Delhi District Court
Counsel Placed Explicit Reliance On ... vs . on 25 April, 2013
IN THE COURT OF SH. M.R. SETHI:
SPECIAL JUDGE-IV, (PC ACT) CBI: DELHI.
CC No. 29/2002 (Old No.)
CC NO. 22/2009 (New No.)
ID No. 02401R0359292002
CBI
Versus
Ishwar Singh,
S/o. Shri Chandgiram,
Constable, Delhi Police
R/o.C-53, Patel Garden, Kakrola More,
Uttam Nagar, New Delhi .....Accused
Case arising out of: FIR No. RC-06(A)/2002-DLI
Case is more than 10 years old.
Date of FIR : 14.02.2002
Date of Institution : 16.10.2002
Date of Final Arguments : 15.04.2013
CC No. 22/2009 Page1 of 49
Date of Judgment : 25.04.2013
JUDGMENT:
1 Succinctly, stated facts of the case are to the effect that a complaint was made by one Shri Kishore Kumar against accused Ishwar Singh in Office of CBI on 14.02.2002 to the effect that the accused posted as Sub Inspector at IGI Airport was demanding bribe from him to facilitate the complainant to do his work without any problem. As per allegations, the complainant was a Man Power Supplier duly approved by Ministry of Labour and was being harassed by Immigration Officers and staff posted at IGI Airport who were also harassing the out going workers despite their having all legal documents. He further claimed in the complaint that on 21.12.2001 when he had accompanied his workers to the Airport, Sub Inspector Ishwar Singh met him, claiming, that to avoid harassment, he should pay 100 U.S. Dollars per worker or equivalent money in Indian currency as illegal gratification. It was further mentioned in the complaint that the said amount reportedly was to be shared with ACP Ajay Krishna Sharma and Inspector Nand Ram. The complainant had further mentioned in the complaint that Sub Inspector Ishwar Singh had claimed that they had discretionary powers and if they detained anyone in the name of security, their order could not be challenged. He further mentioned that some of his workers were detained on CC No. 22/2009 Page2 of 49 21.12.2001 but were permitted to go on 27.12.2001 by Ishwar Singh on the condition that he (complainant) would pay him (Ishwar Singh) subsequently for allowing their departure and thereafter would be paying money in advance. The complainant had further claimed that thereafter Ishwar Singh had started pressurizing him on phone and had also visited his Office for the bribe amount. The complaint further mentioned that Ishwar Singh had given an ultimatum for payment of bribe money of Rs.20,000/- on 15.02.2002 by 7.00 A.M. at the Airport or face consequences. The complainant had further claimed that he informed Ishwar Singh that he could arrange Rs.10,000/- which he would be sending through his Manager viz. Shri Mukesh Kumar at the Airport in the morning of 15.02.2002. As infact as, the complainant did not want to pay the bribe amount, he approached the CBI by way of complaint seeking action against Ishwar Singh and other Immigration Officers. 2 After verification of the complaint, FIR was duly registered and thereafter two independent witnesses were arranged, pre-trap proceedings conducted, trap laid, accused apprehended and then arrested in the present matter.
3 On basis of aforesaid allegations, charge was framed against the accused on 04.06.2003 by my Ld. Predecessor, for having committed offence punishable U/s. 7 of the PC Act and for offence punishable U/s. 13(2) r/w CC No. 22/2009 Page3 of 49 Section 13(1) (d) of the PC Act.
4 During course of trial, in order to prove its case against the accused, prosecution examined as many as 14 witnesses and thereafter statement of accused was recorded. As accused choose not to lead defence evidence, arguments advanced by both the sides were heard and hence present judgment.
5 PW-1 Shri M.C. Attri was one of the independent witnesses who had joined the trap team. During course of his examination-in-chief, he claimed that on 14.02.2002, he had been requisitioned by CBI through his Senior Officer to attend CBI Office on 15.02.2002 and on reaching there, he was informed that he had to join a raid for apprehending S.I. Ishwar Singh at IGI Airport as he had demanded bribe. He further claimed that CBI officials showed him Rs.5000/- comprising of currency notes of denomination of Rs.500/- and a demonstration was given by CBI officials after treating the currency notes with powder. He claimed that no writing work was done in CBI Office before leaving for the Airport and thereafter they all left the CBI Office at 6.30 A.M. and reached Airport at about 7.00 A.M. Witness further claimed that he had been informed that he was a shadow witness and had to remain with the complainant. He further claimed that at the Airport he was behind the CBI officials and was present at the place from where passengers exited but could not notice where other persons had gone. He claimed CC No. 22/2009 Page4 of 49 that he was then called downstairs by CBI officials who were standing near a vehicle in the parking lot and then they sat in Police Station, IGI Airport where they had tea. He claimed that he was to act as a shadow to CBI Officer and not to the complainant and that one Ishwar Singh was apprehended by CBI. He specifically claimed that the accused present in Court was not the same person who was apprehended by CBI on that day. Hand wash of said person was also claimed to have been taken by CBI and colour of the hand was claimed to have turned red after washing. Witness claimed that his signatures were obtained by CBI officials after writing the said story.
After seeking permission from the Court, witness was cross-examined by ld. PP for CBI and during course of his cross-examination, witness claimed that he did not remember whether or not his statement was recorded by Inspector Pawan Kumar of CBI. He admitted that the other witness viz. Shri G.K. Behal, complainant Shri Kishore Kumar and his Manager Mukesh Kumar were also present in CBI Office and that amount of Rs.10,000/- consisting of 20 currency notes of Rs.500/- were produced by the complainant. He admitted that a Handing Over memo Ex.PW-1/A was prepared in respect of pre-trap proceedings and he signed the same. He denied the suggestion that the powder treated notes were given to Shri Mukesh Kumar with direction to give the same to Ishwar Singh on his specific CC No. 22/2009 Page5 of 49 demand. He further denied the suggestion that accused present in Court was the same person who was apprehended on that day. The entire case of prosecution was put to the witness by ld. PP, but the witness denied all the suggestions regarding correctness of the said case. However, he admitted that two blank cassettes with Audio Cassette Recorder were arranged in which their formal voices were recorded. He further admitted that he had been directed to accompany Shri Mukesh Kumar and proceed to Gate No. 3 of the Departure Wing of IGI Airport while Shri Kishore Kumar was directed to remain in the car parked in front of Police Station. He denied the suggestion that Shri Mukesh Kumar gave the tainted notes to Ishwar Singh on his demand (indicating through his hand) or that after accepting the bribe amount with his right hand, Ishwar Singh kept the same in the right side pocket of his pant. He denied having given any signal to the CBI team or that accused was apprehended after receipt of a signal. He admitted that money was recovered from pant pocket of Ishwar Singh by Shri G.K. Behal and the numbers tallied with the numbers recorded in the Handing Over Memo . Witness identified the currency notes Ex.P-1/1 to 20; right hand wash Ex.P-2; right side pant pocket wash Ex.P-3; cloth wrappers Ex.P-4 & 5; pant Ex.P-6 and his signatures on the same. He also identified his signatures on wrapper Ex.P-7, cassette Ex.P-8 and the cassette cover Ex.P-9. However, he denied the suggestion that he had remained throughout with Shri CC No. 22/2009 Page6 of 49 Mukesh Kumar or had heard the conversation with Ishwar Singh. He also identified his signature on the Recovery Memo Ex.PW-1/B and the Site Plan Ex.PW-1/C. He admitted that sample voice of accused was recorded in his presence on 19.03.2002 and identified his signature on the Memo Ex.PW-1/D in that regard. He denied the suggestion that he was deliberately not identifying the accused.
During course of cross-examination by ld.
Counsel for the accused, witness claimed that they had remained on the spot from 7.30 A.M. to 1.00 / 1.30 P.M. He further claimed that during the proceedings, he had left the spot for going to Toilet and for taking tea and that the proceedings continued in his absence. He further admitted having signed the papers on being asked to do so by CBI officials and trusting them. He specifically claimed that he did not go through the contents of the documents prepared on the spot and that sum of Rs.10,000/- was not given in his presence but was recovered in his presence. He denied the suggestion that the money was not recovered in his presence. 6 PW-2 Dr. Rajinder Singh claimed having compared the questioned audio cassettes with the specimen recording and proved his report as Ex.PW-2/A. He claimed that the questioned voice and the sample voice were probably of the same person (Ishwar Singh).
During course of cross-examination by ld.
Counsel for the accused, witness admitted that CBI Office and CC No. 22/2009 Page7 of 49 CFSL Office were in the same building. He further claimed that he did not have any degree or diploma in the field of Forensic Voice Identification but had done his PHd in Physics and was having 16 years experience in the field. 7 PW-3 Shri G.K. Behal was the other independent witness who had reportedly joined the trap team. During course of his examination-in-chief, he claimed that on 14.02.2002, he was directed by his Officer (Sales Tax Department) to report to CBI Office on 15.02.2002 and accordingly, he reached the CBI Office at 5.30 A.M. He claimed that he went upstairs where complainant was sitting in a room. He further claimed that his specimen voice and that of one Mr. Attri were recorded in a Tape Recorder and then a demonstration was given wherein some powder was applied on the currency notes and he was asked to count the same whereafter when he dipped his fingers in a glass of plain water, the water turned pink. A Memo was claimed to have been prepared in regard to the proceedings conducted in CBI Office. Witness identified his signature on the Memo Ex.PW-1/A. He claimed that the currency notes were given to the complainant with direction to give the same to the person who demanded it. He claimed that thereafter they left the CBI Office at about 6.30 A.M. and reached the Airport at 7.00 A.M. where he was made to wait in front of the Police Station IGI Airport. He claimed that one other CBI Officer was also with him and he went for natural task in a Toilet after informing CC No. 22/2009 Page8 of 49 the Officer. He further stated that as soon as he came out of the Toilet, he came to know that CBI people had apprehended one Sub Inspector who later on transpired to be a Constable of Delhi Police. Witness identified the accused as being the said person. He further claimed that on being asked to search the accused, he recovered the money from the pant pocket of the accused and numbers tallied with the numbers noted in the Handing Over Memo. He stated that perhaps right hand wash of accused was taken which turned into pink colour and his pant pocket wash also turned into pink colour. He claimed that the pink solutions were sealed in two separate bottles which were signed by him. He also identified his signatures on the Recovery Memo Ex.PW-1/B & Site Plan Ex.PW-1/C. He claimed that he was again called in CBI Office where specimen voice of accused was taken vide Memo Ex.PW-1/D. Witness also identified the case property and his signatures on the same.
Despite opportunity, the witness was never cross-examined on behalf of the accused.
8 PW-4 was the complainant Kishore Kumar.
During course of his examination in chief the witness claimed that he was into business of Manpower Export and hence had to deal with staff of Immigration Department at IGI Airport in that regard. He identified his signature on complaint Ex. PW-4/A which he claimed to have filed before CBI against one Ishwar Singh as he was demanding money for not harassing CC No. 22/2009 Page9 of 49 the persons sent by complainant at the Airport. He claimed that the complaint was typed in CBI office on his dictation and that on basis of his complaint it was decided that a raid be conducted on 15.2.02. He further claimed that on the said date i.e. on 15.2.02 he produced a sum of Rs.10,000/- or Rs. 12,000/- in denominations of Rs.500/- and Rs.100/-. The said currency notes were claimed to have been treated with some powder and some of the notes were claimed to have been marked with some signs. A demonstration regarding reaction of phenolphthalein powder with solution of sodium carbonate was also claimed to have been given. He further claimed that two independent witnesses were also present in the CBI office and some writing work was done regarding handing over of the currency notes and the demonstration. The powder treated currency notes were claimed to have been handed over to his Manager Mukesh who was present there with direction to give the tainted money to accused Ishwar Singh for being further handed over to ACP Ajay Kishan Sharma. Witness identified his signature on the handing over memo Ex. PW-1/A. After going through Ex. PW-1/A he claimed having produced sum of Rs.10,000/- which were 20 currency notes of denomination of Rs.500/-. He further stated that thereafter they all left CBI office for IGI Airport where he remained seated in his car in the parking lot while Mukesh, independent witnesses and CBI officers went towards gate of the Airport. He claimed that after some time Mukesh came CC No. 22/2009 Page10 of 49 back alongwith Inspector Pawan and some other persons and there was "Halla Gulla" and he heard that money had been given. He claimed that Mukesh informed him that he had given the money to accused. He further claimed that the person to whom money was handed over by his Manager was apprehended by CBI officers and was taken to IGI Police Station for further proceedings. Some formalities and writing work were claimed to have been done at the Police Station, but witness claimed that as he was standing outside, he did not know what formalities were done inside. He claimed that thereafter his signatures were taken on certain papers. He claimed that the currency notes were not recovered in his presence. He identified his signatures on the recovery memo Ex. PW-1/B and also the transcript preparation memo and the transcript Ex PW-6/1 & 2 respectively. When the cassette Q-1 (Ex.P-8) was played in court, witness identified voices of G.K. Behl, M.C. Attri, Mukesh but could not identify some of the voices therein.
After seeking permission from the court, witness was cross examined by Ld. PP for CBI and during course of his such cross examination, witness admitted that his statement U/s 161 Cr. P.C. had been recorded by Inspector Pawan Kumar. He further claimed that on 19.12.2001 four passengers who got Immigration through his Agency were detained at the Airport and could not board the flight. He claimed that he again arranged their tickets for the CC No. 22/2009 Page11 of 49 next day i.e. 20.12.2001 and himself went to the Airport alongwith them. He further claimed that on that day one person contacted him but he did not remember if the said person was Ishwar Singh or not. He admitted that the said person who met him demanded 100 US Dollars from him for not detaining the passengers of his Agency. The said 100 Dollars, it was claimed, had to be shared by the said person with ACP Ajay Kishan Sharma and Inspector Nand Ram. Witness further claimed that he did not pay bribe to the said person on 20.12.2001 and hence his passengers were again detained. He claimed that he did not remember if accused Ishwar Singh had agreed to let the aforesaid four passengers go to Cyprus on payment of Rs.20,000/- in all. Although he admitted that accused Ishwar Singh was taken to PS Airport for conducting post trap proceedings, he denied the suggestion that the bribe money was recovered from accused Ishwar Singh in his presence. He had further admitted that the transcript Ex. PW-6/2 was prepared in his presence by playing audio cassette. He claimed that on 29.5.2002 he had not gone to CBI office alongwith Mukesh who might have reached there before or after his arrival. He further claimed that at that time he had only identified his own voice. He denied that he had deliberately not identified voices of accused Ishwar Singh in the audio cassette played in court or had deliberately not identified his own voice. He denied the suggestion that he had been won over by the accused and CC No. 22/2009 Page12 of 49 therefore had not stated true facts.
During course of cross examination by Ld. Counsel for the accused, witness admitted that on 14.2.02 he had visited CBI office with a written complaint on his company's letter head against Immigration Officials mentioning name of ACP A.K. Sharma only. He further admitted that on 15.2.02 when accused Ishwar Singh was brought to CBI office under arrest, a fresh complaint was prepared on computer in CBI office and he signed it. He further admitted that on 15.2.02 another handing over memo was prepared and signed by him. He admitted that he had not seen accused Ishwar Singh nor he knew him before his arrest. He denied the suggestion that when accused was brought to CBI office after his arrest, voices of TLO Pawan Kumar, Shri Attri and the accused had been recorded. However, he admitted that all three of them had gone inside a room. He further admitted that TLO Pawan Kumar claimed that documents would have to be prepared afresh since ACP A.K. Sharma had not been arrested. He further admitted that Mukesh had expressed his displeasure before him on account of non arrest of ACP A.K. Sharma. He further admitted that in his presence Mukesh had claimed that the accused who was a poor Constable and had come to receive the loan amount had been arrested. He denied the suggestion that no incidents dated 21.12.2001 and 27.12.2001 as mentioned in Ex. PW-4/A took place. He also admitted that Mukesh Kumar CC No. 22/2009 Page13 of 49 had been picked up on way from CBI office to the Airport. He further admitted that on way he had a telephonic talk with ACP Sharma regarding the place where they had to meet at the Airport and A.K. Sharma told him that his Orderly Ct. Ishwar Singh would meet them near Gate No.3 and money should be handed over to him without disclosing the purpose. He further admitted that A.K.Sharma also told him that in case Ishwar Singh makes any inquiry regarding the said amount, he should be told that it was the loan amount owed to ACP Sharma. He further admitted that on 15.2.02 65 police officials headed by two SPs had gone for a raid on the officials of Immigration Department at Airport and that lakhs of ruppees were recovered at the Airport. He further admitted that house search of ACP A.K. Sharma had also been conducted and several documents seized from there. He admitted that subsequently ACP Sharma and other Sub Inspectors were all let off. He further admitted that while being taken to PS IGI Airport, accused was repeatedly shouting that he had been asked by ACP Sharma to collect the loan amount and that he never knew it to be bribe amount.
(The witness was last examined on 21.03.2011. Thereafter, on application filed by ld. PP, the witness was permitted to be recalled for cross-examination by ld. PP for CBI vide order dated 29.10.2011. Presence of the witness could thereafter be secured with great difficulty and he was further examined on 28.01.2013).
CC No. 22/2009 Page14 of 49
During course of his further cross-
examination by ld. PP for CBI, witness admitted that it was for the first time during course of his cross-examination by ld. Counsel for accused that he had stated in Court about being told to inform Ishwar Singh that it was the loan amount owed by him to ACP Sharma. He admitted that his statement was partly recorded on three different dates prior to his cross- examination by ld. Counsel for accused. He admitted that he had not stated to Inspector Pawan that money handed over to accused was return of loan amount due to ACP A.K. Sharma and had also not disclosed this fact to any other Officer of PS IGI Airport. He admitted that he did not have any subsequent talk with A.K. Sharma in that regard. He further admitted that the loan amount was more than the tainted money amount and that no document had been prepared in that regard. He claimed that infact loan was only a term used and rather it was money which had been extracted from him by Sharma. He denied the suggestion that what he had stated during course of cross-examination by ld. Counsel for accused was a false statement made in order to save the accused. He claimed that even prior to this incident, he had paid money to A.K. Sharma on two different occasions through some other persons who used to be in uniform of Immigration Officials and that only name used to be disclosed to him and the said name was found written on name plate of the persons concerned. He admitted that he had never lodged any CC No. 22/2009 Page15 of 49 complaint in respect of the said transactions. He specifically denied the suggestion that amount of money paid to Ishwar Singh was bribe amount paid on his specific demand and was not any loan transaction amount. He further denied the suggestion that he had changed his statement or added new facts at instance of the accused to save him.
During further cross-examination by ld.
Counsel for accused, witness admitted that when CBI Officers were holding on to the accused, he was shouting that he had been asked by ACP Sharma to collect his loan amount and that he never knew that it was bribe amount.
9 PW-5 Shri Sandeep Goel proved Sanction Order dated 01.08.2002 and identified his signature on the order Ex.PW-5/A. He claimed having accorded sanction for prosecuting the accused.
During course of cross-examination by ld.
Counsel for accused, witness denied having received any draft Sanction Order or a proforma from CBI. He claimed that he did not hear the audio cassette. He claimed that he being the DCP at FRRO was competent to grant sanction for prosecuting the accused and was his removing authority. 10 PW-6 Shri Mukesh Kumar was the person who as per case of prosecution had handed over the bribe amount to the accused. During course of his examination-in- chief, he claimed having accompanied his employer Shri Kishore Kumar to the Airport where money had to be CC No. 22/2009 Page16 of 49 delivered to the ACP. He claimed that while Shri Kishore Kumar kept sitting in the vehicle in the parking lot, he himself was directed to go upstairs where he would meet a boy named Ishwar to whom he had to deliver the money. Witness claimed that accordingly he went upstairs and gave money to Ishwar Singh who was apprehended by Police. He claimed that he went back to Shri Kishore and told him that he had not done the right thing since he had told him (witness) to pay money to the ACP while Ishwar Singh was a Constable. He further claimed that the said Ishwar Singh who was apprehended by Police was not present in the Court.
After seeking permission from the Court, witness was cross-examined by ld. PP for CBI. During course of his such cross-examination, witness claimed that his statement was not recorded by CBI. He admitted that Santokh Kumar, Lakhwinder Kumar, Gurcharan Singh and Mohan Singh, all sponsored by their firm had to go to Cyprus by Flight No. KU-382 on 19.12.2001 and were illegally detained by Immigration Department. He further admitted that their tickets were then arranged for Flight EK-703 for 20.12.2001 when again they were detained by Immigration Department. He denied the suggestion that Ishwar Singh posted at Immigration Office IGI Airport had managed their Immigration clearance for 29.12.2001. (He volunteered that infact Shri Kishore Kumar had spoken to one Mr. Sharma in that regard). He denied the suggestion that accused Ishwar CC No. 22/2009 Page17 of 49 Singh had demanded Rs.20,000/- from Shri Kishore Kumar for getting their Immigration clearance. He further denied the suggestion that accused Ishwar Singh had made telephone calls to him regarding demand of money or that when he asked the accused to reduce the amount, accused refused claiming that he had to share the same with Shri A.K. Sharma and Inspector Nand Ram. He denied the suggestion that on 14.02.2002 accused had threatened Shri Kishore Kumar either to pay Rs.20,000/- by 7.00 A.M. on 15.02.2002 or face consequences. He admitted that Shri Kishore Kumar must have spoken to him before lodging the complaint Ex. PW-4/A. He denied the suggestion of having accompanied Shri Kishore Kumar to office of SP, CBI on 14.2.02 for lodging the complaint Ex. PW-4/A. He further denied the suggestion that they were asked by the SP to come on 15.2.02 at 5.15 AM. He denied the suggestion that on 15.2.02 he alongwith Kishore Kumar reached CBI office where they were introduced to the independent witnesses or that the complaint Ex. PW-4/A was given to independent witnesses for satisfaction of genuineness of the same. He further denied the suggestions regarding conduct of pre-trap demonstration and proceedings in office of CBI. However, he admitted that powder treated currency notes of Rs.10,000/- were handed over to him and he kept the same in his lower right side pocket of jacket. He denied the suggestion that he had been directed to hand over the said amount to accused Ishwar CC No. 22/2009 Page18 of 49 Singh only on a specific demand. Rather he claimed that he was told by Kishore Kumar to deliver the money to one Ishwar who would meet him at the Airport. He further denied the suggestions regarding deputement of shadow witness M.C. Attri. He also denied the suggestion regarding arrangement of tape recorder and two cassettes having been made in CBI office. He denied the suggestion that at 6.15 AM all members of the trap team left CBI office for the Airport or that they reached there at 6.55 AM. He claimed that only he and Kishore Kumar had reached the Airport. He denied the suggestion that on reaching the Airport, all members took suitable positions or that voice recorder was handed over to him with direction to switch on the same prior to contacting accused Ishwar Singh. Witness admitted that he was supposed to meet accused Ishwar Singh at Gate No.3 of Departure Wing of IGI Airport as was told to him by Kishore Kumar. He claimed that as soon as he was to climb up the stairs and reach first floor in front of Gate No.3, he found accused Ishwar Singh waiting prior to his reaching there. He denied the suggestion that he had a formal talk with accused there or that accused asked about Kishore Kumar. Witness identified his signature on the handing over memo Ex. PW-1/A. He further denied the suggestion that while coming down Ishwar Singh asked him if he had brought the money or not or that at that time he himself had asked the accused to keep his share from the money. Witness however admitted CC No. 22/2009 Page19 of 49 having handed over sum of Rs.10,000/- to one Ishwar Singh at the Airport which he kept in his right side pant pocket and in the meanwhile they reached near car of Kishore Kumar and informed him about the payment. He denied the suggestion that any conversation then took place between Kishore Kumar and Ishwar Singh. He further denied the suggestion that on receiving signal from Shri Attri, CBI officials reached the spot or caught hold of Ishwar Singh. He specifically claimed that no recorder had been given to him, and denied the suggestion of any recorder having been played at that time wherein recording pertaining to demand and acceptance of bribe was there. He admitted that hands of Ishwar Singh were got washed and the color turned pink. He admitted that the pink water was sealed and a paper slip pasted on it. He did not remember if the paper slip contained the words RHW. He further admitted that the currency notes given by him to Ishwar Singh were subsequently recovered by G.K. Behl from his right side pant pocket. He denied that the numbers of those notes were then tallied with those mentioned in the handing over memo in his presence. He denied about pocket wash of pant of the accused having been taken. He claimed that he had been made to sit outside and was called after the proceedings had been recorded and his signatures obtained. He identified his signature on the recovery memo Ex. PW-1/E. Although he admitted his signatures on the memo and transcript Ex. PW-6/1 & 2, he denied that on 29.5.02 the CC No. 22/2009 Page20 of 49 cassette was played and the documents prepared in his presence. When the cassette was played he failed to identify the voices contained therein. He however admitted that he had given bribe money to the person at the Airport on instructions of his employer Kishore Kumar so that no hurdles could be created by him in the export of manpower by them. He however denied the suggestion that he did not identify the voices having been won over by the accused or had deposed falsely.
During course of cross examination by Ld. Counsel for the accused witness admitted that the person to whom he had paid Rs.10000/- on 15.2.02 was seen by him for the first time. He claimed that he subsequently came to know that accused was Orderly of ACP, Immigration, AFRRO. He claimed that he did not know whether or not accused had no concern with the immigration check duty. He further admitted that while going to the Airport from their office, Kishore Kumar had telephonically spoken to ACP Sharma. He admitted that Kishore Kumar had given him Rs.10,000/- with direction to hand over the same to one Ishwar Singh who would be sent by ACP Sharma and that Kishore Kumar had also told him that he should not tell Ishwar Singh that the said amount of Rs.10,000/- was bribe amount meant for ACP Sharma. He admitted that Ishwar Singh was present at Gate No.3 with two more persons when he went to deliver Rs. 10,000/- to Ishwar Singh, but denied the suggestion that the CC No. 22/2009 Page21 of 49 said two persons had been telling Ishwar Singh to rush back home since his wife was seriously ill. He denied the suggestion that even after the incident, CBI officers used to come to his office for obtaining his signatures on blank papers. He claimed that all the papers were got signed at the Airport when accused was apprehended and he had signed the papers without reading the same and only at instance of Kishore Kumar. He could neither deny nor affirm the suggestion that accused had not demanded any bribe. He claimed that only Kishore Kumar could tell about it. 10 .A. The CFSL report (D-7) was tendered on record by Ld. PP being per-se admissible U/s 293 Cr. P.C. The report was Ex. PX.
11 PW-7 Shri Bharat Chaturvedi during course of his testimony proved his letter Ex. PW-7/1 regarding non availability of Flight Folder of EK-703/20 DEC 2001. He also identified his signature on the same.
During course of cross examination by Ld. Counsel for accused he claimed that he did not remember the exact time of departure of the said Flight.
12 PW-8 Shri D.K. Singh was dropped by Ld. PP being unnecessary. However, subsequently an application U/s 311 Cr. P.C. was filed by Ld. PP and vide order dated 16.2.2012 passed by this court, prosecution was permitted to resummon and examine the witness who was initially dropped. Accordingly, the witness appeared for his CC No. 22/2009 Page22 of 49 statement on 3.5.2012.
During course of his examination in chief witness claimed that he was a member of trap team of this case when raiding party was constituted under TLO Inspector Pawan Kumar. He claimed that as far as he remembered the raid was conducted on 20.2.2002 and the bribe amount was Rs.20,000/-. Written memo was claimed to have been prepared in respect of the pre-trap demonstration proceedings. Witness identified his signature on the said memo Ex. PW-1/A. (Upon the witness desiring to refresh his memory, the document was handed over to the witness who after going through the same submitted that the date was 15.2.02 and the bribe amount Rs.10,000/-.) Thereafter, witness deposed about the trap proceedings as had been detailed in case of the prosecution. He claimed that the bribe amount was handed over by Mukesh to the accused after they had reached the parking lot where some talks took place between the complainant, Mukesh and the accused.
During course of cross examination by Ld. Counsel for the accused, witness denied the suggestion that he had been briefed by the PP in his office prior to his deposition. He however admitted that he had refreshed his memory. He claimed that without seeing the documents he could not say as to who had written the same. After seeing the documents, witness claimed that the document Ex. PW-1/B(D-4) was in handwriting of Inspector Vivek Dhir while CC No. 22/2009 Page23 of 49 other documents were computer generated. He admitted that as per site plan Ex.PW-1/C his positions had been shown at points F & K. He claimed that he was earlier at point F and then moved to point K near the parking lot. The trap team was claimed to have collected in CBI office at around 5.30 AM and he claimed that as far as he remembered, they had collected in office room of TLO Inspector Pawan. He denied the suggestion that computer facility in ACB had been provided in the year 2003. He claimed that he was seeing computer there since 1996. He admitted that Chamber of Inspector Pawan Kumar was a Wooden structure 5 ft. x 5 ft. in the passage. He denied the suggestion that there was no computer in the said chamber. He claimed that as he was not an expert, he could not say if the complaint Ex.PW-4/A and the handing over memo Ex. PW-1/A were prepared on one and the same computer. He could not tell name of the SP who directed him to join proceedings of this case. He claimed that all the facts and acts done during pre-trap proceedings in office of CBI were recorded in the handing over memo Ex. PW-1/A. He further stated that the complaint dated 14.2.02 moved by the complainant had been shown to both the independent witnesses and volunteered that the date had been wrongly mentioned as 14.1.02 in Ex. PW-1/A. He denied the suggestion that the complaint and the handing over memo had been prepared after the accused was brought to CBI office after his apprehension. He further claimed that it CC No. 22/2009 Page24 of 49 was the complainant who knew the exact spot where accused would be available. He further claimed that the trap team had left CBI office at about 6.00 AM in 2-3 vehicles and had reached IGI Airport at 7.00 AM. He denied the suggestion that 50-60 CBI officers had gone to the Airport in mini bus of CBI at the time of incident. He claimed that he himself was at a distance of about 20 steps when handing over of bribe money took place. He claimed that there was not much rush at the Airport at the time of incident and only 2 - 4 public persons were present near the spot and 8 - 10 collected when accused was apprehended. He claimed that he had no knowledge if residence of the ACP A.K. Sharma had also been raided. He denied the suggestion that on15.2.02 about 50- 60 CBI officers had gone to IGI Airport for general raid and claimed that he could not say if their target was to apprehend ACP A.K. Sharma and 7 - 8 other police officers of immigration department. He denied the suggestion that lakhs of rupees were recovered from them. For want of knowledge, witness claimed that he could not say if the original complaint made by Kishore Kumar was on letter head of his concern or if the original complaint had been torn off and thereafter a subsequent fresh complaint prepared in CBI office. He claimed that he himself had not entered the departure lounge of IGI Airport. He claimed that they returned back to CBI office at 10.30 AM. He denied the suggestion that he had never joined the trap team or had never gone to IGI CC No. 22/2009 Page25 of 49 airport. He denied that nothing as stated by him ever took place or that he only signed the documents in office of CBI. He denied the suggestion that he was deposing falsely. 13 PW-9 Inspector Vivek Dhir was also one of the members of the trap team. He proved copy of FIR Ex.PW-9/1 and identified signature of the then S.P. Shri Kamal Pant on the same. Thereafter, witness deposed about facts of the case as alleged by prosecution against the accused. He stated about pre-trap proceedings, the trap and the post-trap proceedings. Witness also identified his signatures on the documents.
During course of cross-examination by ld.
Counsel for the accused, witness claimed that he did not know as to what offence took place on 14.02.2002 at 1100 hours. He claimed that he was not aware as to what had happened on 14.02.2002 as he had joined the proceedings on 15.02.2002 at about 5.00 A.M. He claimed that he did not know if the complaint Ex.PW-4/A and the Handing Over Memo Ex.PW-1/A were typed on the same Computer or not. He denied the suggestion that the complaint Ex.PW-4/A was given by the complainant on 15.02.2002. He claimed that he was not aware if on 14.02.2002 the complainant had given a general complaint against Immigration Officials and ACP Sharma. He denied the suggestion that the FIR was prepared on 15.02.2002. He denied the suggestion that he was not a witness of fact or had merely deposed on the lines of his CC No. 22/2009 Page26 of 49 statement U/s. 161 Cr.P.C. He could neither deny nor affirm that measurement of cabin / chamber of Inspector Pawan Kumar was 5 ft. X 5 ft. He claimed that Computer facility was available in the said cabin in the year 2002. He further claimed that only one trap party was constituted and he did not know if on that date any search was also conducted in the house of ACP Sharma. He denied the suggestion that Mukesh Kumar did not report in the CBI Office in the morning of 15.02.2002. He claimed that he himself had not asked the complainant as to why he had made complaint after 2 ½ months and had not put any question to him about the four persons who were likely to be sent to Cyprus. He denied the suggestion that Kishore Kumar had given his complaint on letterhead of his firm which was torn off and thereafter complaint Ex.PW-4/A prepared. He denied the suggestion that the Handing Over Memo Ex.PW-1/A and the complaint Ex.PW-4/A were typed on the same Computer. He further claimed that it was Inspector D.K. Singh who applied Phenolphthalein Powder on the currency notes but he did not remember name of the person who had touched the notes during demonstration. He also did not remember as to how many vehicles were used for going to IGI Airport. He denied the suggestion that one Mini Bus, vehicle of the complainant and two other official vehicles of S.P. were used in that regard. He claimed that his position was at point Mark 'G' as reflected in the Site Plan Ex.PW-1/C. He claimed that he did CC No. 22/2009 Page27 of 49 not enter the Departure Hall. He denied the suggestion that on 15.02.2002 60 - 70 CBI officials had loaded in one Mini Bus and three other vehicles and had gone to IGI Airport for conducting general raid against Immigration Officials specifically against ACP Sharma. To a specific question, he claimed that he was at point Mark 'G' as reflected in the Site Plan only before apprehension of accused and thereafter he was at point Mark 'O'. He could not tell the distance between the two points. He admitted that there was a rush of passengers and visitors in the Vicinity of IGI Airport on the day of incident but claimed that as they already had independent witnesses with them, they did not attempt to join any other person. He denied the suggestion that both SPs of CBI were present at the place of occurrence. He admitted that there were no tick marks on number of GC notes noted in the Handing Over Memo. He denied the suggestion that he had not seen any occurrence or was deposing falsely. 14 PW-10 Inspector Manoj Kumar was the Investigating Officer to whom investigation was marked after the trap proceedings were conducted. Permission in that regard was claimed to have been given by ld. Court of Shri M.L. Sahani Special Judge. He claimed that during course of his investigation, he recorded statements of witnesses, recorded specimen voice of accused & got prepared Transcript. He further claimed having written a letter to AFRRO for preserving some original records. Carbon copy of CC No. 22/2009 Page28 of 49 said letter was proved as Ex.PW-10/2. He further claimed having seized documents vide Memo Ex.PW-10/3. He also proved on record the documents seized by him. He claimed having correctly recorded statements of witnesses.
During course of cross-examination by ld.
Counsel for accused, witness submitted that as all the four passengers had reportedly already gone abroad, he did not make any attempt to interrogate any of them. He further claimed that he did not ask the complainant anything in respect of delay of more than two months in lodging the complaint. As he did not recollect, witness claimed that he could not say whether or not he had enquired from the complainant if he had collected bribe amount from the four passengers. Witness admitted that at the relevant time, accused was Office Orderly of ACP A.K. Sharma and that only ASI and SI are posted on Immigration Check Duty. He could not say if accused was not on duty on 19th , 20th , 21st , 27 th & 29th December, 2001. He could not say if he had made enquiries or had found that accused was not on duty on those dates at the relevant time of departure of the Flights in question. He denied the suggestion that Computers had been provided to CBI Inspectors only in 2003. He could not say whether or not there was a Computer in Chamber of Inspector Pawan Kumar in February, 2002. He further denied the suggestion that no prima-facie case was found to be made out against the accused or that he had prepared a closure CC No. 22/2009 Page29 of 49 report in favour of the accused. He denied that present false case was made out against the accused under pressure of S.P. Shri Ramashastri. He claimed that as he had no knowledge he could not say if ACP A.K. Sharma and 10 -11 other officials posted in the Immigration were rounded up and brought to Office of CBI or if lakhs of rupees had been recovered from Toilets of Airport. He claimed that he had no knowledge if S.P. Ramashastri did his Police training under father-in-law of ACP Sharma or if it was for this reason that ACP Sharma was saved and accused falsely implicated. He could not say whether or not Transcript of conversation prepared by Inspector Pawan Kumar was handed over to him during investigation. He admitted that Ex.PW-11/5, 6, 7 & 8 bore Immigration Stamp of 29.12.2001 D-Shift. He could not say whether or not accused was on duty in D-Shift on that day. He further denied the suggestion that it had transpired during investigation that no incident had occurred on 21.12.2001 or 27.12.2001 as were mentioned in the FIR. He denied the suggestion that he was deposing falsely. 15 PW-11 Inspector P.P. Singh proved on record computerized lists dated 23.04.2002 in respect of Mohan Singh, Gurcharan Singh, Santokh Kumar and Lakhwinder Kumar logged on 29.12.2001 at 23:59:59 at IGI Airport as Ex.PW-11/1 to 4. He also proved their Embarkation Cards as Ex.PW-11/5 to 8, the duty chart / flight chart dated 19.12.2001 as Ex.PW-11/9 and that of CC No. 22/2009 Page30 of 49 20/21.12.2001 as Ex.PW-1/10 and of 28/29.12.2001 as Ex.PW-11/11 and of 14/15.02.2002 as Ex.PW-11/12. He further claimed that on 19.12.2001 Ishwar Singh was on duty as Office Orderly of AFRRO in the Departure / Left Shift-A (Day) and on 20/21.12.2001 in the Departure / Left Shift A (Night) and on 28/29.12.2001 in Departure /Left Shift A (Night) and on 14/15.02.2002 in Departure / Left Shift A (Night). The daily Diary entries of the FRRO for the aforesaid dates were proved as Ex.PW-11/13 to 17. He claimed having attested all the copies of documents after comparing the same with originals maintained in the Office. He further claimed that he did not remember if Inspector Nand Ram was posted in Immigration at IGI Airport during December, 2001 to February, 2002.
After seeking permission from the Court, witness was cross-examined by ld. PP for CBI and during course of his cross-examination he admitted that his statement was recorded by S.I. Manoj Kumar of CBI U/s. 161 Cr.P.C. He further admitted that no Inspector by the name of Nand Ram was posted in the Immigration, IGI Airport during December, 2001 to February, 2002.
During cross-examination by ld. Counsel for the accused, witness admitted that he was posted as Inspector (Admn.) in FRRO IGI Airport, New Delhi since 16.01.2002. He admitted that the staff posted was divided in four shifts i.e. A, B, C & D and that at the relevant time, all CC No. 22/2009 Page31 of 49 four Shifts had the same timing i.e. Morning Shift was from 8.00 A.M. to 7.00 P.M. and the Night Shift from 7.00 P.M. to 8.00 A.M. He further admitted that a staff member after working in the Night Shift between 7.00 P.M. to 8.00 A.M. would come back to duty after 48 hours during Day Shift. He claimed that on 19.12.2001 Ishwar Singh was on Day duty between 8.00 A.M. to 7.00 P.M. He further stated that on the back side of Ex.PW-11/9 under the heading 'MFT', against Flight at Srl. No. 3, time mentioned was '07:00'. He further stated that during intervening night of 20/21.12.2001 Ishwar Singh was on Night duty between 7.00 P.M. to 8.00 A.M. and as per Ex.PW-11/10 there was no Flight No. EK-703 during the said period. He further stated that in the intervening Night of 28/29.12.2001 Ishwar Singh was on night duty between 7.00 P.M. to 8.00 A.M. and that as per Ex.PW-11/11, there was no Flight No. RJ-193 during the said period. He claimed that the Shift i.e. A, B, C or D was not clear from impression of Immigration seal on Ex.PW-11/5 to 8. He further admitted that Ex.PW-11/1 depicted check in time of Mohan Singh as 09.27.35 and Ex.PW-11/2 shows the check in time of Gurcharan as 09.30.51 and Ex.PW-11/3 shows check in time of Santokh Kumar as 09.33.35 and Ex.PW-11/4 shows the check in time of Lakhwinder Kumar as 09.30.15. He claimed that he did not remember whether or not on 15.02.2002 Shri A.K. Sharma was posted at AFRRO . He also claimed ignorance as to if in February, 2002, House search of the said CC No. 22/2009 Page32 of 49 Shri A.K. Sharma was conducted by CBI. He denied any knowledge about the fact that on 15.02.2002 60 - 70 employees of CBI had raided the Immigration Department and recovered several lakhs of rupees or if several employees of Immigration Department were rounded up and taken away. 16 PW-12 Shri Pawan Kumar was the Officer to whom investigation was marked after registration of FIR. During course of his examination-in-chief witness reiterated allegations of prosecution as had been alleged against the accused. He deposed about pre-trap demonstration, the trap and post-trap proceedings. However he claimed that the powder treated currency notes had been handed over to Mukesh Kumar in the CBI Office. He further claimed that as per the independent witness, tainted money had been handed over by Mukesh to Ishwar Singh while going towards the parking lot. He further stated that the words 'Right Pant Pocket Wash' were written on the paper slip affixed on the bottle containing the pocket wash. He also identified the case property and his signatures on the documents.
After seeking permission from the Court, witness was cross-examined by ld. PP for CBI and during course of such cross-examination he claimed that as he did not remember, he could not say if while moving towards the Car parking Mukesh had put his right hand in the right side pocket of jacket worn by him or if he took out a bunch of tainted currency notes with his right hand which he extended CC No. 22/2009 Page33 of 49 towards accused Ishwar who took the same with his right hand and kept the notes in right side pocket of his pant. He claimed that the Recovery Memo Ex.PW-1/B was not prepared on his dictation and that he was the TLO and not the Team Leader. He further denied the suggestion that being the TLO, he was singularly responsible for accuracy and fairness of the trap proceedings. He further claimed that he had not read the Recovery Memo in totality before signing it and could not say anything in respect of facts mentioned at point P to P-1 in the Recovery Memo. Witness volunteered that infact he had already received orders qua his repatriation to his Parent Cadre in U.P. and S.I. Manoj had enquired from him about his availability in Delhi on a particular date claiming that his statement was to be recorded on that day. He claimed that infact his statement was never recorded by examining him in this case. He further admitted that the bottles containing washes had been sent to CFSL by him and that on direction of the S.P., he handed over charge of this case to S.I. Manoj. He denied the suggestion that he was deposing falsely regarding his having not witnessed transfer of tainted money from Mukesh Kumar to the accused. He further denied the suggestion that the Recovery Memo Ex.PW-1/B was prepared on his dictation or that he had been won over by the accused.
During course of cross-examination by ld.
Counsel for the accused, witness admitted that his Chamber CC No. 22/2009 Page34 of 49 on the Ground Floor of CBI Office measured 5ft. X 5 ft. He denied the suggestion that pre-trap proceedings had been conducted in Office of S.P. or that at the relevant time computer facility was only available in Chamber / Office of the S.P. and no where else in CBI. He further claimed that as he did not remember he could not say if the complaint of Kishore Kumar handed over to him by the S.P. was on letterhead of Kishore Kumar or if it was against Immigration Officials particularly ACP A.K. Sharma. He further denied the suggestion that on 15.02.2002, 60 - 70 CBI Officials alongwith 2 S.Ps. had gone to IGI Airport to conduct a general search or if during that raid ACP A.K. Sharma and 8 to 10 Sub Inspectors had been rounded up or that lakhs of rupees were recovered. He denied the suggestion that the complaint as well as the Handing Over Memo were both prepared on computer of the S.P. or that the original complaint handed over to CBI by Kishore was torn or the present complaint was subsequently typed to suit the case regarding arrest of accused. He admitted that a person on the Ground Floor in the parking lot could not see Gate No. 3 of the Departure Lounge which was on the First Floor. He claimed that he had not verified from the complainant factum of four of his workers having gone from Airport on 27.12.2001 or about their visit to the Airport on 21.12.2001. He claimed that he could not say if both the incidents of those dates as mentioned in Ex.PW-4/A had never taken place. He admitted that there was no tick CC No. 22/2009 Page35 of 49 mark on the numbers of currency notes in Handing Over Memo Ex.PW-1/A. He denied the suggestion that the actual Handing Over Memo which contained the tick marks in ink had been destroyed or in its place present Memo Ex.PW-1/A was prepared. He admitted that he did not make any attempt to examine the four passengers in question. He denied the suggestion that after apprehension, accused refused to have demanded or having accepted any bribe or that he claimed that he had been asked by ACP A.K. Sharma only to collect his loan amount or that he (accused ) did not know that it was bribe amount.
17 PW-13 Shri P.K. Pandita claimed that during 2001-02, while he was posted as Jr. Intelligence Officer, Grade-I, FRRO, IGI Airport, New Delhi, clearing the passengers at the Immigration was a part of his duty. He proved on record the Embarkation Cards Ex.PW-11/5, 6, 7 & 8 and identified his initials on the same as also his writings on the back side which he identified as Ex.PW-13/1, 2, 3 & 4.
During course of cross-examination by ld.
Counsel for the accused, witness claimed that the passengers in question were holding a recommendation letter for their quick clearance and when he showed the same to his Superior Officers, he was directed to clear the passengers. He denied the suggestion that the said letter was written by ACP Shri A.K. Sharma. He further admitted that the clearance was given while he was on duty in the D-Shift. He CC No. 22/2009 Page36 of 49 clarified that the Shifts A, B, C & D had no relation to postings during particular time of the day but only denoted the group in which the employees were put during course of the day. He denied any suggestion to contrary. He could not say if Ishwar Singh was on duty in Shift-A on 28 / 29.12.2001. 18 PW-14 Shri Ajay Gupta identified his signatures on the documents already exhibited as Ex.PW-10/4. He claimed having signed the photocopies after checking the same from the originals in the Office record of Kuwait Airways. He further stated that the Boarding Passes were in respect of Lakhwinder Kumar, Santosh Kumar, Mohan Singh and Gurcharan Singh and the passengers had been off loaded by the Immigration staff from the Flight in respect of which Boarding Passes were issued on 19.12.2001.
During course of cross-examination by ld.
Counsel for the accused witness admitted that as on 19.12.2001, he was not working with Kuwait Airways and was not posted at IGI Airport. He could not tell names of the Immigration Officials who had off loaded the four passengers. 19 No other witness was examined on behalf of the prosecution and accordingly prosecution evidence was closed and thereafter statement of accused was recorded U/s. 313 Cr.P.C. without oath. During course of his statement, accused denied having demanded any bribe from the complainant or having received any bribe amount. Rather, he claimed that on the intervening night of 14/15.02.2002, he CC No. 22/2009 Page37 of 49 was on duty at IGI Airport, Immigration Office when on receipt of information regarding ill-health of his wife, he had gone to his Superior Shri A.K. Sharma seeking permission to leave. He claimed that however Shri Sharma told him that one of his acquaintances was coming to return loan of Rs.10,000/- and asked the accused to get the said amount and leave after handing it over to Shri Sharma. Accused claimed that accordingly he went towards the out gate i.e. Gate No. 3 where he met a person who handed over to him Rs.10,000/- claiming that the same were to be delivered to Shri A.K. Sharma. Accused claimed that he put the money in his pant pocket when he was immediately apprehended by CBI official Shri Pawan. He claimed that he repeatedly shouted that he had not taken any bribe but no one listened to him. As per the accused, after he was taken to CBI Office, the original complaint on letterhead of the complainant was torn and a fresh complaint and a fresh Handing Over Memo were typed on computer in CBI Office. Accused had claimed his false implication in this case. He further stated that he did not want to lead any defence evidence.
20 During course of his submissions, it was submitted by ld. PP for CBI that the accused himself has admitted having received sum of Rs.10,000/- from Shri Mukesh Kumar and that the said amount having been admittedly recovered from possession of the accused, onus shifted on the accused to show that the said amount was not CC No. 22/2009 Page38 of 49 bribe. As per ld. PP for CBI, the accused having not led any evidence in his defence, he had failed to discharge the onus. It was further submitted that as per case of prosecution and defence raised by the accused, after being apprehended in Parking Lot of IGI Airport, the accused was taken to P.S. IGI Airport. It was submitted that the accused himself was a Delhi Police employee but still did not make any complaint to the SHO, P.S. IGI Airport nor told the SHO about his false implication. It was further submitted that the independent witness Shri M.C. Attri although not supporting case of the prosecution had admitted his signatures on the Handing Over Memo Ex.PW-1/A. While referring to his testimony, it was pointed out by ld. PP that the witness had admitted that the Tape Recorder was played which confirmed the demand and acceptance of bribe by the accused and also the recovery of tainted amount from possession of accused. As per Ld. PP, the witnesses had identified their signatures on the documents prepared and infact had supported allegations of prosecution in material particulars. It was further submitted that whatever was stated by the two independent witnesses and the complainant in contradiction to case of the prosecution was so stated to help the accused. It was prayed that accused be convicted and punished in accordance with law.
Ld. Counsel for the accused on the other hand submitted that prosecution was required to prove its CC No. 22/2009 Page39 of 49 case to the hilt while the accused was only required to probablize his defence and give a reasonable explanation which is sufficient to put in doubt case of the prosecution. As per ld. Counsel, it was settled principle of law that benefit of doubt has to be granted to the accused. In this regard, ld. Counsel placed explicit reliance on Jastinder Singh Vs. State (2001 Crl.J. Page 11).
21 It was also submitted by ld. Counsel that mere recovery of tainted currency notes from possession of accused was not sufficient to raise any presumption against the accused and that mere recovery in absence of any supportive circumstance was not sufficient for conviction of the accused. It was pointed out by ld. Counsel that neither the complainant PW-4 nor his Manager Shri Mukesh who reportedly had handed over the currency notes to the accused nor two independent witnesses viz. PW-1 Shri M.C. Attri and PW-3 Shri G.K. Behal had supported case of the prosecution as alleged in Court. Various contradictions in testimonies of these witnesses had also been pointed out by ld. Counsel. Yet another line of argument advanced by ld. Counsel was regarding falsity of facts mentioned in the FIR. While drawing attention of this Court towards FIR, it was submitted that as per FIR, occurrence took place on 14.02.2002 at 11.00 A.M. It was submitted by ld. Counsel that nothing whatsoever happened at that time as per prosecution evidence led in Court. It was also pointed out that although the FIR proved on CC No. 22/2009 Page40 of 49 record was dated 14.02.2002, the Handing Over Memo as well as the Recovery memo mention date of the FIR as being 15.02.2002. On basis thereof, it was sought to be submitted that FIR was anti-timed and anti-dated and could not be relied upon. Attention of this Court was also drawn to testimony of PW-4 Shri Kishore Kumar wherein he had claimed having visited CBI Office with a written complaint on the letterhead of his Company on 14.02.2002 and wherein he had further claimed that the complaint filed in Court had been subsequently typed in CBI Office after accused had been arrested and brought to CBI Office. Attention of the Court was also drawn towards his testimony where he claimed that another Handing Over Memo was prepared on 15.02.2002. On basis thereof, it was submitted that all the documents prepared in this case were forged and fabricated and no reliance could be placed on the same. It was further submitted by ld. Counsel that although the complaint mentions about some earlier incidents having occurred on 21.12.2001 and 27.12.2001, infact, as per evidence led in Court and documents proved on record, nothing had happened on these two dates. It was prayed that accused be acquitted. 22 This Court has given thoughtful consideration to arguments advanced and has also perused the records.
23 It had been inter-alia observed in Jastinder Singh's case (Supra) that prosecution is required CC No. 22/2009 Page41 of 49 to prove the criminal charge with rigour & certainity while the accused has only to put forward a probable or reasonable explanation sufficient to throw doubt on the prosecution case. Reliance was also placed in the said pronouncement on Rabindra Kumar Dey Vs. State (AIR 1977 SC 170) wherein it was observed that the Evidence Act does not contemplate that the accused should prove his case with the same strictness and rigour as the prosecution is required to prove the criminal charge and that infact it is sufficient if the accused is able to prove his case by the standard of preponderance of probabilities as envisaged U/s. 5 of the Evidence Act. It was further observed that where probability of version given by accused throw doubt on the prosecution case, the prosecution cannot be said to have established the charge beyond reasonable doubt.
24 In Surajmal Vs. State (1979) 4 SCC 725 it was observed that mere recovery of tainted money divorced from the circumstance under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The aforesaid observation was approved in C.M. Girish Babu Vs. CBI (AIR 2009 Supreme Court 2022). Similar observations had been made in Banarsi Das Vs. State (AIR 2010 Supreme Court 1589) wherein it was observed that mere recovery of bribe money from the accused was not sufficient to prove the offence.
25 Coming back to facts of the present case,
CC No. 22/2009 Page42 of 49
investigation appears to have been initiated on basis of a complaint (Ex.PW-4/A) made by one Shri Kishore Kumar against one Ishwar Singh. What has transpired during course of evidence led on record is that this complaint was not the original complaint lodged by the complainant with CBI. In this regard, it would be advisable to refer to testimony of the complainant PW-4 Shri Kishore Kumar who claimed that he had visited CBI Office on 14.02.2002 with a written complaint recorded on his Company's letterhead and only name of ACP Shri A.K. Sharma figured therein and that on 15.02.2002 when accused was brought to CBI Office under arrest, fresh complaint was prepared on computer of CBI Office and he was asked to sign the same. This by itself puts in doubt the very basis of prosecution story.
26 As per case of the prosecution, before leaving the CBI Office, pre-trap proceedings were done whereunder Handing Over Memo was prepared. As per PW-1 Shri M.C. Attri who was one of the independent witnesses joined in the trap team , no written work was done at CBI Office before leaving for the Airport. As already mentioned, PW-4 had claimed that a fresh Handing Over Memo was prepared on 15.02.2002. Fact that the FIR mentions even the office address of the accused while nothing to that effect had been mentioned in his complaint on basis of which FIR was registered, also puts in doubt genuineness of contents of the FIR. Not only this, FIR in this case was reportedly registered CC No. 22/2009 Page43 of 49 on 14.02.2002 while the documents prepared i.e. Handing Over memo, Recovery Memo, etc. mention date of FIR as being 15.02.2002. Apparently, there has been an enormous lapse in this regard on part of the Investigating Agency which apparently had not approached the matter with clean hands. 27 The Recovery Memo (Ex.PW-1/B) mentions at page No. 4 that " in token of its correction and having compared, Shri M.C. Attri ticked on the number with pen on the Handing Over Memo". This was in connection with the serial numbers of the currency notes mentioned in the Handing Over Memo and those recovered from possession of the accused. Now a perusal of the Handing Over Memo (Ex.PW-1/A) reveals that there is no tick mark with pen on the currency note numbers mentioned therein. This fortifies claim of the accused regarding the original Handing Over Memo having been replaced by this Memo on 15.02.2002. 28 There are contradictions in testimonies of prosecution witnesses regarding the point of time when PW-6 Shri Mukesh joined the proceedings. He is a very material witness of the prosecution because as per case of prosecution, it was he who had handed over the currency notes to the accused. As per case of prosecution, he was with the complainant in CBI Office when the pre-trap proceedings were conducted and Handing Over memo prepared. Infact, he is one of the signatories to the Handing Over Memo. When the aforesaid is seen in light of what has been stated by the CC No. 22/2009 Page44 of 49 complainant (PW-4) in Court, a new story appears on record. As per PW-4, Shri Mukesh had been picked up on way from CBI Office to the Airport. Shri Mukesh examined as PW -6 however claimed having gone to CBI Office alongwith his employer i.e. PW-4.
29 Not only this, there are contradictions in testimonies of prosecution witnesses as regards the spot where payment was made to the accused. While PW-1, 6 & 9 claimed that payment was made on way to the Car in the parking lot, as per PW-8, the payment had been made after reaching the Car in the Parking Lot. It would not be out of place to mention herein that Site Plan prepared during investigation and proved in Court as Ex.PW-1/C does not depict the spot where bribe amount was allegedly handed over to the accused.
30 Interestingly, although the accused Ishwar Singh has not disputed his identity in this case and has also not disputed the factum of receipt of currency notes from PW Mukesh or its recovery from his possession, PW-1 during course of his testimony claimed that accused present in Court was not the person apprehended at the spot. Not only this, PW-6 specifically claimed that Ishwar Singh was not present in Court. Although the complainant PW-4 in his complaint Ex.PW-4/A had claimed having met the accused Ishwar Singh at the Airport on 21.12.2001 and also on 27.12.2001, while deposing in Court, he specifically claimed that he had neither CC No. 22/2009 Page45 of 49 seen nor did he know Ishwar Singh prior to his arrest. 31 In utter disregard to claim of the prosecution regarding the accused having demanded and accepted the money on his own behalf, the complainant PW-4 claimed that money was to be given to accused Ishwar Singh for further handing over the same to ACP Shri A.K. Sharma. Infact, the story that transpires from testimonies of prosecution witnesses in Court makes out a story of the accused having accepted the money on behalf of ACP Shri A.K. Sharma and not in his personal capacity and that too as repayment of loan amount by the complainant to Shri A.K. Sharma and not as a bribe amount. This fact which appears on record during testimonies of prosecution witnesses probablises the defence raised by the accused in this case and as deposed too by him in his statement U/s. 313 Cr.P.C. 32 A close look at facts and circumstances of this case reveals the slip shod manner in which matter has been investigated by CBI. Testimony of PW-12 the then Inspector Pawan is a perfect example of the same. During course his cross-examination by ld. PP, witness specifically claimed that he had received order qua his repatriation to his Parent Cadre in U.P. and that S.I. Manoj had only enquired from his about his availability in Delhi at a particular date claiming that his statement was to be recorded on that day. Witness had specifically claimed that infact S.I. Manoj had never recorded his statement by examining him in person. In CC No. 22/2009 Page46 of 49 case it is so in respect of a Inspector of CBI, one can very well imagine as to what would be the case with other independent public witnesses. Two of the Officers of CBI i.e. PW-9 Inspector Vivek Dhir and PW-12 Inspector Pawan Kumar have mentioned different wording in respect of words written on the label of the bottle containing pocket wash. While it was claimed by PW-9 that the words used were 'RPPW'. As per PW-12, the words used were 'Right Pant Pocket Wash'. This Court is left guessing as to what were the exact words used and if the bottle sent to CFSL for examination was infact the bottle which was sealed and preserved at the spot.
33 What has appeared on record is that the allegations made in the FIR have not been substantiated by evidence led in court. The FIR in this case had been allegedly registered on basis of complaint made by Kishore Kumar. However, the said Kishore Kumar when examined as PW-4 has disowned facts mentioned in the FIR. It was observed in Madhusudan Singh Vs. State (AIR 1995 SC 1437) that FIR by itself is not a substantive piece of evidence and where allegations made in the FIR were not substantiated at the trial by any oral evidence, allegations cannot be said to have been proved at trial.
34 Not only the complainant, even other independent witnesses cited and examined by prosecution have failed to support its case as had been alleged against CC No. 22/2009 Page47 of 49 the accused. Infact, testimonies of the independent witnesses run contrary to allegations made by the prosecution and totally nullify findings of the investigating agency as had been placed before this court. Rather, the independent witnesses probablise the defence sought to be raised by the the accused. Infact, evidence on record runs in line with probable defence of the accused rather than echoing allegations of the prosecution or findings of the investigating agency. 35 As has been observed in Subhash Chand Vs. CBI [2005 (117) DLT Page 187], degree of proof cannot be stated in mathematical units but the guiding principle that the evidence must point only towards the guilt and should exclude innocence, must never be lost sight off. 36 Recently in Prabhash Sharma & Another Vs. State [2012 VI AD (Delhi) Page 57] it was observed that it is settled law that if there is some material on record which is consistent with the innocence of the accused which may be reasonably true, even though it is not positively proved to be true, the accused would be entitled to acquittal. Reliance was placed therein upon Shivaji Sahabrao Bobade Vs. State [(1973) 2 SCC 793] wherein Hon'ble Supreme Court of India had stated that if two views are possible on the evidence adduced in the case, one pointing to guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted.
37 In the present case, the accused has very
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much probablised his defence and the same infact is echoed by the prosecution witnesses. Keeping in veiw facts and circumstances enumerated herein above, this court is of considered opinion that dark clouds of doubt hover over genuineness of allegations of the prosecution and benefit thereof has necessarily to be given to the accused. 38 Accordingly, while giving benefit of doubt to the accused, he is hereby ordered to be acquitted in this case.
Announced in the open court (M.R. SETHI)
on 25.04.2013 SPECIAL JUDGE-IV, CBI (PC ACT)
TIS HAZARI COURTS, DELHI
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