PW15). These witnesses deposed in detail about the pre-trap proceedings and how the trap was laid upon the accused. They duly proved the handing over of the undue advantage/amount of Rs. 50,000/- and its acceptance by accused Rahul Giri as well as its subsequent recovery from Umesh Kashyap (PW14) to whom it was handed over by accused Rahul Giri. All these witnesses consistently deposed about the pre-trap, trap & post-trap proceedings while corroborating each other on material particulars and their testimony sufficiently establishes the prosecution allegations CC No. 84/2023 CBI v. Rahul Giri 93/163 against the accused. The relevant deposition of PW1 and PW3 is reproduced hereunder:-
PW1 "I reached CBI office at about 9:30 am on 27.02.2023. There I met SI Akash Srivastaka and Inspector Rajinder Choudhary and after sometime complainant and one other independent witness Mohit Mathur also reached there. Besides that, some more CBI officials were also present. I was told that Inspector Suresh Chand Kushwaha who was also present there would lead the case. The complainant who was asked to bring Rs. 50,000/- on the date of verification, had brought said money in the denomination of Rs. 500/- (100 GC Notes). I and Mohit Mathur as per the instructions of CBI officials, counted said money and the particulars of the GC Notes which were noted in the separate sheet by the CBI officials were asked to be tallied with the GC notes by us and we and the other witness Mohit Mathur accordingly tallied the particulars and found the same to be correct and our signatures were also taken on the same. Thereafter, demonstration of phenolphthalein powder was given by the CBI team and we were explained that if said powder or anything smeared with said powder is added in the solution of water and sodium carbonate, said solution would turn pink. Thereafter, said powder was applied on the aforementioned GC notes brought by the complainant and I was asked to touch the same. Thereafter, I was asked to dip my hands in the solution of water and sodium carbonate and doing so, the solution turned pink. The said water was thrown away by the CBI team after the demonstration. Thereafter, I wiped my hands. The other witness Mohit Mathur was asked to search the complainant Sh. Ajeet Singh Tomar and he accordingly, did the same and after ensuring that Ajeet Singh Tomar did not carry anything or I was asked to keep said tainted money in the pocket of left side of the wearing trouser of the complainant. The complainant was asked not to touch said money and asked to handover the said tainted money to the accused only upon his asking and specific demand or to any other person upon the directions of the accused.
Thereafter, I alongwith the complainant, the other witness Mohit Mathur and the CBI officials of the trap team left for the spot.
Before the demonstration of the phenolphthalein powder, the trap laying officer Inspector Kushwaha had arranged a blank SD card wherein, my introductory voice was recorded for ensuring the blankness. The introductory voice of other witness Mohit Mathur was also recorded in CC No. 84/2023 CBI v. Rahul Giri 94/163 the said SD Card.
The pre-trap proceedings were recorded by the TLO vide a written memo whereupon my signature as well as the signature of the complainant and other independent witness were also taken.
At this stage, D-4 i.e. pre-trap memo was shown to the witness where upon he identified his signature at point A, signature of the other witness Mohit Mathur at point B and signature of complainant at point C. The memo is now exhibited as Ex. PW1/B (colly).
Thereafter, the entire CBI team proceeded for laying the trap to the spot at Nand Nagri in two vehicles. The vehicles were stopped at some distance prior to DTC Bus Depot, Nand Nagri. The DVR in switched on mode was kept in the left side shirt pocket of the complainant. Before switching on the DVR, the complainant was asked to handover the money only after the accused raises the demand for the same and to ensure that the accused specifically asks for money before the same is handed over to him. Thereafter, the complainant entered the depot and the CBI team also entered the depot after a while.
The CBI members of the trap team were asked to stay positioned in the same vicinity and me and other independent witness Mohit were asked to stay close to the complainant so as to hear and watch the likely conversation between the complainant and the accused.
During pre-trap proceedings, while giving the demonstration of the phenolphthalein powder, the complainant was also asked to give pre-decided signal by rubbing his face with both hands after the transaction of bribe was over.
Thereafter, the complainant went inside the depot building on the first floor. After 2-3 minutes, the other members of the CBI team including me and other independent witness also went to the first floor and took our positions on said floor in discrete manner. I saw the complainant talking on his phone. After sometime, I saw the suspect whose name was later on revealed as Rahul also came towards the complainant and after talking to the complainant and while they were talking I went towards the canteen and when I came back, I saw the complainant standing alone. After sometime, Rahul again came there and talked to the complainant and they both went towards main gate of the depot and stood there near a small temple. Thereafter, they sat on the stairs of said temple. We also came down and spread near said temple in discrete manner. I saw that the complainant took out money from his pocket and handed over the same to the accused Rahul who put said money in the right hand pocket of his pant. However, the complainant did not give any signal and instead he CC No. 84/2023 CBI v. Rahul Giri 95/163 alongwith the accused Rahul went back inside the depot and then climbed to the first floor. We also followed them discretely. The accused went inside the canteen on the first floor and I saw even the complainant went inside the canteen. After sometime, they both came out of the canteen. After a while, accused again went inside the canteen. After sometime, accused Rahul came out and went towards the complainant who was standing outside the cabin. Rahul went inside the cabin. After sometime Rahul came out and thereafter, they both together went inside the cabin. I also saw one paper in the hand of complainant Ajeet upon which he was writing something before he entered the cabin alongwith the accused. Thereafter, when I saw them entering and coming out of the cabin, I went inside the canteen on the first floor. After sometime, Inspector Suresh Chand Kushwaha gave a hand gesture to call me outside the canteen.
I came out of the canteen and I saw that the complainant and the accused Rahul Giri were taken to a small cabin by the TLO where he challenged the accused for having accepted the bribe amount upon which he became perplexed and initially kept denying that he accepted any bribe amount from the complainant but the complainant reiterated that he had given the tainted bribe of Rs. 50,000/- to accused Rahul Giri while sitting at the staircase of the small temple near the gate of the Depot. TLO asked me to search the accused but upon his search no tainted amount was found in his possession. The CBI team again asked the accused about money and told him that the trap team had seen him accepting the bribe money on the gate of the Depot and he was also asked forcefully to disclose about the money. Upon repeated asking he said he had handed over the tainted amount received from the complainant to one Umesh Kashyap, the contractor of the canteen of the depot. Inspector Desai and the other witness Mohit went towards the canteen. In the canteen they made inquiry from Umesh Kashyap about the money received by him from accused Rahul Giri. Umesh Kashyap told them that accused Rahul Giri had given him Rs. 50,000/- just a while before and told that he would take it back very soon. Thereafter, Umesh Kashyap was also brought to the same place where the complainant and accused Rahul Giri were present and since that place was very small to accommodate all the persons therefore, the TLO shifted the accused to the room of Depot Manager Abhishek Jain. The independent witness Mohit, myself, the complainant and the other team members from CBI also gathered in the same room of the Depot Manager. TLO asked me to search Umesh Kashyap and after I searched him, I found him in possession of Rs. 50,000/- in his right side pant pocket.
CC No. 84/2023 CBI v. Rahul Giri 96/163 Me and the the independent witness were asked to tally the particulars of the recovered money with the particulars of the tainted money mentioned in the pre trap memo. After tallying the same, we found the recovered amount to be the same as mentioned in the pre trap memo already Ex. PW1/B (colly). Thereafter, the recovered amount was kept in an envelope which was sealed with the seal of CBI and my signature and that of Sh. Mohit Mathur were taken on the envelope.
At this stage, the witness is shown a yellow envelope (brought by Ct. Finny Sam from Malkhana, CBI) i.e. part of D-4 having endorsement trap money in RC 5(A)/2023 upon which he identified his signature and the signature of Sh. Mohit Mathur at point A and B respectively. The same is now exhibited as Ex. PW1/C. The envelope is opened with the permission of the court and it is found containing GC notes of Rs. 50,000/- in the denomination of Rs. 500/- (500 x 100). The GC notes are now kept in a brown envelope and given exhibit number as Ex. P-1. The said envelope is put back in the yellow envelope Ex. PW1/C and sealed with the court seal.
SI Akash Srivastava also prepared the site plan of the spot in my presence and in the site plan, the positions of the trap members at the time of transaction were mentioned.
The witness is shown the site plan D-6 and he identified his signature and the signature of Mr. Mohit Mathur on the same at point A and B respectively. The same is now exhibited as Ex. PW1/D. Thereafter, handwash of accused Rahul Giri and Umesh Kashyap were taken by the CBI. The handwash after they put their hands in the solution of sodium carbonate and water, the same turned pink and said solutions were separately kept in glass bottles which were capped and sealed and on both the said bottles my signature, signature of Mohit Mathur and that of TLO were taken. I can identify said bottles if shown to me.
Both accused Rahul and Umesh Kashyap were asked to change their trousers/pants and they accordingly, took out and handed over the trousers/pants which they were wearing to the CBI officials. The right pocket wash of said trousers were separately taken by dipping their respective pocket in the solution of sodium carbonate and water and said solutions also became light pink after doing so. Thereafter, the pants were dried up and my signature and that of Mohit Mathur were taken on the pockets of said pants and said said pants were also kept in separate envelopes which were sealed with the seal of CBI."
PW3
CC No. 84/2023 CBI v. Rahul Giri 97/163
I was asked to come again on 27.02.2023 with Rs. 50,000/-. Accordingly, I reached CBI office in the morning of 27.02.2023 with the money i.e. Rs. 50,000/- in the denomination of Rs. 500/- (500 x 100). Some persons were already present in the CBI office. One person namely Sh. Akash has noted down the number of the currency notes in the laptop and thereafter, the printout of the same was taken.
Subsequently, demonstration was given to us in respect of chemical reaction of phenolphthalein powder. The phenolphthalein powder was applied on the GC Notes and one witness was asked to touch the notes and thereafter, his hands were washed with normal water and on doing so, the colour of the water turned pink. Thereafter, I was asked not to touch the tainted money i.e. said GC Notes. My search was conducted to secure that I am not carrying any incriminatory material and after satisfaction, the tainted amount was kept in my left front pant pocket. I was directed to give the tainted bribe amount to accused Rahul Giri on his specific demand or any other person as specify by accused Rahul Giri. Thereafter, we left the CBI office in few private vehicles. I do not remember the exact time but it was morning time.
After reaching at the spot, the DVR was switched on and kept in my pocket and the independent witness was directed to remain close with me so that he may listen the conversation of the accused and myself. I entered into the depot and I called accused Rahul Giri on his mobile phone, however, he did not receive the call. I inquired with the staff about the accused and the staff apprised me that the accused is in the retiring room. I accordingly went to the retiring room and found the accused there in sleeping condition. I woke up him and asked him as to why you are not attending the call. He replied that he is returning from a marriage, therefore, he was sleeping and not able to receive my call. Thereafter, we went to the tea stall and we sat on the stairs of the temple which was just before the tea stall. Accused Rahul Giri asked me about the bribe money. I informed him that I have brought the bribe amount of Rs. 50,000/-. Subsequently, the bribe amount was handed over to accused Rahul Giri.
The said amount of Rs. 50,000/- was kept by the accused in the right side pocket of his pant. Thereafter, me and the accused both went on the first floor of the Depot to meet the Depot Manager Sh. Abhishek Jain in his room. However, his room was found locked as Abhishek Jain had gone for some meeting. Thereafter, me and the accused both went to the canteen of the depot at first floor where one suspended driver namely Sh. Jitender and one other employee who was conductor in DTC namely Vikas CC No. 84/2023 CBI v. Rahul Giri 98/163 Sharma were also present. There the accused had some conversation with Vikas Sharma also in connection with the revocation of suspension of Jitender. After having a short conversations with said persons, the accused alongwith me came out of the canteen and again went to the room of Depot Manager but he was still not there in his room. Thereafter, we again came near the canteen in front of Room No. 10. From there, the accused again went inside the canteen while I kept standing in front of said room. After 5-7 minutes, the accused came out of the canteen and then, we both sat in room no. 10 and waiting for Abhishek Jain to come. Thereafter, I asked the accused to make a call on the mobile phone of Abhishek Jain to confirm him about the payment of money by me to the accused. On my asking, the accused made a call to Abhishek Jain by keeping his mobile phone on speaker mode so that I could hear the conversation between them. On said call, accused asked Abhishek Jain where he was and then he told the accused that he was on the 2nd floor in the meeting. Abhishek Jain asked the accused what was the matter and accused told him that he (accused Rahul Giri) had some work on the first floor. Then, Abhishek Jain said that he would soon be coming on the first floor.
After 10-15 minutes, Abhishek Jain came to his room on the first floor. Then we both proceeded to meet him. However, after reaching the room of Abhishek Jain, accused asked me to wait outside and told that he would come back after talking to Abhishek Jain. Thereafter, accused went inside the room. After few minutes he came out and asked me to write an application for seeking revocation of my suspension. He said Abhishek Jain would not meet me without the application. Accordingly, I wrote the application as instructed by the accused. After writing the application, we both went inside the room and said application was handed over by the accused to Abhishek Jain and the accused was asked to go by Abhishek Jain. Thereafter, Abhishek Jain had a conversation with me and tried to ask me about the reason for not doing my duty properly and I tried to explain that the vehicles were not given on time. Thereafter, I was asked to wait outside and he asked the Peon to call Outsiding In-Charge who used to provide the vehicles and asked me to come again as and when Outsiding Incharge come. Thereafter, I went to room no. 4 where the accused was present and I asked the accused as to why Abhishek Jain was making so many inquiries when I had already paid the money. He however, said that he would not talk to Abhishek Jain at that time. After that I gave a pre-decided signal to the members of CBI team who were present on the first floor discreet me. Thereafter, CBI team came CC No. 84/2023 CBI v. Rahul Giri 99/163 there and one of the CBI officials Sh. Akash Srivastava and one more official whose name I do not remember caught hold of hands of the accused and the DVR which was lying in my shirt pocket was immediately switched off and taken from me by the CBI officials. Then the accused was challenged by the CBI team for having accepted the bribe amount of Rs. 50,000/-. However, he denied to have accepted any money from me. Thereafter, SI Sumit and Mohit Mathur conducted personal search of the accused but no money was recovered from his possession. Thereafter, accused was again inquired about the money and then he disclosed that he had kept the money with the head of the canteen Sh. Umesh Kashyap. Thereafter, I alongwith the independent witness Mohit Mathur and the CBI officials went inside the canteen. The other witness and some CBI officials remained with the accused outside the canteen. In the canteen, we met Umesh Kashyap and he was asked about if any money had been given to him by accused Rahul Giri and he disclosed that accused had given him Rs. 50,000/- just a few minutes before by saying that he would collect it later. Umesh Kashyap said that said money is lying in his pant pocket which he was wearing. Thereafter, Umesh Kashyap was brought to room no. 4 and from there we all alongwith the accused went to the room of Abhishek Jain. In that room, the independent witness Vipul Kumar recovered the tainted amount of Rs. 50,000/- from the possession of Umesh Kashyap. Thereafter, the number/ particular of GC notes of the tainted amount tallied with the details noted down on the paper by CBI before proceeding for the trap. The recovered amount was found to be the same on said comparison. The recovered amount was sealed by the CBI team after putting the same in the envelope, which was got signed from me and the independent witnesses. The investigation copy of the memory card wherein, the conversation of the trap was recorded, was prepared by the CBI. The original memory card was thereafter sealed with the seal of CBI.
Thereafter, hand wash of both the hands of the accused as well as of Umesh Kashyap were taken by asking them to dip their hands in some solution prepared by the CBI. On doing so, said solution turned pink and were separately kept in the clean glass bottles, which were then capped and sealed and the same were also got signed. Similarly, pant wash of accused Rahul Giri as well as Umesh Kashyap were also taken, which also turned pink and same were kept in clean glass bottles, which were separately sealed and got signed from the team members. The pants of the accused Rahul Giri and Umesh Kashyap were separately sealed after putting the same in envelope, which was also got signed. Thereafter, site plan of the spot CC No. 84/2023 CBI v. Rahul Giri 100/163 was also prepared and on the same signatures of the team members were taken.
Thereafter, in a blank new memory card, introductory voice of both the witnesses were recorded and thereafter, sample voices of accused Rahul Giri and mine were taken in said memory card and the memory card was thereafter, sealed with the seal of CBI and was got signed from the team members. Thereafter, CBI recorded the entire proceedings of the trap on a paper, upon which, the signature of all the team members including me, independent witnesses and CBI officials were taken."
7.2 On exactly similar lines is the deposition of PW15 & PW17. The bottles in which hand washes of accused Rahul Giri and Sh. Umesh Kashyap as well as their trousers were taken and which washes gave a positive result for presence of phenolphthalein, were identified by all the prosecution witnesses who were associated with the trap proceedings as Ex. P-2 to Ex. P-9 along with the envelopes in which they were seized Ex. PW1/E and Ex. PW1/F. The amount as was accepted by accused Rahul Giri and recovered from Umesh Kashyap was identified as Ex. P-1 along with its envelope Ex. PW1/C. This amount/currency notes were found tallying with the amount of the currency notes as detailed in the pre-trap memorandum Ex. PW1/B further proving that it was the same amount as was brought by the complainant and which was accepted by the accused on the day of trap.
7.3 It will be pertinent to point out that the glass bottles in which the hand washes & pant washes were taken at the spot, as was duly proved by the prosecution witnesses, were sealed at the spot itself and thereafter sent to CFSL for chemical examination for the presence of phenolphthalein as proved by IO PW19 Insp. Mukesh Kumar Mishra. His relevant deposition in CC No. 84/2023 CBI v. Rahul Giri 101/163 this regard read as under:-
"Attention of the witness has been drawn to the chemical examination report of Sh. Bharat Bhushan already Ex. PW2/A (D11). After seeing the same witness states that vide letter dated 06.03.2023 SP, CBI had forwarded six sealed bottles through the messenger HC Surender Singh, CBI ACB New Delhi to Director, CFSL for chemical examination. After examination I received the positive chemical examination report along with exhibits but I do not remember the date today."
7.4 The bottles were received at the CFSL in duly sealed condition as was proved by PW2 Sh. Bharat Bhushan, Senior Scientific Assistant, CFSL New Delhi who also proved his report Ex. PW2/A which was prepared after examination, analysis of the exhibits. The relevant portion of PW2's testimony and the report are reproduced hereunder in this regard:-
Examination in chief "At the time of examination, six sealed glass bottles were checked for seal impression. The seal impression on glass bottles were found to be C.B.I. A.C.B N.D 2023 21. The seal was intact and tallyed with the specimen seal impression forwarded by the forwarding officer.
Six sealed glass bottles marked as RHW and LHW of Rahul Giri, LHW and RHW of Umesh Kashyap, pant wash of accused Rahul Giri and that of Umesh Kashyap were examined by me by physico-chemical method, chemical tests, UV visible spectrophotometer and thin layer chromatographic technique."
Report "5. Details of parcels and seal.
Received six sealed glass bottles sealed with the seal impression of seal CBI, ACB N.D. 2023 21 intact, which tallied with the specimen seal impression forwarded.
7. Laboratory procedure, experiment and analysis The exhibits RHW of Rahul Giri, LHW of Rahul Giri, RHW of Umesh, LHW of UMESH, PANT WASH of RAHUL GIRI and PANT WASH OF UMESH were analysed by physico-chemical methods, chemical tests, CC No. 84/2023 CBI v. Rahul Giri 102/163 UV-VIS spectrophotometry and thin layer chromatography techniques.
8. Result of examination The exhibits RHW of Rahul Giri, LHW of Rahul Giri, RHW of Umesh, LHW of UMESH, PANT WASH of RAHUL GIRI and PANT WASH of UMESH gave positive tests for the presence of Phenolphthalein."
7.5 PW2 was not cross examined during the trial and his testimony which remained unimpeached, uncontroverted lends further credence to the prosecution story. The positive CFSL result was on account of the fact that the undue advantage/Rs. 50,000/- was accepted by accused Rahul Giri who then handed over the same to Umesh Kashyap. This amount, as was demanded by the accused & subsequently accepted, as proved by the prosecution witnesses was treated with phenolphthalein powder during the pre-trap proceedings and having accepted the money and thereafter kept the same in their trousers respectively, as stands duly proved from the testimony of complainant, eye witnesses/CBI team members, their hand washes and pant washes gave positive result for presence of phenolphthalein.
7.6 It was argued by Ld. Defence Counsel that according to PW1 after the amount of Rs. 50,000/- was treated with phenolphthalein powder he kept the same in the complainant's pocket. It was argued that according to prosecution case it was PW1 who had searched the accused during the alleged trap proceedings and he having kept the money in the complainant's pocket, during the pre-trap proceedings, his hands got smeared with phenolphthalein powder and when he carried out the search of the accused, the phenolphthalein from PW1's hand got transferred to the trouser of the accused and that is why CC No. 84/2023 CBI v. Rahul Giri 103/163 the pant wash of the accused gave positive result for presence of phenolphthalein. Ld. Defence Counsel laid much emphasis on the following statements made by PW1 during his examination in chief and cross-examination:-
Examination in chief Thereafter, I was asked to dip my hands in the solution of water and sodium carbonate and doing so, the solution turned pink. The said water was thrown away by the CBI team after the demonstration. Thereafter, I wiped my hands. The other witness Mohit Mathur was asked to search the complainant Sh. Ajeet Singh Tomar and he accordingly, did the same and after ensuring that Ajeet Singh Tomar did not carry anything or I was asked to keep said tainted money in the pocket of left side of the wearing trouser of the complainant.
Cross-examination "TLO asked me to search the accused but upon his search no tainted amount was found in his possession"
7.7 As far as the said arguments are concerned, I find no merits in the same. The positive pant wash and for that matter the hand wash was on account of the fact that the accused had accepted the amount of Rs. 50,000/-, which was treated with phenolphthalein powder during the pre-trap proceedings, from the complainant with his hands and thereafter kept the same in his pocket. It stands duly proved on record that before the CBI team left for the spot to lay trap upon the accused all the team members had duly washed their hands. The relevant portion of the testimony of PW15 and PW17 in this regard is reproduced hereunder:-
PW15 "Before leaving for the spot, all the team members washed their hands. The pre-trap memorandum was prepared by CC No. 84/2023 CBI v. Rahul Giri 104/163 11:00 am at the CBI office and all the members signed the same before leaving for the spot."
PW17 "The search of the complainant was conducted by me and only mobile phone was allowed to kept in his pocket by the CBI officials. The treated GC Notes of Rs. 50,000/- was kept by Sh. Vipul Kumar in the left side front pocket of trouser worn by the complainant and he was directed to not to touch the said tainted bribe amount and to hand over the same to the accused on his specific demand or to someone else on the directions of the accused. The complainant was also directed to give signal to the CBI team, after the transaction by rubbing his face with both his hands. All CBI team members including me washed hands with soap and water as well as searched each other."
7.8 The above proceedings were duly recorded in pre- trap memorandum Ex. PW1/B which bears signatures of the independent witnesses, the complainant apart from other team members and its relevant portion read as "All the trap team members including the complainant and the independent witnesses once again washed their hands with soap and water". Hence the CBI team members including PW1 had washed their hands not once but twice. Once they washed their hands after the demonstration of the phenolphthalein powder was given to the CBI team and second time before leaving for the spot. Same is duly reflected in Ex. PW1/B which reads as "After the demonstration, the pink colour solution was thrown away and the remaining phenolphthalein powder was thrown away. All team members including the complainant and both the independent witnesses washed their hands". PW15 during his testimony proved that the team members had washed their hands after the demonstration was given when he stated "The said solution along with the remaining phenolphthalein powder were thrown CC No. 84/2023 CBI v. Rahul Giri 105/163 away and all the team members washed their hands properly ". As already discussed above the second time the team washed their hands was before leaving for the spot. Why PW1 and for that matter PW3 did not state about washing their hands twice was probably on account of the passage of time, lapse of memory but PW15's & PW17's deposition coupled with Ex. PW1/B which also bears the signatures of PW1 and PW3 leaves no doubt that the CBI team members had duly washed their hands before leaving for the spot and thus there was no occasion for the phenolphthalein from PW1's hands to be transferred to the accused's trouser. The positive pant wash was on account of the fact that the accused had accepted the money/undue advantage and kept the same in his pant/trouser and having handed over the same to PW14 who too kept the same in his pant/trouser, his trouser/pant wash rightly gave the positive result for the presence of phenolphthalein.
7.9 Though Ld. Defence Counsel also argued that the CBI team members had allegedly caught hold of the accused's hands after his apprehension at Nand Nagri Depot and it was during this period that the phenolphthalein powder got transferred to the hands of the accused and his hands gave positive result for presence of phenolphthalein, however, in view of the categoric deposition of the prosecution witnesses as discussed above as well as Ex. PW1/B, I find no merits in the said arguments. Once the team members had duly washed their hands, there was no occasion for phenolphthalein powder to be transferred to the hands of the accused. Fact remains that accused had accepted the demanded amount of Rs. 50,000/-, which was CC No. 84/2023 CBI v. Rahul Giri 106/163 treated with phenolphthalein powder, with his hands and then kept the same in his pocket because of which his hands and pant wash gave a positive result for the presence of phenolphthalein.
7.10 Though Ld. Defence Counsel also argued that during his cross-examination PW3 stated "I do not remember today whether I had shaken hand with the accused on 27.02.2023 when I met him", however, the said statement does not help the case of the defence in any manner whatsoever. Once it stands proved that the CBI team members including the complainant had washed their hands before they left for the spot on the day of trap, even if it is assumed for the sake of arguments that the complainant and the accused had shaken hands, the accused could not have got phenolphthalein powder on his hands from the complainant. It was solely on account of the fact that he had accepted the demanded amount of Rs. 50,000/-, as was treated with phenolphthalein powder during the pre-trap proceedings.
7.11 The prosecution witnesses also proved the post-trap proceedings including recording of the introductory voice of independent witnesses PW1 & PW17 as well as the recording of sample voice of the accused and the complainant in Ex. P-13. The post-trap memo Ex. PW1/M incorporating the proceedings subsequent to the trap and recovery of the undue advantage from PW14 also stands proved on record. When Ex. P-13 was played in the court PW1, PW17 and complainant (PW3) duly identified their voices as well as that of the accused. They also proved the arrest of accused vide Ex. PW1/L. CC No. 84/2023 CBI v. Rahul Giri 107/163 7.12 During the course of arguments, Ld. Defence Counsel vehemently argued that PW1 admittedly did not hear the conversation between the complainant and the accused as he was at a distance from them. It was argued that the main purpose of joining PW1 in the alleged trap proceedings was to hear the conversation between the complainant & the accused and on account of his failure to do so, the prosecution case of demand cannot be said to be proved. However, I find no merits in the said arguments. As far as the demand is concerned it has been discussed in detail above that the verification proved demand of undue advantage/Rs. 50,000/- by the accused. PW1 was part of the CBI team during the verification of the complaint and his testimony clearly establishing demand of undue advantage by the accused has already been dealt in detail above. The recorded conversation in Ex. P-10 and its transcript Ex. PW1/N which also have been discussed in detail above, clearly establishes the demand of undue advantage by the accused. Though PW1 did not hear the conversation which took place between the complainant and the accused on 27.02.2023, however, he witnessed the handing over of the undue advantage/Rs. 50,000/- by the complainant to the accused. The relevant statement read as " I saw that the complainant took out money from his pocket and handed over the same to the accused Rahul who put said money in the right hand pocket of his pant".
7.13 Ld. Defence Counsel also argued that admittedly none of the prosecution witness including PW1 saw handing over of undue advantage/Rs. 50,000/- by the accused to Umesh Kashyap in the canteen which according to him is a major CC No. 84/2023 CBI v. Rahul Giri 108/163 missing link in the prosecution case and which proves that the alleged recovery was planted upon the accused. However, the said arguments too are devoid of merits. It stands proved on record that after accepting the undue advantage/Rs. 50,000/- the accused kept the same in his trouser's pocket and then he went inside the canteen, which was run by Umesh Kashyap (PW14), with the complainant and thereafter both of them came out after which the accused alone went inside the canteen and it was during this period that he handed over, kept the said amount with Umesh Kashyap. The relevant portion of deposition of PW1, PW3, PW15 and PW17 in this regard are reproduced hereunder:-
PW1 "The accused went inside the canteen on the first floor and I saw even the complainant went inside the canteen. After sometime, they both came out of the canteen. After a while, accused again went inside the canteen. After sometime, accused Rahul came out and went towards the complainant who was standing outside the cabin."
(cross-examination) "I had gone to the canteen. I did not notice anything in the canteen as such but I was keeping an eye on the complainant and the accused."
PW3 "After having a short conversations with said persons, the accused alongwith me came out of the canteen and again went to the room of Depot Manager but he was still not there in his room. Thereafter, we again came near the canteen in front of Room No. 10. From there, the accused again went inside the canteen while I kept standing in front of said room. After 5-7 minutes, the accused came out of the canteen and then, we both sat in room no. 10 and waiting for Abhishek Jain to come."
PW15 "After some time, the complainant and accused came out of the canteen but accused again went back to the canteen, in the kitchen area. After some time, the accused came out from the canteen and entered room no.10 at first floor."
CC No. 84/2023 CBI v. Rahul Giri 109/163
PW17
"In the canteen area complainant and accused were having conversation with a third person. Thereafter they came towards room no. 10 and after sometime accused again went back to the canteen, in the kitchen area. Thereafter, the accused returned to the complainant and both of them went to the building of the depot on the first floor."
7.14 Though PW14 Umesh Kashyap's testimony remained shaky on certain aspects, however, his deposition still goes a long way to establish that the amount of Rs. 50,000/- was handed over to him by the accused. During his examination in chief PW14 categorically proved that on 27.02.2023 the accused and the complainant had visited his canteen. The relevant portion of his deposition in this regard is reproduced hereunder:-
"On 27.02.2023, while I was running the Canteen and the Delhi Government had directed free lunch for Conductors at the Canteen, I was offering lunch to the Conductors. There was lot of rush at the canteen at that time, around 200 conductors and other employees gathered there for a lunch. Around 1:00 pm, accused Rahul Giri and one person whose name I came to know later on as Ajeet Singh Tomar also came to the canteen."
7.15 Though he did not state, during his examination in chief, that the amount was handed over to him by accused Rahul Giri and he rather deposed that "At around 1:30 pm, I noticed Rs. 50,000/- lying on a plastic bag containing sugar. I picked up the said amount and put it in my pocket ", however, at the same time he also deposed "After a while I tried to ascertain as to who had kept the amount there but in the meanwhile, CBI team came there and inquired from me whether anybody had kept money there and I told the CBI team that Rahul had kept the money there". Furthermore, during his cross-examination by Ld. PP for CC No. 84/2023 CBI v. Rahul Giri 110/163 the CBI he admitted as under:-
"It is correct that Rahul Giri had come to me at around 1:00 pm on 27.02.2023. It is correct that Rahul Giri had come with Rs. 50,000/- which were in the denomination of Rs. 500/-...............It is correct that Rahul Giri had on earlier occasions also kept money with me".
7.16 No doubt during his cross-examination by Ld. PP for the CBI he had also stated "It is wrong to suggest that he had handed over the said amount to me (Vol. Rahul Giri had come with Ajeet Singh Tomar to my canteen and I do not know which one of them had kept the notes on the plastic bag containing sugar).", however, I have no hesitation in concluding that he was deposing falsely to that extent. It stands proved on record from the testimony of the complainant and independent witnesses, apart from the other prosecution witnesses, that during the trap proceedings PW14 Umesh Kashyap informed the CBI team that money in question/Rs. 50,000/- was duly handed over to him by the accused who while handing over money to him told him that he would take it back very soon/in a while. The relevant portions of testimony of PW1, PW3 and PW15 in this regard are reproduced hereunder:-
PW1 "In the canteen they made inquiry from Umesh Kashyap about the money received by him from accused Rahul Giri. Umesh Kashyap told them that accused Rahul Giri had given him Rs. 50,000/- just a while before and told that he would take it back very soon.............TLO asked me to search the accused but upon his search no tainted amount was found in his possession."
PW3 "In the canteen, we met Umesh Kashyap and he was asked about if any money had been given to him by accused Rahul Giri and he disclosed that accused had given him Rs. 50,000/- just a few minutes before by saying that he would collect it later. Umesh Kashyap said that said money is lying in his pant pocket which he was wearing."
CC No. 84/2023 CBI v. Rahul Giri 111/163
PW15
"Thereafter, Inspector Vijay Desai, Inspector Sumit and Sh. Mohit Mathur rushed to the canteen area and enquired from Sh. Umesh Kashyap about the bribe money on which he admitted and stated that accused Rahul Giri had handed over to him a bundle containing 500 GC notes for safe custody while telling him that he will take back the same after around one hour."
7.17 Why he deposed falsely was on account of the fact that not only he was knowing the accused pretty well as he was running canteen at the same DTC depot where the accused was employed as a conductor but also admittedly the accused had on earlier occasion, prior to the trap, kept money with PW14 as was categorically stated by him during his testimony. They were known to each other quite well and on the day of trap two calls were exchanged between them which proves their closeness/affinity. Ex. PW4/A and Ex. PW5/A to E prove the exchange of calls between the accused's mobile number 8882136468 and mobile no. 8700388678, registered in the name of Smt. Ram Devi who is Umesh Kashyap's wife, not only on the day of trap but on several occasions prior to that also. It was solely on account of the two of them being close to each other that the accused had kept the money with him after accepting the same from the complainant.
7.18 During the course of investigation PW14's statement u/s 164 Cr.P.C. was recorded before the then Ld. ACMM wherein he categorically stated that the amount of Rs. 50,000/- was handed over to him by the accused. The relevant image of his statement u/s 164 Cr.P.C. i.e. Ex. PW14/A and his testimony in CC No. 84/2023 CBI v. Rahul Giri 112/163 this regard is reproduced hereunder:-
Statement u/s 164 Cr.P.C.
CC No. 84/2023 CBI v. Rahul Giri 113/163
Examination in chief
I had visited Rouse Avenue Court earlier when I was brought by the CBI team and my statement was recorded by Ld. Additional Chief Metropolitan Magistrate.
At this stage, one duly sealed brown envelope bearing the seal of "HSJ" and case particulars i.e. FIR No. RC0032023A0005, title CBI v. Rahul Giri is opened and upon opening the same it is found to contain proceedings CC No. 84/2023 CBI v. Rahul Giri 114/163 under Section 164 Cr.P.C of witness Umesh Kashyap. It is containing statement of the witness running into 2 pages alongwith the application, court proceedings running into total 7 pages.
At this stage, witness has identified his thumb impression as well as signatures at points A on statement and the court proceedings and the same is now Ex. PW14/A (colly). The said statement was made by me to the Ld. Additional Chief Metropolitan Magistrate. (Vol. I was told by the IO as to what is to be stated before the Ld. Additional Chief Metropolitan Magistrate). Cross-examination "It is wrong to suggest that statement Ex. PW14/A was voluntarily made by me and whatever was stated by me in the said statement was the truth. It is wrong to suggest that the statement Ex. PW14/A contains correct narration of what transpired on 27.02.2023. It is wrong to suggest that the said statement was not made by me at the instance of the IO.
It is correct that when my statement Ex. PW14/A was recorded, only I was present in the chamber alongwith the Ld. Additional Chief Metropolitan Magistrate and the IO was outside the chamber. It is correct that before my statement was recorded, the Ld. Additional Chief Metropolitan Magistrate had asked me whether the statement was made by me voluntarily and without any force, pressure etc."
7.19 It will be pertinent to highlight that the testimony of PW18 the then Ld. ACMM Sh. Harjeet Singh Jaspal who had recorded the said statement categorically stated that statement Ex. PW14/A was made by PW14 voluntarily, without any pressure or coercion. PW18 had further deposed that the said statement was recorded after sending the IO outside the chamber and only after he was satisfied that the statement was being made voluntarily by PW14. Testimony of PW18 was never challenged during the trial, remained uncontroverted and accordingly I find no reasons to disbelieve the genuineness of the proceedings vide which the statement Ex. PW14/A was recorded more so considering the sanctity attached to the judicial proceedings.
CC No. 84/2023 CBI v. Rahul Giri 115/163
7.20 No doubt the law is well settled that statement u/s
164 Cr.P.C. cannot be treated as substantive evidence and it cannot be given more weightage as compared to the statement made in the court as the defence has no opportunity to cross examine the witness at the time of recording the statement u/s 164 Cr.P.C. (R. Shaji Vs. State of Karela AIR 2013 SC 651 and Priya Swami Vs. State 15.01.2015 Criminal Appeal no.
299/2000), however, the purpose of discussing the statement Ex. PW14/A herein is to highlight that PW14 had indeed deposed falsely on certain aspect and he so deposed so as to save the accused who was quite well known to him. Nonetheless as discussed above, merely because he turned hostile it does not mean that his entire testimony gets washed off the record or is liable to be rejected. The part of his testimony which supports the prosecution case and finds due corroboration from the testimony of other prosecution witnesses can definitely be looked into.
7.21 Most importantly, it stands squarely proved from the testimony of PW14 that the accused had visited his canteen on 27.02.2023 and that he was carrying Rs. 50,000/- with him which were in the denomination of Rs. 500/- and even, for the sake of arguments, it is assumed that the said amount was not handed over to him but was merely kept there that by itself is not of much significance. What is material and important for the purpose of present trial is the acceptance of undue advantage by the accused and its subsequent recovery at his instance. It was only upon accused's disclosure, information that the money was handed over by him to PW14, that the same was subsequently recovered from PW14. The offence qua the accused was CC No. 84/2023 CBI v. Rahul Giri 116/163 complete the moment he accepted the undue advantage/Rs. 50,000/-. The recovery from Umesh Kashyap merely completed the chain. Furthermore, Umesh Kashyap categorically admitted "It is correct that the money was recovered from my trouser by Sh. Vipul Kumar who was working in Jal Shakti". The recovery was otherwise duly proved by PW1, PW3, PW15 & PW17 and the hand washes and the washes of the trousers, which gave positive results for presence of phenolphthalein, with which the amount brought by the complainant was treated during the pre- trap proceedings, squarely proves the acceptance of the undue advantage/Rs. 50,000/- by accused and its recovery from PW14 to whom it was handed over by the accused. The relevant portion of testimony of PW14 in this regard is reproduced hereunder:-
"After a while I tried to ascertain as to who had kept the amount there but in the meanwhile, CBI team came there and inquired from me whether anybody had kept money there and I told the CBI team that Rahul had kept the money there. The CBI team took me to the Peon/Clerk Room of the Depot Manager. Alongwith the CBI team, two individuals were also present, one of them was from Delhi Jal Board and I do not remember the particulars of the other. I do not remember exactly but one of them took out money from my pocket and it was tallied and told the CBI team that it was the same amount/currency notes which they had handed over to Ajeet. My both hand wash was also obtained by the CBI team and the solution had turned pink. The CBI team kept the said solution in a jar and it was sealed. The pant wash, of the trouser I was wearing was also obtained and it also turned pink and the said solution was also put in a jar and sealed. CBI team had also obtained both hand wash of accused Rahul Giri and the solution had turned pink and it was kept in a jar and sealed by the CBI team. The pant wash of accused Rahul Giri was also obtained and it also turned pink and the said solution was also put in a jar and it was sealed. The CBI team had also taken into possession my pant and that of accused Rahul Giri, the same were kept in separate envelopes and sealed by the CBI team.
At this stage, Malkhana Assistant Gopal has produced one yellow colour envelope already Ex. PW1/F having court seal. The same has been opened with the CC No. 84/2023 CBI v. Rahul Giri 117/163 permission of the court and found to contain one grey jeans and the witness identifies the same as the one he was wearing on 27.02.2023 and of which the pant wash was taken by the CBI team and in which the recovered amount of Rs. 50,000/- was kept."
7.22 Ld. Defence Counsel relying upon Ashish Jain (supra) vehemently argued that the evidentiary value of the alleged disclosure of the accused that he had handed over the money to PW14/Umesh Kashyap stood nullified once PW1 stated that accused was "forcefully" asked to disclose about the money/undue advantage. It was argued that even PW17 stated that the accused was pressurized by the CBI team to disclose about the money/undue advantage. Ld. Defence Counsel argued that the alleged disclosure/information having been obtained by exerting pressure/force and thus being an involuntary disclosure/confession and also being self-incriminatory, the same is hit by Article 20 of the Constitution of India. However, I find no merits in the arguments of Ld. Defence Counsel. At the outset, the case law relied upon by Ld. Defence Counsel is distinguishable on facts. In the said case not only the witnesses of recovery were not examined but even the weapon used for committing the crime & which was allegedly recovered at the instance of the accused could not be connected with the injury upon the deceased. Furthermore, even the recovery of blood stained clothes of accused persons was rendered doubtful. As against the facts of the said case, in the case at hand the independent witnesses of the recovery have duly been examined and they completed supported the prosecution case. Additionally the positive hand washes and pant washes proved the acceptance of undue advantage by the accused as well as its handing over CC No. 84/2023 CBI v. Rahul Giri 118/163 and subsequent recovery from PW14 Sh. Umesh Kashyap. At the time when the accused disclosed/informed the CBI team/TLO that he had handed over the amount/undue advantage to PW14, accused Rahul Giri was not in police custody. He had not been arrested yet and though no doubt he had been apprehended and was somewhat under the control of the police but he was not exactly under the exclusive control of the police as the place where he was apprehended was a public place and in fact it was his office. Independent witnesses including the complainant were present at that time and there is nothing on record to suggest that the accused was beaten, tortured or manhandled at the time when he disclosed/informed about the whereabout of the money/undue advantage. In Ashish Jain (supra) the Hon'ble Supreme Court took into account the fact that the interrogation did not appear to be of normal character and the accused persons had been repeatedly grilled & interrogated whereas in the case at hand the accused disclosed about the undue advantage/money being handed over to PW14 in the presence of independent witnesses at public place/his work place. Merely because PW1 stated " The CBI team again asked the accused about money and told him that the trap team had seen him accepting the bribe money on the gate of the Depot and he was also asked forcefully to disclose about the money." and PW17 stated "On repeated asking and being pressurized by the CBI team accused disclosed that he had handed over the bribe amount to one Umesh Kashyap in the canteen of the Depot" does not render the information given by the accused as involuntary or one being made under inducement, threat or coercion. The words "forcefully" and "pressurized" have to be understood in the language of a layman and not a CC No. 84/2023 CBI v. Rahul Giri 119/163 lawman. Raising voice can be termed by a layman as forcing somebody. PW1 while making the above statement had also stated as "Upon repeated asking he said he had handed over the tainted amount received from the complainant to one Umesh Kashyap, the contractor of the canteen of the depot ". Being repeatedly asked can be understood by a layman as putting pressure on somebody. But the force and the pressure which renders an information or disclosure as involuntary and thus being hit by Article 20 of the Constitution of India has to be such a force or pressure that it instills a fear, a feeling of helplessness in the person disclosing the information. The force or pressure has to be understood as one which makes the person disclosing the information apprehend fear to his body, life. There is nothing on record to suggest that the accused was subjected to such pressure or force at the time when he disclosed about the whereabouts of money/undue advantage accepted by him. It is also to be noted that PW3 and PW15 did not even once state that the accused was forced or pressurized to disclose or inform about the whereabouts of money/undue advantage. PW3 during his examination in chief stated in this regard as " In the canteen, we met Umesh Kashyap and he was asked about if any money had been given to him by accused Rahul Giri and he disclosed that accused had given him Rs. 50,000/- just a few minutes before by saying that he would collect it later. Umesh Kashyap said that said money is lying in his pant pocket which he was wearing". During his cross-examination it was not even once suggested that the accused was forced to disclose about the money/undue advantage. In fact PW3, during his cross-examination by Ld. Defence Counsel categorically stated "The CBI officials did not CC No. 84/2023 CBI v. Rahul Giri 120/163 man handle the accused at the time of his apprehension", hence no physical force, pressure etc. was exerted upon the accused. Similarly was stated by PW1 during his cross-examination.
7.23 Similarly the Trap Laying Officer/PW15 in this regard deposed as "I alongwith trap team members enquired from the accused about the bribe amount on which he continuously denied having accepted any bribe amount and scuffled with the CBI team. After some time, he admitted that he handed over the bribe amount to Sh. Umesh Kashyap who was the Canteen Contractor at Nandnagri Depot." Even to PW15 it was not even once suggested that the accused was forced or pressurized to disclose or give information about the money/undue advantage. During his cross-examination while denying the suggestion that it was the complainant who informed that the money was with PW14, PW15 stated as "It is wrong to suggest that it was the complainant who had told us that the money was with Umesh, who was running the canteen. (Vol. The said facts were told to us by the accused, then some of the team members went to the canteen)". Though certain suggestions were given to PW15 which he categorically denied and which read as "It is wrong to suggest that I had beaten the accused at the spot in the presence of Umesh Kaushik or that he was threatened to make statement which the CBI wanted or else he too would be implicated in this case. It is wrong to suggest that as I had beaten the accused or threatened Umesh, I am denying about my knowledge regarding the CCTV Footage at the Nand Nagri Depot Building", however, these suggestions appear to be generalized suggestions and of the period, events subsequent to CC No. 84/2023 CBI v. Rahul Giri 121/163 the recovery of the undue advantage/Rs. 50,000/- from PW14 and they do not relate to the time when the information about the money being with PW14 was disclosed by the accused.
7.24 In fact it was the accused who being inquired about the undue advantage/amount, accepted by him from the complainant, scuffled with the CBI team. The relevant portion of testimony of PW15 in this regard read as "I alongwith trap team members enquired from the accused about the bribe amount on which he continuously denied having accepted any bribe amount and scuffled with the CBI team. After some time, he admitted that he handed over the bribe amount to Sh. Umesh Kashyap who was the Canteen Contractor at Nandnagri Depot". The said fact is duly recorded in post-trap memo Ex. PW1/M. 7.25 Most importantly, in Ashish Jain (supra) while dealing with the relation between Section 27 of the Indian Evidence Act 1872 and Article 20 (3) of the Constitution of India the Hon'ble Apex Court emphasized about the voluntariness of the statement for two fold reasons, first to ensure the genuineness of the statement i.e. the same is not false or fabricated and secondly, to ensure safeguard against torture, use of third degree methods and prevent violation of dignity and bodily integrity of a person. In the case at hand the acceptance and the recovery of undue advantage was in the presence of independent witnesses whose deposition sufficiently ensures the genuineness and authenticity of the acceptance & recovery. Their deposition coupled with the other evidence on record completely rules out any fabrication or falsehood. As far as the accused's dignity and CC No. 84/2023 CBI v. Rahul Giri 122/163 bodily integrity is concerned, as discussed above there is nothing on record to suggest that there was any threat to his body or person or to his dignity or that there was use of torture or third degree method. The disclosure, information leading to the recovery of undue advantage/money was made in the presence of public persons/independent person at a public place. This renders the information, disclosure admissible in evidence as pursuant to said disclosure, recovery of undue advantage/money was effected from PW14.
7.26 It will be worthwhile to point out that in addition to the positive FSL result which has been discussed above, in the present case there are number of eye witnesses of the acceptance of the undue advantage/Rs. 50,000/- by the accused from the complainant on the day of trap. It stands proved on record through the testimony of PW1, PW3, PW15 and PW17 that all the members of the CBI team, especially the independent witnesses PW1 & PW17, could clearly see the accused accepting the amount of Rs. 50,000/- from the complainant while they sat on the stairs of a temple at Nand Nagri Depot. The relevant portions of the testimony of PW1, PW3, PW15 and PW17 are reproduced hereunder:-
PW1 "Thereafter, they sat on the stairs of said temple. We also came down and spread near said temple in discrete manner. I saw that the complainant took out money from his pocket and handed over the same to the accused Rahul who put said money in the right hand pocket of his pant." Cross-examination "I kept moving, changing position during the period I stayed at the DTC depot but yes I was able to observe what was transpiring.
It is incorrect to suggest that the bribe amount was CC No. 84/2023 CBI v. Rahul Giri 123/163 not paid in my presence."
PW3 (cross-examination) "After meeting the accused, we sat at the steps of the temple which is just outside the gate of the depot and had tea also. The witness was observing us from near the tea stall/shop.........The CBI team and the independent witness were at a distance of about 15 feets approximately. Ques: It is your saying that you gave money to the accused at that time? What do you have to say?
Ans: Yes, after having the tea, I gave money to the accused.
At that time, the independent witness and the CBI officials were witnessing the same."
PW15 "The complainant handed over the bribe amount of Rs.50,000/-, which he had carried with him in his pants left pocket, to Rahul Giri who received the same with both his hands and kept the said bribe amount in his right pant pocket."
(cross examination) "The accused had accepted the bribe amount in my presence. He had raised his hands out to accept the money."
PW17 "We saw the complainant and accused Rahul Giri stand in front of a temple situated at the gate of Nand Nagri Depot and after having some conversation the complainant took out the tainted bribe amount of Rs. 50,000/- from his pocket which accused accepted with his both hands and kept the same in his right pocket of the trouser worn by him."
Cross-examination I did not tell anybody personally about the handing over of the bribe money. (Vol. It was visible to all the team members, including me)."
7.27 It was also one of the arguments of Ld. Defence Counsel that according to prosecution witnesses the money/undue advantage was accepted by the accused at a public place in the presence of number of public persons and the same according to Ld. Defence Counsel it is not a normal human CC No. 84/2023 CBI v. Rahul Giri 124/163 conduct, highly improbable that bribe/money/undue advantage would be accepted at such a place and that such transactions are always done in a clandestine manner and not in broad public view, public place. Ld. Defence Counsel argued that this itself creates doubt upon the prosecution story. However, I find no merits in the said arguments. The eye witnesses's account as discussed above, leaves no doubt that the accused had accepted the demanded money from the complainant while both of them sat on the stairs of the temple. Why the accused accepted the amount at such a place is for the accused to explain but it has to be kept in mind that it was the accused's work place and his presence there was natural. It is not always that bribe is accepted at an isolated, secluded place and at times it is also accepted at a public place. Public places, crowded places are often chosen so as to provide an easy escape route in case of any trouble. Also what may be or may not be a normal conduct for a person is a matter of perception. A person's normal conduct may appear to be abnormal to another. It has been discussed above that accused had been indulging in similar activities i.e. it was normal for him to demand and accept money for helping out his colleagues.
7.28 Though Ld. Defence Counsel also argued that according to PW3, the CBI team including independent witnesses was at a distance of 15 feet from where he & the accused were sitting whereas according to PW15 Insp. Suresh Chandra Kushwaha (TLO) the distance between him and the complainant & accused was approximately 15-20 meters. Also according to PW17 he was at a distance around 20-25 feet from the accused & the complainant. Ld. Defence Counsel argued that this CC No. 84/2023 CBI v. Rahul Giri 125/163 discrepancy itself creates doubt upon the prosecution story that PW1, PW15 and PW17 were witnesses to the alleged acceptance.
However the said arguments too are meritless. It makes no difference as to whether the distance was 15 feet or 20 feet or 25 feet or for that matter 15 meters. The distance is not such huge which could prevent the transaction of acceptance being witnessed. At such a range the things are quite clearly visible. Furthermore the difference in the distances of the eye witnesses was on account of the fact that all the eye witnesses/CBI team members were not positioned at the same place but they were positioned at different places so as to avoid any suspicion in the mind of the accused. The rough site plan Ex. PW1/D of the spot/place of trap, as was prepared by SI Akash Srivastava at the instance of PW15, proves that the CBI team members were scattered all around the complainant and the accused but they were in a position to watch the transaction of acceptance of money/undue advantage by the accused.
7.29 While relying upon PW15's deposition which read as "On asking, the complainant informed that he handed over the bribe amount of Rs.50,000/- to accused at about 12.30pm and accused kept the said bribe amount in his right pant pocket ", Ld. Defence Counsel argued that the said statement itself proves that neither PW15 nor the other prosecution witnesses had witnessed the alleged handing over of Rs. 50,000/- to the accused because had PW15 and for that matter PW1 and PW17 witnessed the same, PW15 would not have asked as above from the complainant. As far as the said arguments are concerned, the detailed deposition of PW1, PW3, PW15 and PW17 squarely CC No. 84/2023 CBI v. Rahul Giri 126/163 establishes that PW1, PW15 and PW17 were eye witnesses of the acceptance of Rs. 50,000/-/undue advantage by the accused. Much before PW15 deposed as above he had already deposed as "The complainant handed over the bribe amount of Rs.50,000/-, which he had carried with him in his pants left pocket, to Rahul Giri who received the same with both his hands and kept the said bribe amount in his right pant pocket" which leaves no doubt that he was eye witness of the transaction. When he deposed, as pointed by Ld. Defence Counsel, what he actually meant was that he was merely confirming from the complainant what he had himself witnessed, what exactly transpired between them. Ld. Defence Counsel, suffice would be to say, is unnecessarily reading in between the lines just so somehow carve out, creates doubt upon the prosecution when in reality none exists.
7.30 As stands proved from the testimony of witnesses of the trap proceedings which included PW1, PW3, PW15, PW17 etc. and some of which has been discussed above in detail, to record the conversation between the complainant and the accused on the day of trap a new memory card i.e. Ex. P-11 was arranged which was inserted in the DVR Ex. P-12 and after ensuring its blankness, in the presence of independent witnesses, introductory voices of both the independent witnesses were recorded in the same. This DVR was carried by the complainant in switch on & hold on mode when he went to meet the accused and the conversation which took place between them was duly recorded in the same. When this memory card was played in the court most of the prosecution witnesses, especially the complainant and the independent witnesses, recognized their voices as well as CC No. 84/2023 CBI v. Rahul Giri 127/163 that of accused Rahul Giri in the same thereby corroborating the ocular testimony of the prosecution witnesses regarding the meeting between the complainant & the accused and the acceptance of undue advantage/Rs. 50,000/- by the accused. The recording which was repeatedly played during the trial coupled with its transcripts squarely clinches the issue at hand. The relevant images of the transcript (Ex. PW1/N, Ex. PW6/A and Ex. PW8/A) along with highlighted portion is reproduced hereunder:-
CC No. 84/2023 CBI v. Rahul Giri 128/163 CC No. 84/2023 CBI v. Rahul Giri 129/163 CC No. 84/2023 CBI v. Rahul Giri 130/163 CC No. 84/2023 CBI v. Rahul Giri 131/163 CC No. 84/2023 CBI v. Rahul Giri 132/163 CC No. 84/2023 CBI v. Rahul Giri 133/163 CC No. 84/2023 CBI v. Rahul Giri 134/163 CC No. 84/2023 CBI v. Rahul Giri 135/163 CC No. 84/2023 CBI v. Rahul Giri 136/163 CC No. 84/2023 CBI v. Rahul Giri 137/163 7.31 The transcript clearly establishes the demand, rather repeated reiteration of demand of undue advantage by the accused and yet again his assurance that the moment amount is paid, the complainant's suspension would be revoked and he will be able to join his duty immediately. Categoric demand was raised at the time of verification as well as during the acceptance e.g. when the accused on the complainant's asking " ab kitne du"
told him "50 hi" and the acceptance was when the complainant said "nahi ib tu le ja paise" and the accused said "hoon".
7.32 There is yet again reference of Vikas (PW16) in the conversation and its transcript. The accused also claimed that he had helped others in a similar fashion and when the said recording is heard in conjunction with PW14's statement who had deposed that accused had kept money with him on earlier occasion, that goes a long way to prove that this was not an isolated instance of acceptance of undue advantage/money by the CC No. 84/2023 CBI v. Rahul Giri 138/163 accused but he had been indulging in the said malpractice for quite a while. It appears from the conversation that he had similarly taken/extracted money from one Mangat and Bhupinder for helping them out. The recorded conversation and the transcript reveals that the accused had been exploiting the vulnerable position of his colleagues/DTC employees who faced departmental issues etc. and with the complainant too, who was suspended, he adopted the same modus operandi to cause wrongful gain to himself.
7.33 Conversation further reveals that the complainant and the accused had gone to the canteen of PW14 as was also deposed by eye witnesses/independent witnesses PW1 and PW17 apart from the TLO/PW15. The fact that the complainant was made to write an application, regarding revocation of his suspension, also emerges from the recorded conversation/its transcript and as stands duly proved on record the said application Ex. PW1/G was also seized during the trap proceedings. It also emerges from the recorded conversation that on the day of the trap i.e. 27.02.2023 the accused did not answer the complainant's call and the complainant had to find, locate him at the DTC depot. As emerges from the transcript similarly was stated by the complainant during his examination in chief as well as during the cross-examination by Ld. Defence counsel which are reproduced hereunder:-
Examination in chief I entered into the depot and I called accused Rahul Giri on his mobile phone, however, he did not receive the call. I inquired with the staff about the accused and the staff apprised me that the accused is in the retiring room. I accordingly went to the retiring room and found the CC No. 84/2023 CBI v. Rahul Giri 139/163 accused there in sleeping condition. I woke up him and asked him as to why you are not attending the call. He replied that he is returning from a marriage, therefore, he was sleeping and not able to receive my call.
Cross-examination "I called accused Rahul Giri repeatedly on 27.02.2023 from my mobile phone bearing no. 9213979873, however, he did not receive my call and it took me about 10 minutes to find him at the depot".
7.34 It was also one of the arguments of Ld. Defence Counsel that prosecution miserably failed to prove that the alleged amount was demanded & accepted by the accused to induce Sh. Abhishek Jain much least that the said inducement was by way of any corrupt or illegal means or by exercise of his personal influence upon Sh. Abhishek Jain. While so arguing Ld. Defence Counsel highlighted the testimony of Abhishek Jain (PW9) who deposed "Accused Rahul Giri never came to me with regard to Ajeet Singh Tomar's suspension". Ld. Defence Counsel also argued that though PW3 during his examination in chief deposed "Accused told me that he could get my suspension revoked provided I pay him Rs. 70,000/-. I asked him to whom said money is required to be paid. He told that Abhishek Jain who was the Depot Manager at that time, would get said work done provided said payment is made. Rs. 70,000/- was demanded for both accused and the Depot Manager", however, during his cross-examination he stated "It is wrong to suggest that the accused did not demand Rs. 60,000/- from me in the name of the Depot Manager. Again said: He might have used the word "Sahab", is not specifically Depot Manager", which itself proves that there was no inducement or influence by the accused CC No. 84/2023 CBI v. Rahul Giri 140/163 whatsoever upon Abhishek Jain for getting the complainant's suspension revoked. It was argued that prosecution failed to explain as to how the revocation of complainant's suspension was a public duty. It was also argued that the prosecution failed to prove that Sh. Abhishek Jain was a public servant and laid much emphasis on the following cross-examination of PW19:-
"I had not collected, received or seized any document pertaining to job profile of PW9 Sh. Abhishek Jain and accordingly, no document in this regard was filed before the court. I have not brought on record any document regarding the corporation, incorporation of Delhi Transport Corporation.
Ques: I put it to you that it is not necessary that a person working with Delhi Transport Corporation, Nand Nagri Depot is a public servant. What have you to say? Ans: Yes, he may be a public servant or a contractual employee."
7.35 However, there is no merit in the said arguments or for that matter reliance upon Beeralinga (supra) and Bharat Lal Saini (supra). At the outset the facts of both these case laws are/were different. In Beeralinga (supra) there was no demand and acceptance by the petitioner whereas in the case at hand the demand & acceptance stands duly proved on record. Similarly in Bharat Lal Saini (supra) it was held that unless the demand has some reasonable nexus to the dishonest and improper performance or forbearance of the public duty by the public servant, the offence u/s 7A of PC Act is not made out. As against the same, in the case at hand, the demand & acceptance stands duly proved and it also stands proved that the undue advantage was so demanded and accepted to induce Sh. Abhishek Jain in performance of his public duty i.e. revocation of complainant's suspension. Atleast the accused gave the said impression to the complainant while demanding and accepting the undue CC No. 84/2023 CBI v. Rahul Giri 141/163 advantage. It being settled law that both demand and acceptance being gravamen/soul of offence u/s 7A of PC Act, once the same stands proved the prosecution successfully discharges its onus. The demand and acceptance of undue advantage has to be for performance or forbearance of a public duty by public servant. Further the demand and acceptance of undue advantage ought to be as a motive or reward to induce the public servant which inducement can be by corrupt or illegal means or by exercise of personal influence. The demand and acceptance need not be for the public servant and the same can be for the person demanding it. It has been discussed above in detail that the complainant was suspended by Sh. Abhishek Jain. Being the Depot Manager and the one who had suspended the complainant it was Abhishek Jain who could revoke his suspension. The transcripts and the recordings in Ex. P-10 & Ex. P-11 leaves no doubt that at the time when the demand was raised as well as at the time of acceptance, the accused had repeatedly assured the complainant that he had already talked to Sh. Abhishek Jain regarding his suspension while also assuring him that no adverse remark or entry in his record shall be made once the payment is made. The conversation and the recordings also make it amply clear that the accused gave repeated impressions/assurances to the complainant that the money he was demanding and accepting was to be paid to Sh. Abhishek Jain. He also promised to take the complainant to meet Sh. Abhishek Jain once the payment is/was made. So the accused on his part left no stone unturned in assuring the complainant that he can get his suspension revoked through Sh. Abhishek Jain. It is a different matter that Sh. Abhishek Jain was completely unaware of the accused's foul play, modus operandi.
CC No. 84/2023 CBI v. Rahul Giri 142/163 The money/undue advantage was accepted by the accused to induce Abhishek Jain and it is not necessary that such inducement is by way of corrupt or illegal means only. Section 7A PC Act makes it amply clear that the inducement can be by way of exercise of personal influence as well. Even if the accused did not have the capacity, means to induce Sh. Abhishek Jain or exercise personal influence upon him but as far as the complainant is concerned he gave the complainant repeated assurances that he can so induce, influence Sh. Abhishek Jain in getting his suspension revoked and there is more than enough evidence, as discussed above, that what the accused made the complainant believe was that the suspension would be revoked on payment of Rs. 50,000/- which was to be paid to Sh. Abhishek Jain. To gain the complainant's confidence the accused claimed that he had successfully helped other employees in similar fashion. The moment the accused demanded the amount and accepted the same the offence was complete.
7.36 At this stage it will be worthwhile to highlight that as is evident from the recordings & transcripts and as also proved by the complainant, after the acceptance of undue advantage the accused took the complainant to the office of Sh. Abhishek Jain, Depot Manager with regard to revocation of his suspension. He went inside alone while the complainant remained outside and he also made the complainant write an application in this regard which application, as already discussed above, is on record as Ex. PW1/G. Subsequently, he took the complainant inside the room and in the transcript, recording Abhishek Jain is heard saying "dekh lunga baad mein tu jo kyon ghoomta rehta hai saath CC No. 84/2023 CBI v. Rahul Giri 143/163 mein...........Tu kyon aa gaya saath mein kyon nahi karte tum OK duty". Hence accused did make efforts to influence Sh. Abhishek Jain in revoking complainant's suspension and it cannot be completely ruled that he did exercise some influence, had some say with/upon Sh. Abhishek Jain. Though not necessarily the influence was by way of corrupt or illegal means. The relevant portion of the transcript in this regard is reproduced hereunder:-
7.37 The above transcript further proves that Abhishek Jain deliberately did not support the prosecution story about identifying the voice of accused Rahul Giri and his deposition to that extent was false. During his examination in chief he had deposed "Accused Rahul Giri never came to me with regard to CC No. 84/2023 CBI v. Rahul Giri 144/163 Ajeet Singh Tomar's suspension", however, the transcript as above reveals that he had indeed visited his office along with the complainant on the day of trap with respect to revocation of complainant's suspension. Heed to the observations made in Devan @ Vasudevan and etc. vs The State 1988 CRILJ 1005 would be relevant, which matter pertained to erstwhile Section 162 of Indian Penal Code 1860 (in short IPC) which dealt with "taking gratification, in order, by corrupt or illegal means, to influence public servant" wherein it was held as under:-
"7. Shri Ratna Singh, learned Counsel for one of the appellants contended that even if the entire evidence is accepted, it is not sufficient to constitute the offence under Section 162 of the I.P.C. since there is no evidence to show as to what the accused did to Lt. Col. Krishnaiah. In order to analyse the said contention, the section is extracted below:
Taking gratification, in order, by corrupt or illegal means, to influence public servant:- Whoever accepts or obtains, or agrees to accept, or attempts to obtain, from any person, for himself or for any other person, any gratification whatever as a motive or reward for inducing, by corrupt or illegal means, any public servant to do or to render any service or disservice to any person, or to render or attempt to render any service or disservice to any person, with the Central or any State Government or Parliament or the Legislature of any State, or with any local authority, corporation or Government company referred to in Section 21, or with any public servant, as such, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. The ingredients of the offence are (a) The accused should accept or agree to accept (or even attempt to obtain) gratification from some one. (b) The gratification is for himself or for some one else, (c) It is a motive or reward to induce a public servant by corrupt or illegal means to do or to forbear to do any official act or to show favour or disfavour to some person etc. The gravamen of the offence is acceptance of or the obtaining or even the attempt to obtain illegal gratification as a motive or reward for inducing a public servant by corrupt or illegal means. It is not necessary that the person who received the gratification should have succeeded in inducing the public servant. It is not even necessary that the recipient of the gratification should, in fact, have attempted to induce the public servant.
CC No. 84/2023 CBI v. Rahul Giri 145/163 The receipt of gratification as a motive or reward for the purpose of inducing the public servant by corrupt or illegal means will complete the offence. But it is necessary that the accused should have had the animus or intent, at the time when he receives gratification that it is received as a motive or reward for inducing a public servant by corrupt or illegal means. Such intention can be gathered or inferred from evidence in each case. A scrutiny of the evidence shows that the offence stands established even without showing that the accused in fact induced or attempted to induce Lt. Col. Krishnaiah to do anything. Therefore the non-examination of Krishnaiah is of no consequence in this case."
7.38 In fact it is to be noted that initially the FIR Ex. PW15/A was registered u/s 7 of the PC Act also as Abhishek Jain's name came up during the verification proceedings and the money was demanded by the accused in Abhishek Jain's name but thorough investigation revealed no role of Abhishek Jain whatsoever and accordingly only the accused was charge sheeted u/s 7A of the PC Act.
7.39 As far as revocation of suspension is concerned, Sh. Abhishek Jain had suspended the complainant in his capacity as a Depot Manager of Delhi Transport Corporation (DTC). As a Depot Manager with Delhi Transport Corporation he was performing public duty. The suspension of the complainant as per Ex. PW6/B was on account of complainant's failure to perform his duty as a Driver being employee of Delhi Transport Corporation. Delhi Transport Corporation is a public sector undertaking under the administrative control of Government of NCT of Delhi. Therefore the employees of Delhi Transport Corporation are considered as public servants. When a public servant i.e. a Depot Manager suspends a DTC driver for dereliction of duties i.e. public duty, he performs a public duty CC No. 84/2023 CBI v. Rahul Giri 146/163 and when/if he revokes the suspension he is yet again performing a public duty. Merely because PW19 did not collect any documents from Delhi Transport Corporation cannot alter the said factual position of which this court can take judicial notice of. Furthermore during the entire trial not even a single suggestion was given to any prosecution witness including PW19 that PW9 was not a public servant. Last but not the least Section 2 (c) of the PC Act which defines public servant makes it amply clear that not only being an employee of Delhi Transport Corporation but also on account of the fact that he was performing public duty i.e. managing DTC Depot, buses, its drivers etc., PW9 is covered within the definition of public servant. Section 2 (c) of PC Act in this regard is reproduced hereunder:-
"(c) "public servant" means,-
(i) any person in the service or pay of the Government or remunerated by the Government by fees or commission for the performance of any public duty;......................
(iii) any person in the service or pay of a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956);..................................
(viii)any person who holds an office by virtue of which he is authorised or required to perform any public duty;"
7.40 Reliance in this regard may be placed upon Aman Bhatia Vs. State GNCT of Delhi dated 02.05.2025 Criminal Appeal no. 2613/2014. In fact not only PW9 but according to Section 2 (c) of the PC Act and the law laid down in Aman Bhatia (supra) even the complainant and accused are public servants.
CC No. 84/2023 CBI v. Rahul Giri 147/163
7.41 It was argued by Ld. Defence Counsel that
prosecution failed to satisfactorily explain as to from where the DVR, the memory cards and phenolphthalein powder, as were allegedly used in the verification and trap proceedings, were arranged. It was argued that no Record Keeper/MHCM was examined by the prosecution to prove the chain of handing over of these articles to the Verification Officer or the Trap Laying Officer, which according to Ld. Defence Counsel is an important missing link in the prosecution case. While so arguing Ld. Defence counsel laid much emphasis on the following statements made by PW3 during his cross-examination:-
"The DVR and the memory card were arranged in about 5- 10 minutes. I do not know from where exactly the same was arranged but they were in office only...............
I am not aware who had brought the phenolphthalein powder in the office on that day. The powder was packed, however, I do not remember today about the exact nature of the packing."
7.42 As far as the said arguments are concerned, no doubt prosecution could not examine the Record keeper/MHCM from whom the DVR, memory card and the phenolphthalein powder used in the verification and trap proceedings were procured and no handing over, receiving etc. in this regard was proved on record but its stands squarely established from the testimony of prosecution witnesses that these articles were duly arranged by the Verification Officer and then by the Trap Laying Officer at the time when the respective proceedings were conducted by them. Though the complainant stated that he does not know from where exactly these articles were arranged but he did state that they were in the office itself. PW12 Verification officer Insp. Rajender Kumar Chaudhary's deposition, who had procured the CC No. 84/2023 CBI v. Rahul Giri 148/163 memory card & the DVR used in the verification proceedings, has been discussed in detail above and his testimony remained unchallenged, uncontroverted as regards procurement of these articles is concerned. He was not cross-examined or grilled as to from where he had arranged these articles. It was not suggested to him that the articles were not so procured or used in the trap proceedings.
7.43 As far as the memory card used in the trap proceedings is concerned, Trap Laying Officer Insp. Suresh Chandra Kushwah (PW15) during his examination in chief categorically deposed as "A new memory card of 16 GB arranged through duty officer and inserted into the DVR in the presence of the independent witnesses". During his cross- examination he stated as "The DVR was taken from the verification officer/Inspector Rajender Chaudhary and the new memory cards were procured through Care Taker of the branch ". During his cross-examination it was not even once suggested to him that the memory card and the DVR were not so arranged by him.
7.44 As far as phenolphthalein powder, as used in the pre- trap proceedings and with which the amount of Rs. 50,000/- as brought by the complainant was treated/smeared with, is concerned, PW15 during his cross-examination categorically stated that "The phenolphthalein powder was got arranged from Malkhana, CBI." I find no reason to disbelieve the said statement of PW15 more so when the defence failed to bring anything contrary on record. No doubt during his further cross-
CC No. 84/2023 CBI v. Rahul Giri 149/163 examination he stated as under:-
"The phenolphthalein powder was in a sealed plastic box. Again said: (It was not part of the trap kit). I cannot tell the quantity of the phenolphthalein powder or the exact size of the plastic box. I did not check as to the exact quantity of the powder in the plastic box...........I have no knowledge whether any entry is being made in the Malkhana regarding deposit or collection of any article from Malkhana. I had deposited various documents and articles in Malkhana and I had signed the entries at that time. Similarly, I had signed the entry at the time of collection or documents or articles from Malkhana"
,however, considering the consistent statement of PW1 and PW3 no doubt remains that the phenolphthalein powder was arranged at the CBI office itself. Undoubtedly examination of the Record Keeper/MHCM/Malkhana Incharge would have lend further credence to the prosecution case but merely because the said official was not examined that by itself does not effect the prosecution story in any manner. Facts duly stand established on record that phenolphthalein powder was arranged and so were the memory card & the DVR and they were used in the proceedings conducted during the investigation.
7.45 It was also argued by Ld. Defence Counsel that PW15 during his cross-examination stated that the phenolphthalein powder was part of the trap kit which was taken to the spot on the day of trap and that once the phenolphthalein powder was so taken, it cannot be completely ruled out that the alleged hand washes were obtained malafidely by using the said powder. However, I find no merits in the said arguments as well. To begin with no doubt PW15 did state "The phenolphthalein powder was got arranged from Malkhana, CBI and it was also part of the trap kit. The phenolphthalein powder was in a sealed CC No. 84/2023 CBI v. Rahul Giri 150/163 plastic box", however he immediately thereafter stated " Again said: (It was not part of the trap kit)." Furthermore, he categorically denied that the phenolphthalein powder was carried to the spot and stated "It is wrong to suggest that I have made improvement in my cross-examination as initially I said that the phenolphthalein powder was part of the trap kit, but later said that the same was not the part of the trap kit. It is wrong to suggest that I had carried the phenolphthalein powder with me to the spot". During his examination in chief PW15 had categorically stated as "The currency notes arranged by the complainant as above, were treated with phenolphthalein powder and the independent witness Sh. Vipul Kumar was asked to touch the currency notes and thereafter, his hands were washed in sodium carbonate and water solution and the solution turned pink. The said solution alongwith the remaining phenolphthalein powder were thrown away and all the team members washed their hands properly". Furthermore no such suggestion that the phenolphthalein powder was carried by the CBI team/TLO to the spot was given to either PW1 or PW3 during their cross- examination. In fact PW3, during his cross-examination by Ld. Defence Counsel, had categorically stated as under:-
"The remaining powder was kept by the CBI officials in their bag. The bag in which the powder was kept was not taken by the CBI officials with them. I am not aware as to what happened with the bag in which the remaining powder was kept, however, the bag was left lying on the table itself."
7.46 At best the initial statement made by PW15, which he immediately corrected subsequently, was solely on account of mixing up of facts, the witness getting confused during cross- examination and also due to passage of more than 2 years since CC No. 84/2023 CBI v. Rahul Giri 151/163 the trap proceedings. No undue weightage needs to be attached to the same when the prosecution story is consistent on material particulars.
7.47 It was also argued by Ld. Defence Counsel that just like PW12 even PW15 failed to explain whether, on the day of trap, they had gone to the spot in a private or official vehicle which according to Ld. Defence Counsel also creates doubt upon the alleged trap proceedings. It has already been discussed above that with such huge passage of time it is too much to expect that a witness would remember these minute details i.e. vehicle number or the driver's name more so when the witness is/has been investigating or is/has been part of various investigations. What is material is that on the day of trap the CBI team had visited the spot i.e. Nand Nagri DTC depot as stands duly proved and corroborated by the prosecution witnesses including independent witnesses and the complainant. The defence on its part could not prove that CBI team comprising of TLO, independent witnesses and the complainant had not visited the Nand Nagri DTC depot on the day of trap or that it was present somewhere else.
7.48 It was also one of the Ld. Defence Counsel that serious doubts arise about the alleged pre-trap proceedings once the prosecution witnesses failed to give the name of the CBI official who had given the alleged demonstration of use of phenolphthalein powder or the official who had smeared the amount of Rs. 50,000/- brought by the complainant with the said powder. It was argued that PW1, PW3 and even the TLO/PW15 CC No. 84/2023 CBI v. Rahul Giri 152/163 failed to give the name of the CBI official who had so given the demonstration. No doubt PW3 during his cross-examination stated as "I do not remember today the name of the CBI official who had given the demonstration about the use of the phenolphthalein powder as there were 5-6 officials present at that time. Similarly, I do not remember the name of the official who had smeared the currency notes with the said powder" and PW15 in this regard stated as "The bribe amount was treated with phenolphthalein powder by the member of the trap team in my presence as well as in the presence of the independent witness and other team members, but I do not remember the name of the official who did so". However, it will be worthwhile to point that PW15 during his examination in chief which was recorded almost 4 moths prior to his cross-examination had stated as under:-
"Thereafter, demonstration was given by Inspector Vijay Desai to all the trap team members and also explained the purpose and significance of use of phenolphthalein powder and it's chemical reaction with sodium carbonate and water. The team members were explained and demonstrated how anything smeared with phenolphthalein powder if washed with sodium carbonate and water solution would turn into pink."
7.49 What is material and what stands consistently proved on record is the fact that the demonstration of use of phenolphthalein powder was given during the pre-trap proceedings and that the currency notes/ amount brought by the complainant, as demanded by the accused, were smeared with the said powder. It was only because the currency notes were so smeared with the phenolphthalein powder that the accused's hand wash and pant wash as well as that of PW14 gave positive result CC No. 84/2023 CBI v. Rahul Giri 153/163 for presence of the said powder as accused had accepted and thereafter kept the same with PW14. It is absolutely immaterial as to who gave the demonstration or who smeared the currency notes with phenolphthalein powder. It stands proved on record, as deposed by PW3 and other prosecution witnesses that number of CBI officials were present at the time of pre-trap proceedings as they were all part of the team so arranged to lay trap upon the accused which also included the complainant and independent witnesses. With so many officials/witnesses present and with such enormous lapse of time since the demonstration/trap a witness is bound to forget these minute details which has no effect on the merits of the prosecution case. The effect of time lapse on the memory of a witness/individual has been discussed in detail above.
7.50 Ld. Defence Counsel also argued that there is an unexplained delay of around 2 days between the alleged verification and trap proceedings. It was argued that not only this delay could not be explained by the prosecution but the delay itself proves that the entire prosecution case is false, fabricated and manipulated, however, I find no merits in his arguments. As per record the verification of the complaint was conducted on 24.02.2023 and case FIR i.e. Ex. PW15/A was registered on the same day, however, the trap proceedings were conducted on 27.02.2023. At the outset there is no specified time limit for the trap proceedings, laying trap upon the accused subsequent to registration of FIR though as a matter of prudence and to rule out its failure the trap is laid at the earliest. But just because the trap proceedings are/were conducted after a day or two of the CC No. 84/2023 CBI v. Rahul Giri 154/163 verification proceedings that by itself does not lead to any inference of any fabrication, manipulation or false implication. There can be various reasons for such a time gap between the two proceedings. In the case at hand the delay which the Ld. Defence Counsel has pointed out and which in my opinion is not a delay otherwise stands duly explained by PW3 when he stated during his cross-examination "Nobody had told me to again meet the accused on 27.02.2023, I had met the accused on 24.02.2023, next two days were Saturday and Sunday and I also needed time to arrange the money and hence, asked to meet the accused on 27.02.2023". In fact during his examination in chief he had stated "I request him to reduce the amount but he said that one other suspended driver had already paid Rs. 55,000/- for his revocation and I can be given further concession of Rs. 5,000/-. Therefore, he finally asked me to arrange Rs. 50,000/-. I requested him for 2 days time for arranging said money". This part of the statement of PW3 which remained unchallenged, uncontroverted duly explains the reason behind time gap between the verification and the trap proceedings.
7.51 It was also argued by Ld. Defence Counsel that the trap proceedings and for that matter the verification proceedings were not videographed for reasons best known to the CBI and that had the same been done it would have exposed the truth and rendered the prosecution case as false & frivolous. It was argued that for reasons best known to the CBI, the CBI Crime Manual and the CVC Manual were not followed in the present case. This court is conscious of the directions issued in Vineet Narain and ors Vs. CBI (1998) 1 SCC 226 and CBI Vs. Thommandru CC No. 84/2023 CBI v. Rahul Giri 155/163 Hannah etc. 2021 (4) RCR (Cr) 456 SC which directions were issued to introduce more transparency and accountability in the functioning of the CBI as well as to ensure that CBI functions effectively, efficiently and as a non-partisan agency. No doubt the said directions should have been followed in letter & spirit, however, merely because the same was not done and the verification & the trap proceedings were not videographed or photographed, that by itself not affected the prosecution case in any manner. There is ample oral, documentary and scientific/expert evidence on record against the accused. Moreover had the photography or videography been done, which would have meant use of more technical devices, it would have greatly enhanced the scope, the probabilities of discrepancies which are bound to occur with use of such devices, technology, instruments etc. If one thinks it practically the use of cameras for videography or photography of the verification and trap proceedings would make those proceedings, which are to be conducted in a discreet manner so as to avoid failure/botching up of honest/truthful cases, highly conspicuous and alert the person who is being verified/trapped/investigated and fail them at the very inception.
7.52 The police, CVC manuals are prepared to generalize the rules and procedures of the investigation with an idea of bringing in uniformity and reliability in the proceedings of the investigation. It is expected of the police officers to follow such instructions/ directions contained in the manuals. However, these manuals are not statutory documents, they are merely directory in nature. Non-compliance of the directions/guidelines though CC No. 84/2023 CBI v. Rahul Giri 156/163 should be avoided, however, it does not invalidate the proceedings completely. Such defaults in the prosecution case at best can be termed as irregularities and not illegalities going to the root of the case. Furthermore, in 'Vineet Narayan' (supra) judgment provides that the consequence of not following the manual is disciplinary inquiry. The judgment does not say that such default would per se invalidate the investigation. It was for the accused to explain how the non-recording of the proceedings has affected him adversely but he miserably failed to do so.
7.53 No doubt even the CCTV footage of the DTC depot was not collected though admittedly CCTV cameras were installed at the DTC depot in question including the place from where the accused was apprehended i.e. in front of Depot Manager's room, however, non collection of the CCTV footage has not affected the prosecution story in any manner. It has already been discussed above that it is the quality of evidence which matters and not the quantity/number of witnesses. The testimony of the complainant and independent witnesses is sufficient to bring home the guilt against the accused. Moreover, the complainant/PW3 while admitting that CCTV cameras were installed at DTC depot also stated that the cameras were not installed in all the places. No doubt according to PW3 the accused was apprehended in front of the Depot Manager's room and there is a CCTV camera near the office of Depot Manager, however, in view of the consistent testimony of the prosecution witnesses there was no necessity for the prosecution to produce the CCTV footage. The fact that the accused was apprehended, from a room in front of the Deport Manager's room was never disputed during CC No. 84/2023 CBI v. Rahul Giri 157/163 the trial. It is not the accused's case that he was apprehended from somewhere else. Most importantly, footage of the place of apprehension of the accused is absolutely irrelevant considering the facts & circumstances of the case. It stands proved on record that on the day of trap the accused and the complainant had moved around different places/spots within the premises of DTC depot including the canteen, temple, Depot Manager's office etc. Prosecution cannot be expected to have collected and brought on record all these footages once it's case of meeting between the complainant and the accused, acceptance of the undue advantage and its recovery stands duly proved through the testimony of the complainant and the eye witnesses/independent witnesses. Last but not the least accused has failed to explain as to how non collection of the CCTV footage has prejudiced him and in case he wanted to belie the prosecution case on the basis of CCTV footage then nothing stopped the accused from producing the same. No efforts were ever made to seek preservance of the CCTV footage. Hence the defence arguments stands dismissed being devoid of merits.
7.54 It was also argued by Ld. Defence Counsel that PW17 failed to produce on record any letter/intimation etc. which he might have received at/from his department for joining the CBI proceedings on 27.02.2023 and therefore there are serious doubts whether indeed he had joined the proceedings and it was also argued that it cannot be ruled out that he was a stock CBI witness who deposed falsely at the instance of CBI and merely signed the documents on the asking of the IO. As far as these arguments are concerned, it stands duly proved on record that PW17 had joined CC No. 84/2023 CBI v. Rahul Giri 158/163 the trap proceedings on 27.02.2023 as an independent witness. The testimony of PW1, PW3 and PW15 sufficiently prove that PW17 had joined the proceedings as an independent witness and it was only upon witnessing the proceedings conducted in his presence that he signed the respective memorandums as prepared during the investigation. The defence miserably failed to prove otherwise or that PW17 was present somewhere else on 27.02.2023 and not with the CBI team. As far as arguments that he was a stock CBI witness are concerned, the same have no merits at all and are merely hollow, baseless arguments. The defence could not prove that PW17 had also been witness to any other CBI proceedings, though even if it was proved then also merely because PW17 had also joined CBI proceedings in some other matter, same would not in any manner effect the credibility of PW17 as a witness.
7.55 It was also argued by Ld. Defence Counsel that just like PW1, even PW17 did not give any signal to the CBI team after the alleged handing over of the undue advantage/Rs. 50,000/- to the accused by the complainant. It was argued that the fact that he did not give any signal itself proves that no such transaction took place and they were deposing falsely or else had they really witnessed the transaction they would have given the signal to CBI team. These arguments too are devoid of merits. It has already been discussed in detail that not only PW1 and PW17 but even the other members of team including PW15 had duly witnessed the handing over and acceptance of undue advantage/ Rs. 50,000/- by the complainant to the accused. Why PW17 did not give any signal was duly explained by him when he deposed, CC No. 84/2023 CBI v. Rahul Giri 159/163 during his examination in chief as under:-
"As it was decided during pre trap proceedings that the complainant would further meet and confirm about the demanded money from Depot Manager, the complainant did not give any signal after handing over the bribe amount to the accused."
7.56 Moreover during his cross-examination PW17 stated as "I did not tell anybody personally about the handing over of the bribe money. (Vol. It was visible to all the team members, including me)". PW1's statement in this regard read as "The signal was not to be given by me and the same was to be given by the complainant". It will be pertinent to highlight the statement made by PW3 during his cross-examination wherein he stated that the entire transaction between him and the accused was being witnessed by the CBI team including independent witnesses. The same reads as under:-
"After meeting the accused, we sat at the steps of the temple which is just outside the gate of the depot and had tea also. The witness was observing us from near the tea stall/shop. The other members of the CBI team were also there. Public persons were also present near the temple at a distance of around 20-30 feets. It is correct that people were coming around the place. The CBI team and the independent witness were at a distance of about 15 feets approximately."
7.57 PW15 the TLO also explained as to why the signal was not given by the complainant after the acceptance of undue advantage by the accused when he made the following statement during his cross-examination:-
"It is correct that the complainant was asked to give signals after the transaction was complete. (Vol. However, he was also told that the signal was to be given at the time when the role of Sh. Abhishek Jain was ascertained in the entire transaction as the bribe amount was demanded by the accused for Sh. Abhishek Jain)."
CC No. 84/2023 CBI v. Rahul Giri 160/163
7.58 It was also one of the arguments of Ld. Defence
Counsel that no search of the complainant was carried out on 27.02.2023 and only the accused's search was carried out. Furthermore, no hand wash of team members including the independent witnesses was carried out at the spot on 27.02.2023. These arguments have no merits at all. There was no necessity to carry out the search of the complainant at the spot i.e. after he had handed over the undue advantage/Rs. 50,000/- to the accused. The complainant's search was already carried out at the CBI office before the CBI team left for the spot/Nand Nagri Depot on 27.02.2023. This search was as proved by the prosecution witnesses was conducted by PW17 who further proved that the complainant was only allowed to carry his mobile phone and the demanded amount of Rs. 50,000/- was kept in his trouser's pocket by PW1. Their detailed deposition has already been discussed above in this regard. Hence at the spot the only search required to be conducted was of the accused so as to recover the demanded amount. Similarly there was no occasion for the hand wash of the CBI team members to be obtained at the spot. None of the CBI team members had dealt with the undue advantage/Rs. 50,000/- before their recovery from Umesh Kashyap at the instance of the accused, after it was kept in the complainant's pocket at the CBI office at the time of pre-trap proceedings. It was the accused who had accepted the said amount from the complainant and thereafter PW14/Umesh Kashyap to whom the amount was handed over, whose hand washes were required to be obtained to confirm the acceptance of undue advantage and as discussed above the positive hand washes confirmed that they had accepted, dealt with the said amount/undue advantage.
CC No. 84/2023 CBI v. Rahul Giri 161/163
7.59 As far as the defence's arguments, based upon Nahar
(supra) and Wasudeo Ramachandra (supra), that the prosecution case must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence are concerned, suffice would be to say that there is no dispute about the said legal position, however, in the case at hand prosecution has successfully established the guilt against the accused. More than sufficient, ample evidence has been brought on record which has been discussed in detail above and which squarely proves that the accused indeed committed the offence he was sent to face trial for. The evidence placed on record is of impeccable, sterling quality one which inspire confidence and is trustworthy and reliable. Nonetheless it is well settled law that though proof beyond reasonable doubt should be adduced in all criminal cases, however, it is not necessary that the same should be perfect. In fact there cannot ever be a perfect proof in any criminal trial.
Perfect proof can only exist in ideal situations which hardly exists. Investigation and collection of evidence is a cumbersome process and there are bound to be minor loopholes and lacunas even in the best of the investigation. But if the minor loopholes, contradictions, lacunas do not shake the basic foundation and there is sufficient material/substantive evidence, those loopholes and contradictions can be and rather should be easily ignored or else it will defeat the ends of justice. At this stage, it will be worthwhile to highlight the following observations made in Inder Singh & Anr vs The State (Delhi Admn.) 1978 AIR 1091:-
"Credibility of testimony, oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. While it is necessary that proof beyond reasonable CC No. 84/2023 CBI v. Rahul Giri 162/163 doubt should be adduced in all criminal cases, it is not necessary that it should be perfect. If a case is proved too perfectly, it is argued that it is artificial; if a case has some flaws, inevitable because human beings are prone to err, it is argued that it is, too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many, guilty men must be callously allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot away with it because truth suffers some infirmity when projected through human processes. Judicial quest for perfect proof often accounts for police presentation of fool-proof concoction. Why fake up ? Because the court asks for manufacture to make truth look true ? No, we must be realistic.
"We are satisfied that the broad features of the case, the general trend of the testimony and the convincing array of facts which are indisputable, converge to the only conclusion that may be reasonably drawn, namely, that the accused are guilty. Theoretical possibilities may not shake up, fancied weaknesses may not defeat, when verdicts are rested on sure foundations. Stray chances of innocence haunting the corridors of the court cannot topple concurrent findings of guilt.
We feel unhappy that, while infirmity in some aspect or other of this prosecution case should not invalidate the culpability which is otherwise, veraciously made out, tragic occurrences like this one......"
8. Therefore, in view of the above discussion, as the prosecution case of demand as well as acceptance and recovery stands duly established, accused Rahul Giri stands convicted for the offences u/s 7A of the Prevention of Corruption Act 1988.
9. Copy of the judgment be provided free of cost to the accused and let he be heard separately on the point of sentence.
Digitally
signed by
GAURAV RAO
GAURAV
Announced in the open court RAO
Date:
2025.08.27
on 23rd August 2024
15:16:08
+0530
(GAURAV RAO)
Special Judge CBI (PC Act)-01
Rouse Avenue Court
Complex, New Delhi
CC No. 84/2023 CBI v. Rahul Giri 163/163