Nirbhay Kumar, The Then Dy. Sp Cbi vs Avm (Retd) Jaswant Singh Kumar & Anr. on 29 September, 2014

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Delhi District Court

Nirbhay Kumar, The Then Dy. Sp Cbi vs Avm (Retd) Jaswant Singh Kumar & Anr. on 29 September, 2014

                Nirbhay Kumar, the then Dy. SP CBI  vs AVM (Retd) Jaswant Singh Kumar & Anr.

                 IN THE COURT OF SH. GURVINDER PAL SINGH, 
                           SPECIAL JUDGE (PC ACT) (CBI)6, 
                        PATIALA HOUSE COURT, NEW DELHI


CC  No. 11/12 (Old CC No. 70/11)
In Re  : RC No. DAI/2001/A0052/CBI/ACB/ND
U/s 120B IPC/ Section 3, 5 and 9 of Official Secrets Act 1923
read with Section 12 of PC Act 1988 
Unique ID No.: 02403R0080842003


                Nirbhay Kumar,           
                the then Deputy Superintendent of Police 
                Central Bureau of Investigation 
                (Delhi Special Police Establishment)
                ACB New Delhi                                               ...Complainant
                                    vs 
               1.  AVM (Retd)Jaswant Singh Kumar (A1)
                 S/o Sh Prem Singh Kumar
                   R/o  189, Sainik Farms, Carriappa Marg, 
                   Khirkee Village Extension, New Delhi

               2. Sgt. Kailash Chand Saini (A2)
                  S/o Sh. Bhondumal Saini
                  R/o Kakrola Mode, Jail Road,
                  Gali No. 20, RK Block, New Delhi                          ...Accused

                   Date of filing of Complaint case          :        19/11/2003
                   Case received by transfer on              :        03/07/2012
                   Arguments concluded on                    :        05/09/2014
                   Date of Judgment                          :        29/09/2014



 CC No. 11/12                 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi                   1/85 
                 Nirbhay Kumar, the then Dy. SP CBI  vs AVM (Retd) Jaswant Singh Kumar & Anr.

Appearances
For prosecution               :    Sh P.K Dogra, Ld. Senior Public Prosecutor for CBI.
For accused                   :    Sh S.A Hashmi, Sh I.A Alvi and Sh Rudra Singh 
                                   Kahlon, Ld. Counsel for A1.

                                   Sh R.S Soni, Ld. Counsel for A2.


                                            JUDGMENT

Adumbrated in brief, facts of complaint case are as follows:

Squadron Leader D.K Sharma (here in after referred as PW1) was approached by accused Sergent K.C Saini (herein after referred as A2) in January 2001 on behalf of accused A.V.M J.S Kumar (retired) (herein after referred as A1) and requested him to pass on highly sensitive information relating to Air Force for which he would be duly rewarded. PW1 immediately informed his Senior Air Force (Intelligence) officers and it was decided to encourage PW1 to know more about the activities and network of A2 and to act as decoy on behalf of IAF and as such, PW1 continued negotiations with A2. A2 introduced PW1 to A1, who was stated to be controlling all the operations. This operation continued for about six months during which A1 had sought many secret and highly sensitive documents of the armed forces from PW1 like perspective plans of Defence Forces.

Perspective plan is a master document of any force which depicts the future operational plans, force level and structure, force deployment plan, India's threat perception and weapon induction plan etc., and this document alone is enough for the enemy to jeopardize the national CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 2/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

security. In one of the meetings with PW1, A1 had confided that he was already in possession of Air Force perspective plan and he (A1) asked PW1 to procure Army and Navy perspective plans. A1 had also asked for some other classified informations like purchase of SU30 aircraft, information regarding SRE Radars etc. A2 had once given a written slip to PW1 wherein information regarding RWR (Radar Warning Receiver) and MAWS (Missile Approach Warning System) was asked for. In one of the meetings, A1 offered Rs 50,000/ as goodwill amount to PW1 if he agreed to work for him but he declined the same. PW1 gave one bottle of scotch and old Monk rum to A2 who later on passed the scotch bottle over to PW1 telling that Kumar Saab had given that bottle. The bottle was handed over by PW1 to his superior officer Group Captain T.K Verma (here in after referred as PW2) on 31/05/2001.

2. In June 2001 A1 had asked for Technocommercial Evolution Report relating to VIP Executive Jets which were to be procured by IAF in near future and PW1 tactfully handled the situation and told that record was voluminous and it was difficult for him to bring it out of Air Force Headquarters. On this A1 told him that if it was difficult then he should bring comparative chart of techno commercial evaluation which is concise and contains the salient features of offers visavis qualitative requirement with regard to VIP Executive Jets. In this meeting A1 offered Rs 50,000/ in advance for procurement of the CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 3/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

aforesaid sensitive information relating to VIP Executive Jets and this amount was also handed over by PW1 to PW2 on 14/06/2001.

3. On 26/07/2001 PW1 received a telephonic call from A2 who told him that he had fixed a meeting with A1 at his residence in evening and PW1 should arrange to hand over the comparative chart of VIP Executive Jets to A1 in that meeting and that he should meet him in the evening. PW1 immediately informed his superior officers and it was decided to lodge the case with the CBI and the instant case was registered.

4. After registration of the case, it was decided to lay a trap on 26/07/2001 itself. The complainant Wing Commander M.N Saxena (herein after referred as PW4) produced a photocopy of classified document and the same was treated with phenolphthalein powder and was entrusted to PW1 for handing over to A1. Two independent witnesses were also joined. In the evening A2 met PW1 and took him to the house of A1 where the aforesaid classified document was handed over to A1 and was duly accepted by him. The CBI apprehended the accused persons and recovered the said document from A1 in the presence of A2 who had taken PW1 to the house of A1. Both arraigned accused as well other persons arrested were produced before my Ld. Predecessor on 28/07/2001 and on an application of CBI were remanded CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 4/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

to Police Custody till 03/08/2001. On application of CBI both arraigned accused persons were further remanded on 03/08/2001 to police custody till 07/08/2001. Since 07/08/2001 both arraigned accused were remanded to Judicial Custody vide several orders of my Ld. Predecessor passed time to time. Since requisite criminal complaint/charge sheet was not filed within statutory period of 90 days, in terms of proviso of sub section (2) of Section 167 of The Code of Criminal Procedure, both arraigned accused persons were enlarged on bail vide order dated 27/10/2001.

5. The criminal complaint was filed 19/11/2003. That day cognizance was taken by my predecessor for offences punishable under Section 120B IPC read with Section 12 of Prevention of Corruption Act and Sections 3/5/9 of The Official Secrets Act 1923 and substantive offences under Section 12 of Prevention of Corruption Act and Sections 3/5/9 of The Official Secrets Act 1923. Both arraigned accused were summoned. Copies were supplied to the accused persons and requirements of Section 207 of Cr. PC were complied with.

CHARGE 6 Charge for offences under Section (1) 120B of Indian Penal Code r/w Section 3, 5 and 9 of The Official Secrets Act, 1923 r/w Section 12 of Prevention of Corruption Act 1988; (2) Section 3, 5 and 9 of The Official Secrets Act, 1923 r/w Section 12 of Prevention of CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 5/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

Corruption Act 1988 r/w Section 120B of Indian Penal Code was framed on 25/04/2009 in terms of Order dated 25/04/2009 by my Ld. Predecessor against A1 and A2 to which they pleaded not guilty and claimed trial.

PROSECUTION EVIDENCE

7. To connect arraigned accused with the offences charged, prosecution has examined in all 16 witnesses namely Wing Commander D.K Sharma (PW1); Sh Tarun Kumar Verma (PW2); Sh Ravi Karan (PW3); Group Captain Mahesh Narain Saxena (PW4); Sh Sunil Kumar Singh (PW5); Sh Om Prakash (PW6); Inspector Alok Kumar (PW7); Sh Bharat Singh (PW8); Sh B.R Dhiman (PW9); Inspector C.K Sharma (PW10); Sh Murari Lal Meena (PW11); Deputy SP P. Balachandran (PW12); Sh Sunil Kumar (PW13); SP Nirbhay Kumar (PW14); Dr. Rajender Singh (PW15) and Sh K.S Chhabra (PW16).

STATEMENT OF ACCUSED

8. Thereafter A1 and A2 were examined under Section 313 Cr. P.C. All incriminating material in evidence was put to the A1 and A2. A1 and A2 pleaded innocence and false implication.

9. In his statement under Section 313 Cr.P.C, A1 submitted as follows. PW1, an exlogistics branch junior was roped in by department CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 6/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

of Intelligence and he was promised Financially lucrative tenure in Africa (Given assignment in 2004-2005 after charge sheet in Jan 2004), Prolonged stay in Delhi for over five years since his wife was working in Delhi and promotion to the rank of Wing Commander (Promoted in 2004-2005). PW1 got the present case registered against him (A1) and other persons to push forward career of PW1. In that process PW1 violated basic parameters of a Disciplined Air Force officer. In violation of Govt Approved Regulations of Air Force para 957 and 959, PW1 wrote direct letter to Vice Chief of Air Staff at Air Headquarters stating that A1 had been convicted and PW1 should be recognized for his role. In response to this letter then Vice Chief of Air Staff sent official communication to Air Officer Commanding in Chief Headquarters Maintenance Command to caution PW1 not to give misleading statements in this case and should not infringe channels of communication. However, as events unfolded primarily and due to PW1 own conduct he was superseded thrice and finally had to opt out and to take premature retirement. A1 neither asked for any classified document/information nor took any classified document/information from PW1. No official classified document of Air Force had been recovered from possession of A1. Ex PW1/B (D6) was forged and fabricated document and the same was not an authentic official document of Air Force. On 2627 July 2001, inspite of very extensive search in house, Saket of A1 and shop of wife of A1 in Defence Colony Flyover Complex, not a single official document classified or otherwise was CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 7/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

recovered. At midnight on the same day wife of A1 and daughter were taken to Defence Colony Flyover Shopping Complex. Squadron Leader Pankaj Jain was most active member of search party both at residence of A1 and office in Saket.

10. A1 also stated that neither PW1 nor A2 came to his residence before 26/07/2001. On 26 July 2001 PW1 came to his residence on pretext of paying respect to him (A1) and seeking guidance from his exlogistics branch Air Vice Marshal. Sqdn Leader of Logistics branch had absolutely no access to so called Air Force acquisition plan. The complaint Ex PW1/DA1 was bereft of any allegations of any meetings of PW1 either with A2 in the months from January 2001 to June 2001 or with A1 at any moment of time till lodging of such complaint on 26/07/2001 or A1 having asked for any secret/confidential information from PW1 or having offered any sum/article/scotch as bribe for disclosing any such information. In house search of A1, nothing incriminating was recovered. PW1 after formal hand shake, left place of A1 after brief discussion on 26/07/2001. Since the trap failed, A1 was falsely implicated in this case by creating and manipulating false evidence against him to justify illegal search/raid and label a fake anonymous photocopy as original classified document of Air Headquarter. It is admitted by PW1 and PW4 that document Ex. PW1/B (D6) is a doctored/altered and fabricated document. This document does not have any parameters of an authentic official Air Force document. A2 CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 8/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

never entered into house of A1. Recovery Memo Ex PW1/C (D4) was not prepared at residence of A1 and same was prepared in CBI office on 27th July, 2001. Washes were not taken at residence of A1 and same were manipulated against A1. The cassette was taken by PW1 to his own office and office of Sqdn. Leader Pankaj Jain. It gives enough opportunity to tamper with the cassettes and write their own version of transcript. Therefore, the cassette had been tampered with. On the night of 30/7/2001 the investigation team warned A1 of dire consequences if he refused to give voice sample. A1 was not even allowed to consult his advocate. No court order was shown to A1. Hence A1 wrote UD (under duress). The major acquisition process were announced well in advance to generate global competition. Transparency is basic Principle of a Government Acquisition which very much includes Defence Procurement. As per official Directives of Defence Ministers between 2001-2008, the Defence Minister's Directive dated 22nd August 2006 was "Enhance Transparency by placing generic requirements (Acquisitions) of services on Ministry of Defence Website. Increased Transparency in conduct of Field Trials." Defence Minister's Directive dated 29th July 2008 was that "the acquisition of Defence Equipment's is complex and Intricate process which needs to meet twin objects of modernization conforming to highest standards of transparency, probity and public accountability. Broad details of Trials Methodology to form part of request for proposal..., directions to Vendors during Trials-Result of Evaluation to be Communicated." Directive of Defence Minister CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 9/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

(information in Rajyasabha dated 13th March 2002-Effective from 02 November 2001 is "Based on the review and in order to bring greater transparency to whole procurement process...., presence of authorized representatives would improve delivery of services. The authorized representative would facilitate the availability of literature, trial evaluation follow up contractual details".

11. A1 stated that he never paid any money to PW1. No such incident as alleged by PW1 of date 13/06/2001 took place. PW1 did not mention about the said fact in his first complaint made to PW4 on 26/07/2001 which is reproduced from point B to C in his complaint Ex. PW1/DA1. It is well known fact that all Defence Headquarters Intelligent Departments have sufficient funds at their disposal with no formal audit and same might have been used to create false evidence in this case. Air Headquarter or AVM Malik, has no authority to nominate any serving officer to act as a decoy to entrap retired Air Force officer who are no more under Air Force Act. It is the duty of the Police to investigate such cases. Letter Ex. PW2/D (D29) dated 4/9/2001 was not prepared in the presence of PW2 and he just signed the draft when it came in his office. The investigating agency failed to even the access the file though the contract was approved in August 2003. IO PW14 neither examined nor recorded the statement of Air Commodore H. Masand then Director ASR i.e. Evaluation & Custodian of File Air HQ/S96055/6/3/ASR. A false claim was raised in this letter as basic idea was to hype the security to CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 10/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

buy an under developed Brazil aircraft with very friendly specifications like cabin dimensions, cruising speed, range with 1416 passengers. Air Headquarters have no such authority under Air Force Act 1950 or Government approved regulations for Air Force to nominate decoys for hunting retired officers and no such record had been placed before Court. PW1 and PW2 had not seen Air Commodore H. Masand then Director ASR while altering any such document. Nothing had been mentioned about such alteration in Ex. PW1/DA1, a complaint lodged by PW4 which resulted in registration of FIR. The statement of PW1 and PW4 were concocted and were afterthought.

12. A1 submitted that he came to know that there was a high powered five members Court of Inquiry formed to examine linked issue status of alleged recovered documents and role of any serving officers in this context, AVM Ramanujam was the President of Court of Inquiry. It examined number of documents and summoned few persons for evidence. A1 was never called for any evidence since not a single official document had been recovered from residence of A1. It never recommended any action under Official Secrets Act 1923 or The Prevention of Corruption Act. IO did not obtain even final recommendation duly approved by competent authority. Air Headquarters had denied existence of D6 as an official document of Air Force Headquarters in their response to RTI application, vide reply dated 13/07/2011, reference no. Air HQ/23401/204/4/2283/E/PS, issued by T. CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 11/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

Sajan, Group Captain CPIO, Air HQ, Vayu Bhawan, New Delhi. D6 was projected as an Official Secret document of Air Headquarters. Independent witnesses who were government officials like Dy. SP and Assistant Chemical Examiner were at least expected to examine the basic identification features of such a document. D6 is an anonymous photocopy without any signatures or originator's department stamp. Even PW14 IO did not carry out preliminary inquiry and investigation regarding the same. Moreover PW14 was not informed prior to the raid that D6 was a forged document by the Air Force officials PW1 and PW4. There was also no covering letter from Air Headquarters authenticating D6. When such a document is transferred from Air Headquarters to CBI Headquarters, it should be in two envelopes with classification stamp on inner envelope. No member of search team offered for search to A1 or to any member of his (A1) family. Ex PW1/B (D6) was not recovered from possession of A1. A2 was never in house of A1. Pant wash was manipulated by the CBI and the Pant was not sealed at the spot. Ex PW1/C (D4) was shown to A1 at 6:30 am on 27/7/2001 and A1 was forced to sign the said document. The last four lines on page 4 claiming recovery of classified document were not there when A1 signed Ex PW1/C (D4). D6 is a self created fake paper, prepared in CBI office as per evidence of PW4 in Air Force Court of Inquiry and PW6 in his evidence. PW6 had also stated in his statement that he never gave any statement in June 2002 under Section 161 Cr.P.C. Ministry of Home Affairs was misled about the status of a fake CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 12/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

anonymous document D6. File was taken personally to MHA by IO and facts about D6 were concealed. There was no such certification from any source that D6 was indeed an official secret document or code of Air Headquarters affecting sovereignty and integrity of India. There is no mention of D6 either in FIR or Sanction letter. The facts stated in the sanction letter/authorization letter that 14 seater passenger aircraft was meant for highest dignitaries of state (President/Prime Minister), is factually incorrect. It merely shows that MHA issues sanction letter without indepth scrutiny in a mechanical manner. As per the FIR, the CBI was informed for the first time at 4 pm on 26th July 2001 by the Air Force. The Official Secrets Act 1923 and The Prevention of Corruption Act were invoked as predetermined act. At 5.30 pm on 26 th July 2001 CBI team proceeded to residence of A1 without any preinvestigation. So the investigation is bias and tainted. There was no classified document pertaining to any secret code or secret text. PW14 who was trap officer also continued to be the IO and the complainant which is a clear case of prejudiced investigation. No rough site plan was prepared at the spot. Neither it is mentioned in recovery memo Ex. PW1/C (D4) nor in complaint filed by the IO PW14 about the preparation of a duplicate cassette of recording. Moreover no such duplicate cassette was prepared at the spot. The member of raiding team did not have any equipment to prepare the duplicate cassette of the alleged recording. The statements of witnesses were concocted to invoke The Official Secrets Act 1923 and The Prevention of Corruption Act. PW1 claimed his CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 13/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

statement was recorded on 30th July 2001 (Monday) and another statement recorded after four days. There is no such statement on record. PW6 had denied giving any statement to the IO. Statement of PW2 is based on hearsay evidence. PW15 had given a false report in connivance with the IO PW14. Moreover PW15 was not a qualified expert to certify the voice identification. Voice recording samples were tampered in connivance with the IO PW14. A1 also stated that the IAF and CBI officials were interested witnesses. PW1 was encouraged by senior level import lobby of IAF in order to prevent any counter views on the under developed 14 seater passenger aircraft procured from Brazil and got the false case registered against A1 and others. Rs.126.90 crores was spent for purchase of 5 aircrafts over and above list prices. Specifically for super luxury furnishings like seats, carpets, sofas, tables, curtain, coloured TV and music and entertainment systems. This expenditure was incurred all in name of VIPs. It was predetermined exercise to go ahead with this procurement of Brazil under development aircraft without global tenders. PW1 was rewarded with a financially attractive assignment in Africa. PW14 IO did not carry out any preliminary enquiry and investigation prior to raid. The independent witnesses deposed falsely under the pressure of CBI.

13. A1 stated that he retired from the Indian Air Force after 34 years of very dedicated service with utmost devotion to duty. A1 was a veteran of three wars 1962, 1965 and 1971. A1 was decorated twice by CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 14/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

President of India with Ati Vishitha Sewa Medal (AVSM) and Vishitha Sewa Medal (VSM) for exceptional service to duty. Several Chiefs and Air Marshals had commended about professional excellence of A1. A 1 had various prestigious appointments like four years tenure with High Commission of India, London U.K. Senior Logistics Officers of two major Flying Stations, Commanding Officer of a Logistics Depot which was the best unit under his command, Directorate of Mechanical Transport for the entire Air Force, Officiating Assistant Chief of Air Staff (Logistics) responsible for entire aircraft spares management and inventory control. A1 achieved the rank of Air Vice Marshal inspite of the fact that there were only two such posts in a Cadre of 600-650 Logistics officers. A1 stood first in all the department deep selection promotion boards and retired with unblemished record in September 1994. A1 was also associated with task of cabin refurbishing of Avro 748 at Kanpur, TU 124 then VVIP Aircraft for President/PM at Air Force Station Palam (base of VVIP/Executive Transport Aircraft). A1 was senior Logistics officer at Palam and a special technical and logistics team was constituted to refurbish Russian transport aircraft since Russians were asking very exorbitant prices. After extensive market search they identified all cabin furnishing materials (Fire Resistant). The then Prime Minister complimented Air Force with remarks "Interiors are esthetically very pleasing and bright". There was no transfer of work to India even for cabin furnishing and working and retired defense officers, including A1 and industry people were suggesting/demanding portion of CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 15/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

work task to be carried out in India, which will not only enhance technical skill but also generate employment in the country at an economical rate or they suggest that that bare air craft to be purchased from foreign vendors and cabin furnishing work to be done in India. A1 had been targeted by then senior level import lobby in Air Headquarters who were against the above mentioned demand of work task for their ulterior motives. PW1 was working for the said senior level import lobby and got the false FIR registered against A1 and others to stifle and counter any views against the acquisition of an under development Brazil Embraer Legacy 135 BJ passenger transport aircraft (Nonmilitary). Friendly specifications like cabin dimensions, range, cruising speed, landing runway etc were incorporated. This 14 to 16 seater passenger aircraft (nonmilitary) was to replace Indian manufactured 25 seater Avro HS 748 transport aircraft. M/s Hindustan Aeronautical Ltd. has manufactured more than 70 Avro HS 748 Aircraft, 25 Dornier Aircraft and modified/VIP furnished 8 AN32 transport aircraft and yet were not considered for any role on such procurement. Rs.126.90 crores was spent for purchase of 5 aircraft over and above list prices. Specifically for super luxury furnishings like seats, carpets, sofas, tables, curtain, coloured TV and music and entertainment systems. This expenditure was incurred all in name of VIPs. It was predetermined exercise to go ahead with this procurement of Brazil underdevelopment aircraft without global tenders. M/s HAL was not consulted. Necessity angle was questionable and Rs. 126.90 Crores expenditure incurred over and above CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 16/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

list prices.

14. In his statement under Section 313 Cr.P.C, A2 submitted as follows. A2 was directed by PW1 to meet him at AIIMS bus stop via telephone call made by PW1 on office landline of A2 at Air Headquarters, R.K. Puram, JDM (procurement). When A2 reached there at about 06.45 pm, PW1 was already waiting in his car and A2 accompanied PW1 under his orders and they both were in IAF uniform. Earlier A2 was taken to JDP Airman for extension of posting/screening by PW1 as allurement for acting as decoy for PW1. Nothing was recovered in presence A2 as he was in the custody of CBI outside the residence of A1. A2 had accompanied PW1 in his waiting car outside AIIMS on 26/07/2001 as per his directions as A2 was acting as his decoy under the instructions of senior IAF Officers. The car of PW1 remained parked outside the residence of A1 and A2 was sitting in the said car only to be taken into custody by the CBI from the said car. Sample voice of A2 was never taken by the IO and that is why Ex. PW 11/A did not bear signatures of A2 in any manner whatsoever. A2 denied to be witness of proceedings of D4 and stated that PW4 in his testimony in the Court of Inquiry conducted by Air Force had stated that D6 was prepared in the office of CBI. No document in the shape of D 35 was placed before PW9 at the time of grant of authorization u/s 13(3) of the OS Act and because of this reason D35 was not placed on record of the judicial file earlier. A2 submitted that the IAF and CBI officials CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 17/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

were the interested witnesses who fabricated false documents and engineered this false case in order to gain personal benefits/mileage and further to seek promotion in their respective fields. PW1 even wrote a bogus DO to the then Vice Chief of the Air Staff of the IAF that the present accused had already been convicted by the Court in the present case. The testimony of PW4 is further falsified in view of his deposition in the Court of Inquiry, where he had specifically admitted that the document D6 was prepared in CBI office. The other witnesses including PW14 IO of the case had fabricated document D25 dated 11/10/2001 after having received the copy of the complaint dated 12/10/2001 from the Ld. Special Judge CBI, preferred by A2. Even the said document D 25 was tampered with by the IO PW14 and the evidence before this Court was a pointer regarding his illegal acts. PW4 was having a grudge since the time when he was adjutant at Air Force Station Bidar when A2 did not oblige him by supplying the opium for his personal consumption as sought by him. After complaint of A2 dated 12/10/2001 before the Special Judge CBI, he (A2) was implicated in a false case of Official Secrets Act by the officials of PS Special Cell of Delhi Police in which case A2 was discharged by the Hon'ble High Court. After the arrest in this case, A2 was dismissed from IAF and later on the IAF Authorities / Chief of the Air Staff after considering representation of A2, granted 70 per cent pension to him (A2) as per Orders in year 2007.

CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 18/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

DEFENCE EVIDENCE

15. A1 entered into defence and examined Wing Commander D. Anil Kumar (DW1) and Sh Raminder Singh Bhatia (DW2) in his defence. A2 tendered certified copy of judgment Ex AX/A2 of Hon'ble Mr. Justice H.R Malhotra dated 12/10/2007 in Crl R P No. 936/2003 in defence evidence.

ARGUMENTS

16. I have heard the arguments of Sh P.K Dogra, Ld. Senior Public Prosecutor for CBI; Sh S.A Hashmi and Sh Rudra Singh Kahlon, Ld. Counsels for A1; Sh R.S Soni, Ld. Counsel for A2; accused persons and have perused the record including the evidence led and given my thoughts to the rival contentions put forth.

17. Ld. Senior PP for CBI had argued that by the led evidence on record the prosecution has been able to prove that the arraigned accused in conspiracy with each other, attempted to obtain from or make PW1 to give/communicate them wrongfully, by attempting to bribe him, classified document Ex PW1/B (D6) and in furtherance thereof they accordingly so obtained from or made PW1 wrongfully to give/communicate to them the classified document Ex PW1/B (D6) by CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 19/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

attempting to bribe PW1. Ld. Senior PP for CBI has prayed for conviction of the accused persons for charged offences accordingly since the recorded conversations in cassette also corroborated the oral deposition of examined prosecution witnesses and some minor variations/contradictions are bound to occur due to long gap of time period between occurrence of offence and deposition of witnesses due to which witnesses having forgotten some details though having testified truthfully.

18. Ld. Counsel for A1 argued that complaint is bereft of any direct, clear and specific allegation against A1 for having asked for classified/sensitive information from PW1. Even there is no mention in complaint of A1 having met PW1 and raised demand of Ex PW1/B (D

6) i.e., Technical Evaluation Report of Executive VIP Jets, as claimed by prosecution. It is own admitted case of prosecution that for the first time PW1 reported this matter in writing to PW4 on 26/07/2001. Yet, in complaint Ex PW1/DA1 (D1) there is no mention of any meetings of PW1 either with A1 or with A2 prior to 26/07/2001. Even original complaint of PW1 has not seen the light of the day. The complaint Ex PW1/DA1 (D1) finds no mention regarding any meeting between PW1 and A1 prior to 26/07/2001 and any payment of sum of Rs 50,000/ by A1 to PW1 before 26/07/2001.

19. It has been argued that the testimony of PW1 is full of CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 20/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

improvements, exaggerations, material contradictions going to the root of the matter to check and shake the basic version and core of the prosecution case. PW1 has been contradicted on several counts with the complaint as well as with his previous statement. Per contra to case of prosecution, PW2 did not whisper of PW1 having either given him Rs 50,000/ received from A1 or the scotch bottle received by PW1 from A2 on behalf of A1. Irrespective of the fact that complaint Ex PW1/DA1 (D1) finds mention of details of alleged meeting of PW1 with Wing Commander Tomar on 30/05/2001 and 13/06/2001 but it finds no mention of any meetings of PW1 either with A1 or with A2 prior to lodging of complaint. It was also argued that Ex PW1/B (D6) was projected as an official secret document of Air Headquarters but it was doctored/altered and fabricated document, not having any parameters of an authentic official Air Force document and was simply an anonymous fake photocopy as original classified document of Air Headquarter. The basic requirement of an official document is that the document should contain the signature of signing official with seal of Air Force Department, file/reference number and bold rubber stamp of classification, as per Air Force Rules. Even PW1 and PW4 in the course of their examination admitted of Ex PW1/B (D6) to have been doctored and altered and thus it is a fabricated document. Original of Ex PW1/B (D6) was not produced in the course of trial nor its originator was brought into witness box to testify about its authenticity since none of the examined witnesses were either originator or custodian of said document.

CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 21/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

Alleged custodian of the document which was source of Ex PW1/B (D

6) was Air Commodore H. Masand who was the Incharge of the file and competent person who could tell about the gradation of the said file. Said Commodore H Masand was neither examined nor cited as prosecution witness. For non examination of the originator of Ex PW1/B (D6), the source file Ex PW1/B (D6), the custodian of the source file of Ex PW1/B (D6), it has been prayed that adverse inference in terms of Illustration (g) of Section 114 of Indian Evidence Act be drawn against the prosecution. It has also been argued that even PW4 has deposed that gradation of document as secret or confidential was done in terms of IAP 3902 and only the originator of said document can grade the said document and none else can change the grade thereafter. Due to non examination of Air Commodore H. Masand, the prosecution has not been able to prove about the grade of Ex PW1/B (D6) or whether it was confidential or not and it cannot be called as classified document.

20. Also was argued that comprehensive operation technical information of all types of aircraft is available on websites, manufacturer literature and international publications, so no provision of Official Secrets Act is applicable.

21. Also was argued that it is own version of PW1 that on 26/07/2001 A1 never demanded any document much less Ex PW1/B (D6) from PW1. So acting contrary to directions, how could PW1 CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 22/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

deliver Ex PW1/B (D6) to A1? Ex PW1/B (D6) after application of phenolpthalein powder was kept in an envelope in CBI office in pretrap proceedings. Whereabouts of the said envelope are not known to anyone nor proved. Allegedly before handing over of Ex PW1/B (D6) PW1 removed it from the envelope and on entering into the premises of A1, PW1 exchanged pleasantries with A1 and had hand shake. Accordingly, there was every possibility of transmission of phenolpthalein powder particles from PW1 to A1 thereby making the evidence of hand washes pale into insignificance. Testimonies of trap witnesses are full of material contradictions going to the root of the matter to check and shake the basic version and core of the prosecution case to doubt their veracity, reliability and trustworthiness.

22. Also has been argued that the tape recorded conversations had been tampered with, which fact is apparent on the face of record on display of the such recorded conversations. When, where and to whom were the transmitter and tape recorder handed over, is not mentioned in Ex PW1/A (D5) nor in said document or other documents initially filed with the complaint there is mention of preparation of duplicate cassette. Ex PW1/A (D5) finds mention of only one audio cassette taken by raiding team at the spot and introduction of version of duplicate cassette is an after thought, to fill up the lacuna and loopholes of the prosecution case. PW1 also asserted that he was given the cassette in the month of October 2001 which he took to his house, even in his office where he CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 23/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

partly prepared transcript Ex PW1/F and which transcript he also partly prepared in CBI office. Accordingly, there was every possibility of tampering of cassette by PW1, who had opened up the sealed cassette without any orders of the Court. It was also argued that the voice sample of A1 was allegedly obtained under duress without Court permission. Even, so called forensic expert namely PW15 admitted in his cross examination that he had not done any diploma or degree course in the science of voice identification, phonetics, linguistic and speech hearing science from any University and so PW15 Dr. Rajender Singh had no basic qualification for sample voice identification, so his report Ex PW15/A (D23) should be excluded from consideration. It was also argued that since no search warrant was obtained under Section 11 of Official Secrets Act 1923 before the raid, the raid, search and seizure were illegal.

23. Also was argued that Ministry of Home Affairs was misled about the status of the fake anonymous document Ex PW1/B (D6). There was no certification from any source that Ex PW1/B (D6) was indeed an official secret document or code of Air Headquarters affecting sovereignty and integrity of India. It is own admission of sanctioning authority PW9 that issue of genuineness of Ex PW1/B (D6) was not raised before the sanctioning authority due to which he had no occasion to doubt its genuineness. IO PW14 concealed from the sanctioning authority that Ex PW1/B (D6) was an altered, doctored and CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 24/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

forged document and not an official authenticated document of Air Force; so issued sanction by Ministry of Home Affairs without any in depth scrutiny was so done in a mechanical manner. Also was argued that during proceedings under Court of Inquiry, PW4 had stated that Ex PW1/B (D6) was prepared in the CBI office. IO PW14 deliberately did not place on record the recommendation of the Court of Inquiry with the complaint. Ld. Counsel for A1 argued that accused has been falsely implicated for the reasons stated by A1 in his statement under Section 313 Cr.P.C, elicited herein above. Also was argued that Trap Laying Officer PW14 continued with the investigation as investigating officer and also became the complainant, which caused serious prejudice to the defence. Also was argued that no preliminary inquiry was conducted before raid, nor it was ascertained that Ex PW1/B (D6) was an altered document; original document which was the source of Ex PW1/B (D6), was not obtained. Also was argued that there is no iota of evidence that A1 had any prior meeting of minds either with A2 or with PW1 prior to 26/07/2001 nor any call detail records with their analysis have been placed on record nor proved making implicit of such meeting of minds. Also has been argued that currency notes produced are no where connected with A1 nor there is any record of deposit of such currency notes by PW1 with PW2 at any point of time nor PW2 deposed of such notes having been so deposited by PW1 with him. Ld. Counsel for A1 has argued that since prosecution has failed to prove its case, so he has prayed for acquittal of A1, relying upon the following precedents:

CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 25/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

1. Narbada Devi Gupta vs Birendra Kumar Jaiswal & Anr., JT 2003 (8)SC 267;

2. State of Maharashtra vs Dr. B.K. Subbarao & Anr., MANU/MH/0206/1991;

3. Rakesh Bisht etc vs C.B.I, 2007 Cri.L.J 1530 (DHC).

24. Ld. Counsel for A2 argued that despite the fact that IO PW PW14 obtained the call detail records of A1 and A2 but they were not placed on record since nothing incriminating was found. None of the examined prosecution witnesses even made a reference to any conversations/meetings between arraigned accused persons nor any material has been placed on record in this regard nor proved by any cogent evidence. Also was argued that PW1 alleged of audio recordings of his meetings with A2 outside the office, which audio recordings were not placed on record nor proved. Allegedly, PW1 paid bills of his meetings with A2 at restaurants from his pocket but did not claim any reimbursement for the same; even PW1 used his own car for conveyance but no conveyance charges were claimed by PW1 from his office. No minutes of meetings between PW1 and A2 were recorded nor proved despite alleged operation being carried out with approval of Directorate of Intelligence of Air Force Authorities. Allegedly, Flight Lt. Pandey was covering PW1 during meetings in the restaurants but said Lt. Pandey was neither cited nor examined as prosecution witness. Allegedly, PW4 was directed by AVM Malik to use PW1 as decoy but said AVM Malik has neither been cited nor examined as prosecution witness. In his testimony PW2 is silent about alleged briefing by PW1 to him (PW2) or PW4. PW14 IO admitted that items detailed in Ex PW2/A (D25) at CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 26/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

serial number 1,2 and 3 were with air force officials before laying of trap and before registration of FIR but these items find no mention in lodged complaint Ex PW1/DA1 (D1). No specimen writings or admitted writings of A2 were secured nor sent for comparison of writings in written slip Ex PW2/C (D28) alleged to be containing writings of A2 passed on by A2 to PW1. Even Scotch bottle D26 was identified by PW1 only by its brand and cover though it was not having any identification mark. Though PW2 was signatory to Ex PW2/A but yet PW2 feigned ignorance with regard to encircled portion "X" thereon. Allegedly, voice sample of A2 was taken on 06/08/2001 vide memo Ex PW11/A but said memo does not bear signature of A2. A2 denied of giving any voice sample as alleged. Also was argued that no permission was taken nor any application was moved for collection of voice sample of A2. Also was argued that PW1 was permitted to take the cassette of tape recorded conversation and PW1 prepared the transcription partly in CBI office, partly in his office and partly at his home. Accordingly, tampering of tape recorded conversation is evident on the face of record. It was also argued that A2 acted as a decoy for PW1, A2 was in uniform at the time of his arrest on 26/07/2001 and thus the defence of A2 was reasonable that he was on duty under the orders of PW1, so A2 claimed protection under Section 197 of Cr.P.C. It has been argued that prosecution has failed to prove its case against A2 beyond reasonable doubt and relying upon the following precedents acquittal of A2 is prayed for:

CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 27/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

1. State of Himachal Pradesh vs M.P Gupta, AIR 2004 SC 730;

2. P.K Pradhan vs State of Sikkim, (2001) 6 SCC 704.

25. In the case of Narbada Devi Gupta (Supra), it was held that mere production and marking of a document as exhibit by the Court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence that is by the 'evidence of those persons who can vouchsafe for the truth of the facts in issue' . The situation is, however, different where the documents are produced, they are admitted by the opposite party, signatures on them are also admitted and they are marked thereafter as exhibits by the Court.

26. In the case of Rakesh Bisht (Supra), on the application of CBI the directions were given by the Special Judge CBI to the petitioners to give their voice samples for the purpose of comparison with tape recorded conversation which had already been recorded by the CBI.

After appreciating the law laid in the case of State of Bombay vs. Kathi Kalu, AIR 1961 SC 1808, Hon'ble High Court of Delhi held that at the stage of investigation accused cannot be compelled to give his voice sample just as he cannot be compelled to undergo a test identification parade and it is for the accused to give or not to give his voice sample in the course of investigation and the Court cannot direct accused during investigation to give his voice sample but during trial the Court can CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 28/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

permit taking of voice samples for the purpose of identification only. Also was held that Section 311A of Code of Criminal Procedure only refers to the handwritings and signatures and bears no reference to voice sample or voice recordings, while said provision was introduced by Legislature which was well aware of the technology of tape recording and taking of voice samples at the time of introduction of said provision in the year 2006.

27. In the case of M.P Gupta (Supra), it was held that before Section 197 of Cr.P.C can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of the official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty, if the CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 29/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

answer to his question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case. The expression 'official duty' has been widened further by extending protection to even those acts or omissions which are done in purported exercise of official duty. That is under the colour of office. Official duty therefore implies that the act or omission must have been done by the public servant in course of his service and such act or omission must have been performed as part of duty which further must have been official in nature.

28. In the case of P.K Pradhan (Supra), it was held by the Supreme Court that to determine whether offence committed "while acting or purporting to act in discharge of his official duty", the test to be applied is that the act complained of (1) must be an offence, and (2) must be done in discharge of duty. There must be a reasonable connection between the act and the official duty. It does not matter that the act exceeds what is strictly necessary for the discharge of the official duty, since that question would arise only later when the trial proceeds. But no sanction is required where there is no such connection and the official status furnishes only the occasion or opportunity for the acts. The claim of the accused that the act alleged was done reasonably and not in CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 30/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

pretended course of his official duty can be examined during the trial by giving an opportunity to the defence to prove it. In such cases, the question of sanction should be left open to be decided in the main judgment after conclusion of trial.

APPRECIATION OF EVIDENCE

29. PW9, the then Under Secretary in Ministry of Home Affairs, Government of India deposed that the case pertaining to prosecution sanction against A1 and A2 was forwarded by the CBI for consideration and issue of prosecution sanction against these accused; after consideration of the documents, the matter was considered in consultation with Ministry of Law and after getting their opinion, prosecution sanction Ex PW9/A dated 22/10/2003 was issued by PW9 under his signatures in the name of President of India, as it was accorded by the competent authority namely the then Home Secretary. It is own admission of sanctioning authority PW9 that issue of genuineness of Ex PW1/B (D6) was not raised before the sanctioning authority due to which he had no occasion to doubt its genuineness. IO PW14 concealed from the sanctioning authority that Ex PW1/B (D6) was an altered, doctored and forged document and not an official authenticated document of Air Force; so issued sanction by Ministry of Home Affairs was without any indepth scrutiny. When the classified document which formed the gravamen of prosecution charges was not seen by the Officer CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 31/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

of Home Department, who authorised the filing of complaint for offences under the Official Secrets Act, then his Lordship is case of Dr. B.K. Subbarao & Anr. (Supra) deprecated such kind of practice, since the matter was in context of a serious prosecution of a citizen of the country and that too a senior retired Naval Officer on charges of such gravity.

30. PW10 Inspector C.K. Sharma deposed that on 26/07/2001 IO PW14 gave him authorization under Section 165 (3) Cr. PC upon which PW10 alongwith other officers of CBI, independent witnesses PW3 and PW13, both of Excise Department went to the residence of A2 at Village Nawada near Uttam Nagar, Delhi where premises of A2 was searched and articles, documents including D12 were seized vide Search cum Seizure Memo Ex. PW3/A (D11). At residence of A2, aforesaid, A2 was brought in police custody by CBI officials at 11.00 pm, where after completing the search, signatures of A2 were obtained on Ex. PW 3/A.

31. In the case of Jarnail Singh Kalra vs CBI, 2011 (1) JCC 263: 2011 Cri.L.J 1416, it was interalia held that under Section 3 of Officials Secret Act mere possession of Secret official code or password, or any sketch, plan, model, article or note or other document or information which is calculated to be or might be or is intended to be, directly or indirectly, useful to an enemy, or which relates to a matter the disclosure of which is likely to affect the sovereignty and integrity of CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 32/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

India or security of State has been made an offence.

32. In the case of Sambhaji Lal Surve vs CBI, 2009 (3) JCC 2026 (Del), placing reliance upon judgment of Govt of NCT of Delhi vs Jaspal Singh (2003) 10 SCC 586, it was held that in order to prove offence under Section 3 (1) (c) of Officials Secret Act it has to be first shown that there was an actual passing of the sensitive or classified information. For the more severe punishment to be attracted, it has to be shown that what was passed on relates to a matter the disclosure of which is likely to affect the sovereignty and integrity of India or security of the State and is committed in relation to a defence establishment. Whether the information is classified or not is a matter of certification by the competent authorities and further subject to such opinion being tested at the trial. Once it is proved that accused was found in conscious position of classified material and no plausible explanation was given for its possession, then the mens rea has to be presumed and statutory presumption under Section 3(2) of Officials Secrets Act that the information that was obtained or collected was for the purpose prejudicial to the safety or interests of the State is attracted.

33. The case of prosecution revolves around the premise that document Ex PW1/B (D6) was a classified document being "CONFIDENTIAL" and to obtain it from PW1, A1 conspired with A2, bribed/attempted to bribe PW1 to pass on said document alleged to be CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 33/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

containing highly sensitive information relating to Air Force in respect of comparative chart of TechnoCommercial Evaluation which is concise and contains salient features of offer visavis qualitative requirement of Jets, which was directly or indirectly useful to the enemy or the disclosure of which was likely to affect the sovereignty and integrity of India.

34. Letter Ex PW2/D (D29) dated 04/09/2001 interalia contained the texts that document allegedly given by PW1 to A1 on 26/07/2001 was prepared from a confidential document relating to the acquisition of VIP Aircraft and said document cannot be declassified as it relates to future procurement of Aircraft for the use of the Indian Air Force. PW2 testified that he had given Ex PW2/D (D29) bearing his signatures but elicited that facts detailed there in Ex PW2/D (D29) did not happen in his presence and content of Ex PW2/D (D29) was prepared by Air Commodore H. Masand. Said Air Commodore H. Masand was neither cited nor examined as prosecution witness.

35. PW2 deposed that Ex PW1/B (D6) was prepared from a confidential document relating to the acquisition of VIP Aircraft. PW2 further stated that the original document of procurement plan and the Transport Aircraft Executive Jets proposals was altered by Air Commodore H. Masand and such altered document was handed over to PW1 by PW4 for further handing over to A2. In his cross examination, CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 34/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

PW2 stated that Air Commodore H. Masand was Incharge about the file containing the original document of procurement plan and the Transport Aircraft Executive Jets proposals. PW2 also elicited that he never saw the file containing the original document of procurement plan and the Transport Aircraft Executive Jets proposals. Also PW2 elicited that the official document would contain date, signatures of the signing official with seal, number of the file and such official documents may be of four categories namely Top Secret, Secret, Confidential and Restricted.

36. In the course of his cross examination, PW4 also elicited that since the original document asked for by A2 from PW1 was a sensitive document, it was decided by his (PW4) superiors to change the key details of the original document and then to send the changed document through PW1 to A1 for laying a trap. Even as per version of PW4, the said sensitive original document, from which Ex PW1/B (D6) was prepared after changing key details, was in the possession of Air Commodore H. Masand, the then DASR, who could definitely say about the grade of such document while others could tell only from their experience or common sense about the grade of such document. PW4 had not seen the file containing the original document of procurement plan and the Transport Aircraft Executive Jets proposals. PW4 further testified that the gradation of the document as secret or confidential was done on the basis of IAP 3902 and only the originator of the document can grade the document and none else can change the grade thereafter.

CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 35/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

37. Relevant rules contained in IAP 3902 prescribe the marking of documents as a precautionary measure against the circulation of documents to unauthorized persons. These rules are:

"Marking of documents 5 ...........................

(b) TOP SECRET, SECRET or CONFIDENTIAL Documents other than Bound Books. TOP SECRET, SECRET or CONFIDENTIAL documents, including books whose papers are not permanently and securely fastended (to the binding), and all forms of signals are to be marked with the security classification on every page. Files, dockets and looseleaf binders are not permanent bindings; and stapling is not a secure binding. Covers containing TOP SECRET documents will be marked with a diagonal RED cross extending from corner to corner on both back and front.

...........................

(d) Method of Marking. In every document, letter or signal that requires marking under subparas (b) and (c) above, the security classification is to be printed or typed centrally at the top and bottom of each page. Additionally, in the case of typed papers bearing the classification CONFIDENTIAL and above, the security classification is also to be stamped on each page just below and just above the typed security classification at the top and bottom centres respectively. In case of TOP SECRET papers/documents the imprint of the rubber stamp should be in red ink. In case certain sections of a classified document are meant for subsequent 'pull out', and are assigned with a lower classification even then all pages must initially bear the classification of the main document as a whole. Sections once extracted are to be considered as separate documents and marked with lower classification as envisaged accordingly.

(e) Letters/documents including appendices and annexure, if any, should have continuous page numbers. The total number of pages of Top Secret/Copy numbered Secret letter/document containing more than one page will be indicated in words below the security classification on the top centre of the front page i.e.: CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 36/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

(Typed Security Classification) SECRET (Stamped Security classification) SECRET (Total number of pages - Twelve Pages/only page) ....................................................................................................."

38. Bare perusal of document Ex PW1/B (D6) reveals that it is a typed document in three pages which are not numbered, in the middle of top and bottom on all three pages "CONFIDENTIAL" is typed. None of these pages is stamped just below and just above the typed security classification at the top and bottom centres respectively. Appendix 'C' is typed on the right corner of the third page of Ex PW1/B (D6). Neither any Appendix 'A' or Appendix 'B' precede Appendix 'C' i.e., aforesaid third page of Ex PW1/B (D6) to have the continuity of the page numbers while the document Ex PW1/B (D6) does not bear any particulars to even infer about its originator, department, addressee, signature/particulars of releasing officer. Ex PW1/B (D6) was accordingly not marked in terms of afore elicited relevant rules of IAP 3902. Own prosecution witnesses namely PW2 and PW4 elicited that Ex PW1/B (D6) had been prepared after change of the key details from its original and thus it was an altered document. In his cross examination PW6 testified that Ex PW1/B (D6) was typed by CBI officials who had been on raid. Originator of Ex PW1/B (D6) or of the original document, which was the source of Ex PW1/B (D6) was not ascertained, nor cited nor examined as a prosecution witness. One who changed key details of original document and prepared Ex PW1/B (D6) was also not cited nor CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 37/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

examined as a prosecution witness. File containing the original document which was the source of Ex PW1/B (D6) was neither ascertained, verified, checked and compared with Ex PW1/B (D6) nor was relied upon nor was produced in the prosecution evidence. Even if such file was containing any privileged communication/secret/ confidential documents, yet said file was not shown to the Court nor any steps were taken by prosecution to summon it to show to the Court in the course of prosecution evidence. It is not proved that document Ex PW1/B (D6) contained any facts which were part and parcel of its source document. Central Public Information Officer (CPIO) DW1 in Indian Air Force proved on record by preponderance of probability the information under RTI Act 2005 sought vide Ex DW1/C (colly) of date 06/05/2011, which was supplied vide letter dated 13/07/2011 Ex DW1/A by Group Captain CPIO to Sh Rudra Kahlon, Advocate, bearing reference number AIRHQ/23401/204/4/2283/E/PS in terms of which it was stated that the copy of Ex PW1/B (D6) was not an official document of Air Headquarters. By all facets of the matter it stands established and proved that Ex PW1/B (D6) was neither a Confidential document of Indian Air Force nor information in its contents was classified/confidential in nature, in terms of documents of Indian Air Force.

39. The premier investigating agency came into motion on lodging of complaint Ex PW 1/DA1 (D1) dated 26/07/2001 on 26/07/2001. The information contained in Ex PW1/DA1 (D1) was CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 38/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

provided by PW4 to CBI on the basis of the information contained at portion B to C in Ex PW1/DA1 (D1) provided by PW1. The original written information provided by PW1, as aforesaid contained in portion B to C in Ex PW1/DA1 (D1) has not seen the light of the day since it was neither seized nor filed by investigating agency nor relied nor proved by the prosecution. Accordingly, complaint Ex PW1/DA1 (D1) is based on the hearsay version of PW4 who is not witness of events as mentioned in portion B to C in Ex PW1/DA1 (D1). The testimony of PW1 embodies the assertions including of his several meetings with A2 since beginning of January 2001 in his (PW1) office, restaurants, etc. In terms thereof the first information report was lodged belatedly after period of more than six months.

40. In the case of Thulia Kali v. State of T.N., A.I.R 1973 SC 501, it was held that "First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay the report not only gets bereft of the advantage of spontaneity danger creeps in of the introduction of coloured version, exaggerated account or CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 39/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained.''

41. Bare perusal of complaint Ex PW1/DA1 (D1) reveals of it finding no mention of any meetings between PW1 and A1, A1 and A2 prior to 26/07/2001 whereas it embodies facts regarding meeting of PW1 with Wing Commander Tomar (retired), on 20/05/2001. Said complaint also does not embody any facts of any alleged demand of any classified/confidential/sensitive information of Air Force by A1 from PW1 or of any payment made by A1 to PW1 either directly or through A2 or giving of any liquor/scotch bottle by A1 to PW1 either directly or through A2 at any moment of time prior to 26/07/2001 i.e., lodging of said complaint. Making substantial improvements and additions PW1 testified that since beginning of January 2001 he had several meetings with A2 before lodging of complaint Ex PW1/DA1 (D1). As per PW1, in the beginning of January 2001 he met A2 in his (PW1) office; on 29/01/2001 in his (PW1) office, A2 had asked PW1 if he can share information regarding procurements being done by him (PW1), then PW1 can be rewarded monetarily. PW1 also deposed that he had 2 meetings in February 2001, 2 meetings in March 2001, 4 meetings in April 2001, 3 meetings in May 2001, 1 meeting in June 2001 and 1 meeting in July 2001 with A2, of which 3 meetings were in Shahanshah Restaurant, next to Talkatora Stadium. Besides that, as per PW1, in the end of May 2001, A2 took PW1 to house of A1 for the first time and CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 40/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

introduced PW1 with A1. Also PW1 deposed that in June 2001, A2 took PW1 to residence of A1. PW1 also deposed that (1) in his 3 rd meeting in April 2001 with A2, A2 disclosed name of A1; (2) in his 4 th meeting in last week of April 2001 with A2 at Shahanshah Restaurant, A2 insisted on availing the perspective plan of Army and Navy asked for by A1 for which A2 also said that PW1 will be paid Rs 50,000/ for the information which had been asked; (3) A2 took PW1 on 30/05/2001 to residence of A1, where A1 offered a bundle of notes of Rs 500/ denomination which PW1 did not take, on way back, A2 gave scotch bottle D26 of Dimple brand to PW1 stating it was given by A1 for PW1 while keeping with himself (A2) one bottle of Old Monk Rum given by A1; (4) in 3rd week of June 2001, A2 took PW1 to residence of A1 for 2nd meeting with A1 where A1 gave Rs 50,000/ Ex PN/1 to 100 as advance to get Technical Evaluation Report of VIP Executive Jet which Air Headquarters was in process of procurement, which cash sum of Rs 50,000/ PW1 gave to PW2 subsequently; (5) slip Ex PW2/C (D28) was given to PW1 by A2 in 3rd week of April 2001 and on the next day thereof PW1 had handed over the said slip to Sq. Leader Pankaj Jain; (6) audio recordings of meetings of PW1 with A2 outside the office were done by PW1; (7) Flight Lt. Pandey of 5 LU was covering PW1 in his meetings with A2 outside the office of PW1; (8) PW1 had talks on his mobile phones with A2 on his mobile phone and even told CBI officers about such talks; (9) his (PW1) statement was recorded on Monday next to 26/07/2001 by CBI officers (no such statement was placed on record CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 41/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

as per version of the Ld. Prosecutor during the course of evidence of PW1); (10) he (PW1) gave his written complaint on 26/07/2001 in CBI office which was addressed to PW4 (no such complaint has been placed on record by investigating agency/prosecution); (11) Ex PW1/B (D6) was a photocopy and not original document, altered/doctored by concerned authorities in Air Headquarters namely Air Commodore H. Masand, Director ASR, as told by PW2 and PW4 to PW1; (12) when PW1 took Ex PW1/B (D6) with him, he was in the knowledge of the fact that it was doctored and altered; (13) no document was prepared either by PW1 or by PW2 in respect of handing of Rs 50,000/ cash by PW1 to PW2, which sum was alleged to have been received from A1 by PW1, whereas neither numbers of the GC notes so handed over were noted down nor any identification mark was put on them. For considerable improvements, additions in deposition, including afore elicited facts, PW1 was confronted with Ex PW1/DA1 (D1) purported to contain the version of PW1 from portion B to C. For deposing in contradiction with previous statement under Section 161 Cr.P.C dated 15/10/2001, Ex PW1/DA and Ex PW1/DB given by PW1 in Court of Inquiry, PW1 was confronted with said statements on various counts. PW1 deposed that he acted as decoy of the Directorate of Intelligence of Air Headquarters, as per instructions and used to report to PW4 and PW2 about the sequence of events with respect to his meetings with A2 and A1. PW2 did not whisper in his entire examination in chief in respect of any fact told by PW1 about the sequence of events with respect to CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 42/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

meetings of PW1 with A2 and A1. In the cross examination of Ld. Counsel for A1, PW2 elicited that in January 2001 PW4 informed him (PW2) that A2 had approached PW1 seeking some information from Air Headquarters, which information was put on file in January itself and moved in the chain of command but neither such file containing such information was handed over to CBI nor procured by CBI nor proved on record by the prosecution. Even PW2 was not cross examined by Ld. PP for CBI for having not testified about the facts containing sequence of events with respect to meetings of PW1 with A2 and A1, alleged to be told by PW1 to PW2 or about receipt of Scotch bottle D26 on 31/05/2001 by PW2 from PW1 alleged to have been received by PW1 from A1 through A2 or about handing over on 14/06/2001 of Rs 50,000/ Ex PN/1 to 100 by PW1 to PW2 alleged to have been received by PW1 from A1 as advance for procurement of the sensitive information relating to VIP Executive Jets. PW4 testified that PW1 used to brief him (PW4) and PW2 after his meetings with A2. PW4 testified that in January 2001 PW1 told him (PW4) that A2 had approached him to get some sensitive information regarding his Directorate on payment of monetary consideration. Subsequent thereto, PW4 apprised his superiors, took PW1 to PW2, the then Joint Director Intelligence and after discussions with superiors, it was decided to let PW1 continue the parleys with A2 to know more about his connections and his other associates who were interested in obtaining the sensitive information through PW1. As per PW4, subsequently PW1 had a series of meetings CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 43/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

with A2 and somewhere in first or second week of July, 2001 A2 introduced PW1 to A1, in the absence of PW4. Neither PW4 whispered in his examination nor was asked in cross examination by Ld. PP for CBI for having not testified about the facts containing sequence of events with respect to meetings of PW1 with A2 and A1 in the months of February 2001 till June 2001, alleged to be told by PW1 to PW2 and PW4 or about receipt of Scotch bottle D26 on 31/05/2001 by PW2 from PW1 alleged to have been received by PW1 from A1 through A2 or about handing over on 14/06/2001 of Rs 50,000/ Ex PN/1 to 100 by PW1 to PW2 alleged to have been received by PW1 from A1 as advance for procurement of the sensitive information relating to VIP Executive Jets. No minutes of meetings interse PW1 and A2, interse PW1 and A 1 with or without A2 were drawn by any of the Air Force Authorities nor produced nor proved. No writing work was done by any Air Force Authorities including PW2, PW4 and PW1 in respect of receipt of Scotch bottle D26 on 31/05/2001 by PW2 from PW1 alleged to have been received by PW1 from A1 through A2 or about handing over on 14/06/2001 of Rs 50,000/ Ex PN/1 to 100 by PW1 to PW2 alleged to have been received by PW1 from A1 as advance for procurement of the sensitive information relating to VIP Executive Jets. Neither numbers of currency notes of aforesaid sum of Rs 50,000/ Ex PN/1 to 100 were noted down nor any specific identification marks were put on Scotch bottle D26 or such currency notes of aforesaid sum of Rs 50,000/ nor it is known at what place these were secured before their production before CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 44/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

the investigating agency. No document/file of Air Force Authorities was seized/produced/proved to depict or prove of receipt of Scotch bottle D 26 on 31/05/2001 by PW2 from PW1 alleged to have been received by PW1 from A1 through A2 or about handing over on 14/06/2001 of Rs 50,000/ Ex PN/1 to 100 by PW1 to PW2 alleged to have been received by PW1 from A1 as advance for procurement of the sensitive information relating to VIP Executive Jets. Even lodged complaint PW1/DA1 (D1) finds no mention of receipt of Scotch bottle D26 on 31/05/2001 by PW2 from PW1 alleged to have been received by PW1 from A1 through A2 or about handing over on 14/06/2001 of Rs 50,000/ Ex PN/1 to 100 by PW1 to PW2 alleged to have been received by PW1 from A1 as advance for procurement of the sensitive information relating to VIP Executive Jets. PW2 simply stated to have handed over the said sum of Rs 50,000/ Ex PN/1 to 100 (collectively D27) to CBI and at that time having signed on the first and last currency note of the bundle. Deposition of PW2 is bereft of source of obtainment of said sum of Rs 50,000/ Ex PN/1 to 100 (collectively D27) by PW2. Embellishments, improvements, additions, material contradictions, severe infirmities, inherent improbabilities are writ large on the face of testimony of PW1 and makes it vivid and clear that the delay in reporting the matter resulted in embellishment which is a creature of afterthought. Due to delay the first information not only got bereft of advantage of spontaneity, but there had been introduction of colored version, concocted story as a result of deliberation and consultation. Fact of the CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 45/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

matter remains that the delay in the lodging of first information report in this matter has not been satisfactorily explained.

42. Be that as it may, fact remains that pursuant to lodging of complaint Ex PW1/DA1 (D1) on 26/07/2001 and receipt of information contained in FIR at 4 pm on 26/07/2001, neither any verification proceedings were done nor any inquiry was instituted to verify authenticity/genuineness of allegations against arraigned accused persons. It is not to be lost sight of the fact that complaint Ex PW1/DA1 (D1) was devoid of the allegations of receipt of Scotch bottle D26 in May 2001 by PW1 from A1 through A2 or about receipt of Rs 50,000/ Ex PN/1 to 100 (collectively D27) by PW1 from A1 in June 2001 as advance for procurement of the sensitive information relating to VIP Executive Jets. Ex PW1/DA1 (D1) lacks mention (1) of the manner in which PW1 was approached by A2 on 26/07/2001 to meet A1 in the evening with a classified/sensitive information; (2) any details/particulars of sought classified/sensitive information; (3) on what terms such classified/sensitive information was sought by A2 from PW1; (4) where such classified/sensitive information was to be delivered and by whom. Information on aforestated facts was not sought. FIR Ex PW14/A (D2) bears signatures of SP Sh P.V Ramashastry and the fact that the information was reported at 16 hours on 26/07/2001 by complainant/informant PW4. PW14 testified that after registration of the CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 46/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

FIR, copy Ex PW14/A (D2), the investigation was entrusted to him. PW14 also elicited that he had examined PW1 and PW4 regarding said complaint, though he had not recorded their statements during their such examination and subsequent thereto it was decided to lay a trap in respect of A1 while accepting classified information from PW1. The independent witnesses were arranged by the Duty Officer in the office of CBI. PW5, the then Assistant Chemical Examiner in department of Excise Entertainment and Luxury Tax situated at L Block, Vikas Bhawan, ITO, Delhi testified that at 2.30 pm on 26/07/2001 a dealing clerk of Administration department in his office told him to accompany CBI team in the raid after which PW5 accompanied the CBI team of 2/3 officials which had come in their office and they reached CBI Headquarter at CGO Complex and PW5 was taken to a room in a Section at second or third floor therein and shown Ex PW1/B (D6). PW6, the then UDC in Accounts Branch in Excise Department of Delhi Government having office at ITO, testified that at 3.30/3.45 pm on 26/07/2001 his Accounts Officer directed him to go with CBI officials as there were directions to that effect by their Administrative Officer upon which PW6 left with CBI officers from his office at around 4 pm. If as per Ex PW14/A (D2), the premier investigating agency through its officers had gained knowledge of facts contained in said FIR on reporting at 4 pm on 26/07/2001 and after registration of said FIR subsequent inquiries were made by PW14 from PW1 and PW4 and only thereafter Duty Officer made arrangements for independent witnesses, CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 47/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

then how could 2/3 officials reached at the office of PW5 at ITO well before 2.30 pm on 26/07/2001 and at the office of PW6 also at ITO well before 3.30 pm on 26/07/2001? Complaint, annexed material and evidence of prosecution is bereft of any material/fact of arrangement of independent witnesses excepting that it was Duty Officer who arranged independent witnesses. It is not the case of prosecution/investigating agency that any officer of investigating agency had any prior knowledge about any of the facts contained in Ex PW14/A (D2) prior to reporting of the matter at 4 pm on 26/07/2001. There was no occasion for any official/Duty Officer/Officer of CBI for making arrangements of independent witnesses for laying of trap in this matter prior to 4 pm on 26/07/2001. Handing over memo Ex PW1/E (D3) finds mention at the outset to have been prepared at 16:30 hours on 26/07/2001 and in the end that the proceedings detailed therein to have been concluded at 5.30 pm that day. Instead of satisfying themselves by seeking information on afore elicited facts not detailed in Ex PW14/A (D2), extreme hurry was shown by concerned officers of investigating agency including IO PW14 to proceed with the trap proceedings in that evening at the residence of A1, in an apparent predecided manner with purported prenotion of A 1 and A2 to be in conflict with law.

43. Handing Over Memo Ex PW1/E (D3) inter alia finds mention:

"Cdr. M.N. Saxena produced photocopy of a classified Air Force CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 48/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

document containing three sheets which has been shown to the witnesses. The witness Shri Om Prakash has underlined the figure '85/89' on the last page of the said document (Appendix 'C') and Shri Sunil Kumar Singh has underlined the figures '16/17' on the same page, for identifying the document at a later stage. One photocopy of the said document was also made with the full signatures of both the witnesses and is kept in a sealed cover, which is also signed by them.

The said document was also smeared with phenolphthalein powder and kept in a plain cover. The reaction of phenolphthalein with sodium carbonate was also demonstrated by Inspector P. Balachandran whereby it was shown that the person handling the tainted document gets his hands washed in sodium carbonate solution, the colourless solution would turn pink in colour. The document kept in the cover was entrusted to Sqn. Leader Sharma with directions to hand over the same to AVM J.S Kumar on his demand."

44. IO PW14 testified that PW4 had produced photocopy of a classified Air Force document containing three sheets, which PW4 had shown to PW14 and PW14 had mentioned about it in Ex PW1/E (D3) at page number 1 in para 2 (the first para of the above quoted portion). PW14 further deposed that he did not obtain signatures of any Air Force official on aforesaid produced photocopy of classified Air Force document in three sheets. As per PW14, he had also got one photocopy of said photocopy of classified Air Force document in three sheets with full signatures and kept it in a sealed cover, as is mentioned in the end of para 2 of Ex PW1/E (D3) at page number 1 (the first para of the above quoted portion). PW14 further elicited that Ex PW1/B (D6) had the signatures of PW5 and PW6 at the bottom of three sheets. As per PW14, CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 49/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

Ex PW1/B (D6) was not kept in sealed cover but it was treated with phenolphthalein powder and the witnesses had underlined some figures i.e., 85/89 and 16/17 in the third sheet having at right corner "Appendix C" and at that time the witnesses had not signed the three sheets of Ex PW1/B (D6) and document Ex PW1/B (D6) was handed over to PW1 for handing over the same to A1 on demand. As per PW14, Ex PW1/B (D6) was given to PW1 in a cover but not in a sealed cover. PW14 deposed that the sealed cover envelope containing photocopy of classified Air Force document in three sheets with full signatures of two witnesses was not filed with the complaint but either kept in his office or with the Malkhana regarding which PW14 could not elicit despite having refreshed his memory from the case diaries and records.

45. Per contra to version of PW14, none of the other examined material witnesses of trap namely PW1, PW5, PW6, PW7 and PW12 testified of preparation of any photocopy of classified Air Force document in three sheets, produced by PW4, by any Officer/Official of CBI including PW14. PW5 testified that after he had signed Ex PW1/B (D6) (in pretrap proceedings in CBI office) it was kept by CBI Officials and PW5 was told that this document will be given at the time of raid. PW5 stated that he did not remember where Ex PW1/B (D6) was kept by CBI officials after it was signed. On resiling, during course of cross examination, PW5 parrot like admitted put forth suggestions of Ld. PP for CBI including of Ex PW1/B (D6) being given to PW1 by CBI CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 50/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

Officials in CBI office with instructions to give it to A1 on demand. In his examination in chief PW6 testified that from his office CBI officials took him at 4 pm on 26/07/2001 towards Safdarjung side and then towards Saket side to a farm house in a small bus type vehicle. On resiling, during course of cross examination, PW6 parrot like admitted put forth suggestions of Ld. PP for CBI including that from his office he was taken to CBI Office, in CBI Office he signed Ex PW1/B (D6) after underlining at 85/89 and 16/17 were done at AppendixC on its third page. Aforesaid relevant witnesses of trap namely PW1, PW5, PW6, PW7 and PW12 did not whisper of either preparation of photocopy of photocopy of classified Air Force document after its production by PW4 in CBI office or of keeping it in a sealed cover after it had been signed by PW5 and PW6. None of examined material witnesses of trap including PW1, PW5, PW6, PW7, PW12 and PW14 have testified that after leaving of CBI office, PW5 or PW6 at any moment of time had appended any signature on such photocopy of classified Air Force document [Ex PW1/B (D6)] used in the trap. If the elicited version of PW14 is believed then how could Ex PW1/B (D6) bear signatures of PW5 and PW6 on portions X and Y respectively? As per version of PW14, when Ex PW1/B (D6) was handed over to PW1 in CBI Office for use in trap, its three sheets were not signed by PW5 and PW6 on portions X and Y respectively and at no moment of time later after departure from CBI office said document was signed by PW5 and PW6 on portions X and Y respectively. The envelope sealed in CBI office CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 51/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

contained photocopy of classified Air Force document signed by PW5 and PW6 but said sealed envelope containing such document was neither filed with complaint nor produced in evidence from Malkhana during trial. Ex PW1/B (D6) is the document alleged to have been recovered by PW5 from the pant pocket of A1 on 26/07/2001 at his residence of Sainik Farms as per recovery memo Ex PW1/C (D4) and Ex PW1/B (D

6) contains the signatures of PW5 and PW6 at portions X and Y respectively, whereas as per version of PW14 the photocopy of the classified Air Force document for use in trap handed over to PW1 was not having any signatures of PW5 and PW6 and no where at any place after leaving CBI office such handed document to PW1 was signed by PW5 and PW6 nor after alleged recovery from A1 from his pant pocket at his residence at Sainik Farms such alleged recovered document was signed by PW5 and PW6. In the course of his cross examination PW6 testified that he could not tell as to which document was recovered from A1 on his search at his residence at Sainik Farms. Elicited aforesaid facts, bring into fore every reasonable possibility of replacing of alleged recovered document from pant pocket of A1 at his residence at Sainik Farms with the photocopy of alleged classified Air Force document kept in sealed cover envelope by PW14. Major contradictions and inherent improbabilities accordingly have surfaced interse examined prosecution witnesses in respect of what alleged classified Air Force document was handed over to PW1 to be used in trap and what alleged classified Air Force document was allegedly recovered from pant pocket of A1 at his CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 52/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

residence at Sainik Farms after 7.30 pm on 26/07/2001.

46. In transit from CBI office to residence of A1, PW1 used own car and on way near AIIMS picked A2. Car of PW1 was not subjected to search at any moment of time before reaching residence of A1. From amongst the examined material witnesses of trap namely PW1, PW5, PW6, PW7, PW12 and PW14, only PW1 as decoy had went inside the residence of A1 at Sainik Farms after 7 pm on 26/07/2001. In terms of version of PW1, A1 never demanded any document much less Ex PW1/B (D6) from PW1 on 26/07/2001 at his residence when he went inside and till he remained there. Instructions to PW1 as per Ex PW1/E (D3) and testimonies of CBI officials were to hand over the photocopy of classified Air Force document used in trap only on demand of A1. In his deposition PW1 did not even whisper of such instructions. There was no occasion for PW1 to hand over the photocopy of classified Air Force document used in trap to A1 without demand, per contra to elicited instructions to him. Ex PW1/B (D6) after application of phenolphthalein powder in CBI office was purportedly kept in an unsealed envelope in CBI office and handed over to PW1. Allegedly before handing over of Ex PW1/B (D6), PW1 removed it from the envelope; on entering the premises of A1, PW1 had exchanged pleasantries with A1. So there was possibility of transmission of phenolphthalein powder particulars from PW1 to A1 during exchange of such pleasantries, generally including handshake, thereby making the CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 53/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

evidence of washes in bottles Ex PW1/D1 to Ex PW1/D3 i.e., washes of both hands of A1 and pant wash of A1 contained in report Ex PW16/A (D19) of PW16 of such washes having given positive tests for phenolphthalein and sodium carbonate, pale into insignificance. Even otherwise phenolphthalein powder was allegedly applied on photocopy of alleged classified Air Force document, which as per IO PW14, was not containing any signatures of PW5 and PW6 whereas allegedly recovered document Ex PW1/B (D6) has signatures of PW5 and PW6 at portions X and Y respectively. As per PW14, phenolphathalein powder was not applied on photocopy of alleged classified Air Force document which was containing signatures of PW5 and PW6 but was kept in a sealed cover envelope.

47. PW1 testified that slip Ex PW2/C (D28) was given to him by A2 in 3rd week of April 2001 and on the next day thereof he (PW1) had handed over the said slip to Sq. Leader Pankaj Jain. In Ex PW1/DA, previous statement under Section 161 Cr.P.C of PW1 dated 15/10/2001 at portion A to B there is mention of A2 handing over a written slip [Ex PW2/C (D28)] to PW1, which was handed over to PW4 and accordingly PW1 was confronted on this count with said previous statement. At portion encircled X, Ex PW2/C (D28) finds mention "Manuscript by Sgt Saini handed over by S/L Sharma". PW2 claimed that he had handed over Ex PW2/C (D28) to the CBI and the writing at portion encircled X, Ex PW2/C (D28) "Manuscript by Sgt Saini handed over by S/L CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 54/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

Sharma" to be of him (PW2), which was so written by him as PW1 told him (PW2) that he (PW1) had obtained the document from A2. PW2 stated that he did not ascertain as to who was the author of Ex PW2/C (D28). Lodged complaint Ex PW1/DA1 (D1) is devoid of any averments of any afore elicited facts regarding slip Ex PW2/C (D28), though it contains the alleged information declared by PW1 from portion B to C on basis of which FIR Ex PW14/A (D2) was registered. PW2 could not elicit when slip Ex PW2/C (D28) was handed over to him. Neither admitted nor specimen writings of A2 were procured nor such writings alongwith writings in slip Ex PW2/C (D28) were sent for comparison and opinion of any competent handwriting forensic expert. Neither any witness who had seen A2 writing and signing in the course of his duties or otherwise was conversant with the writings of A2, had been cited nor examined as a prosecution witness to prove the writings in slip Ex PW2/C (D28) to be of A2. In his statement under Section 313 Cr.P.C, A2 denied of slip Ex PW2/C (D28) to be in his writing. Accordingly, slip Ex PW2/C (D28) is of no aid for the prosecution for proving its case in any manner whatsoever.

TAPE RECORDED CONVERSATION

48. In the case of Yusufalli vs State of Maharashtra, 1968 Cri.L.J 103 (SC), on the question regarding admissibility of the tape CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 55/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

recorded conversation, the Supreme Court observed that the contemporaneous taperecord of a conversation formed part of the res gestae and is relevant fact and admissible under Section 8 of Indian Evidence Act. The recorded conversation is admissible provided first the conversation is relevant to the matters in issue; secondly, there is identification of the voice, and, thirdly, the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing, the tape record. It was also therein observed that since the taperecords are prone to tampering, the time, place and accuracy of the recording must be proved by a competent witness. It is necessary that such evidence must be received with caution. The Court must be satisfied, beyond reasonable doubt that the record has not been tampered with.

49. In the case of Ziyauddin Burhanuddin Bukhari AIR 1975 SC 1788, Supreme Court held that the taperecords of speeches were admissible in evidence on satisfying the following conditions :

"(a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it.

(b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record.

(c) The subjectmatter recorded had to be shown to be relevant according to rules of relevancy found in the Evidence Act."

50. In R.M. Malkani vs State of Maharashtra, 1973 Cri.L.J 228, Supreme Court laid down the essential conditions which, if fulfilled CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 56/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

or satisfied, would make a taperecorded statement admissible otherwise not; and observed thus :

"Tape recorded conversation is admissible provided first the conversation is relevant to the matters in issue; secondly, there is identification of the voice; and, thirdly, the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the tape record."(Emphasis supplied)

51. In the case of R.M Malkani (Supra), it was also held that the telephonic conversation of an innocent citizen will be protected by Courts against wrongful or high handed interference by tapping the conversation. The protection is not for the guilty citizen against the efforts of the police to vindicate the law and prevent corruption of public servants. It must not be understood that the Courts will tolerate safeguards for the protection of the citizen to the imperiled by permitting the police to proceed by unlawful or irregular methods.

52. In Ram Singh vs. Col. Ram Singh, AIR 1986 SC 3 the Supreme Court has observed that:

"A tape recorded statement is admissible in evidence subject to the following conditions:

(1) The voice of the speaker must be identified by the maker of the record or other persons recognising his voice.

Where the maker is unable to identify the voice, strict proof will be required to determine whether or not it was the voice of the alleged speaker.

(2) The accuracy of the tape recorded statement must be proved by the maker of the record by satisfactory evidence direct or circumstantial.

CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 57/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

(3) Possibility of tampering with or erasure of any part of the tape recorded statement must be totally excluded.

(4) The tape recorded statement must be relevant.

(5) The recorded cassette must be sealed and must be kept in safe of official custody.

(6) The voice of the particular speaker must be clearly audible and must not be lost or distorted by other sounds or disturbances."

53. In the case of Mahabir Prasad Verma vs. Dr. Surinder Kaur, AIR 1982 SC 1043, it was held that tape recorded conversations can only be relied upon as corroborated evidence of conversation deposed by any of the parties to the conversation and in the absence of evidence of any such conversation, the tape recorded conversation is indeed no proper evidence and cannot be relied upon.

54. The conditions laid for admissibility of tape recorded statement in evidence in the cases of Ram Singh (Supra) and Mahabir Prasad Verma (Supra) found approval of the Supreme Court in the case Nilesh Dinkar Paradkar vs. State of Maharashtra, JT 2011 (3) SC

429.

55. It is to be seen, whether the tape recorded conversation in the cassette Ex PX1 was properly recorded, sealed, preserved, kept, not CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 58/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

tampered with at any stage and its accuracy has been proved by the maker of the record by satisfactory evidence, direct or circumstantial.

56. PW7 deposed that on 31/07/2001 the specimen voice of A1 was obtained by SI Prem Nath and PW7 in the presence of PW8 and Sh Ramesh Kumar, two independent witnesses who were ticket collectors in New Delhi Railway Station, in CBI office and the same was recorded in a cassette Ex PW7/B (S1) with the help of cassette recorder; the said cassette with inlay card Ex PW7/C was duly sealed; a specimen voice recording memo Ex PW7/A (D7) to that effect was prepared.

57. PW12 deposed that on 06/08/2001, as per the direction of the IO PW14, he had also obtained the specimen voice of A2 vide specimen voice recording memo Ex PW11/A (D14) in the presence of two independent witnesses namely PW11 and Sh Ravi Kumar. Strangely enough Ex PW11/A (D14) does not bear any signatures of A2 and on that count there is no plausible explanation of PW12 and PW14. It is not the case of investigating agency/prosecution that A2 had refused to sign Ex PW11/A (D14). A2 in his statement under Section 313 Cr.P.C categorically stated that his voice specimen was never obtained and for that reason Ex PW11/A (D14) does not contain his signatures. PW11, Kanoongo in office of ADM testified that on 06/08/2001 he was called from his office in the CBI office where he was made to hear voice recorded in the cassette by CBI officer after which such cassette was CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 59/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

sealed with the seal of CBI and then he signed Ex PW11/A (D14) which was prepared. PW11 also stated that he did not knew whose voice he was made to hear as aforesaid. On questions put to PW11 in accordance with Section 154 of Evidence Act, by the Ld. PP for CBI, PW11 parrot like inter alia admitted that specimen voice of A2 was recorded in his presence. In cross examination by Ld. Defence Counsel for A2, PW11 elicited that during his stay of several hours in CBI office, only when he was made to hear the voices then he came to know for what purpose he was called and before that he was not told the purpose nor was introduced to CBI officers. PW11 also did not identify A2 as the person whose voice specimen was recorded in his presence. Elicited evidence of PW11 and absence of signatures of A2 on Ex PW11/A (D14) without any justifiable reason bring into fore every reasonable possibility of the audio cassette SII not containing voice specimen of A2.

58. Tape Recorder Handing Over Memo Ex PW1/A (D5) dated 26/07/2001 was prepared by PW14 and concluded at 5.45 pm in CBI office before leaving for trap. It inter alia embodies the fact that after completion of pretrap formalities as recorded in said memo Ex PW1/E (D3), one automatic receiver cum recorder, one credit card type transmitter, one sealed blank audio cassette make TDK and one hearing cord were arranged; such cassette was inserted in automatic receiver cum recorder and played to ensure that it does not contain any prerecorded voice. Formal voices of PW5 and PW6 were recorded in the cassette with CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 60/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

the help of transmitter and signatures of PW5 and PW6 were obtained on the paper slip pasted on the cassette. SI Prem Nath explained the working of equipments to all. Ex PW1/A (D5) also finds mention of following facts:

"The transmitter will be given to the decoy Sqn. Ldr.

D.K.Sharma, reaching the spot prior to contacting the accused. The automatic receiver cum recorder alongwith its hearing cord will also be handed over to the witness for the purpose of hearing the conversation that takes place between the accused and the complainant and also record the same simultaneously."

59. Deposition of PW1, PW5, PW6, PW12, PW14 and documents of investigating agency/prosecution including Tape Recorder Handing Over Memo Ex PW1/A (D5), Recovery Memo Ex PW1/C (D

4), Handing Over Memo Ex PW1/E (D3) find no mention as to when and where (1) the transmitter was actually handed over to PW1; (2) the automatic receiver cum recorder alongwith its hearing cord were actually handed over to any witness of trap for purpose of hearing the conversation that takes place between the accused and the complainant and also to record the same simultaneously. Per contra to elicited averments in Ex PW1/E (D5), PW7 testified that a card type transmitter was handed over to complainant and the cassette recorder (KCR) was handed over to PW5 in the CBI office before departing for trap. As per Recovery Memo Ex PW1/C (D4), the trap team including independent witnesses PW5 and PW6 departed from CBI office at 5.45 pm after completion of scribing of Ex PW1/A (D5) and Handing Over Memo Ex CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 61/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

PW1/E (D3). PW5 did not whisper of the cassette recorder having been handed over to him in CBI office nor on this count any question or any suggestion was put to him in his cross examination after he resiled. PW1 testified that he received the recording device in CBI office but he could not describe such device and did not say that it was a transmitter. PW1 deposed that in CBI office he was given the recording device which he tucked in his vest beneath shirt. Also PW1 did not say that the automatic receiver cum recorder along with its cord was handed over to PW5 or any other witness or trap team member in his presence either at CBI office or in transit or at any moment of time before entering of PW1 in the premises of A1. PW7 testified that before 6 pm on 26/07/2001 in CBI office a card type transmitter was handed over to complainant (PW4?) and the cassette recorder (KCR) was handed over to PW5 for the purpose of recording the conversation. PW12 testified that while preparing the Handing Over Memo Ex PW1/E (D3), a transmitter was handed over to PW1 and the KCR recorder was kept with the trap team, so that the conversations taking place during the trap could be recorded. In his examination in chief, PW6 did not whisper of any handing over of transmitter or cassette recorder to any person in CBI office. PW6 parrot like admitted suggestions given in his cross examination by Ld. PP for CBI including that SI Prem Nath explained procedure of automatic receiver cum recorder and gave its hearing cord to PW5. Even it was not suggested to PW6 by Ld. PP for CBI as to whom the transmitter or cassette recorder was handed over in CBI office. Strangely enough, the CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 62/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

kingpin of investigation, IO PW14 remained silent in the course of his testimony and did not whisper about the facts as to when, where and whom the transmitter or cassette recorder were handed over. PW14 simply deposed that working of recorder as well as transmitter was demonstrated by SI Prem Nath, newly sealed cassette was opened and checked to verify there were no prerecorded voices therein, voices of PW5 and PW6 were recorded, Ex PW1/A (D5) was recorded after which and before leaving CBI office, it was ensured by mutual search of all trap team members that all the team members had washed their hands with soap and except the trap kit and the recording devices, no member of the trap team carried any other document except the copy of the classified document of Air Force, which was in the possession of PW1. Said transmitter and cassette recorder were neither seized, nor relied nor produced in prosecution evidence nor proved.

60. It is borne out from Recovery Memo Ex PW1/C (D4) that its preparation was started at about 8 pm on 26/07/2001 at Sainik Farm residence of A1 and it was concluded by about 9 pm on 26/07/2001. The concluding portion of Ex PW1/C (D4) finds mention that:

"The KCR 360 recorder used in this proceedings for recording the conversation taking place between Sqn. Ldr. Sharma, Sgt. Saini & AVM Kumar, was opened in the presence of the witnesses and the cassette (TDK D60) was covered with a cloth wrapper and sealed using the CBI seal. Both the witnesses have signed on the cassette label and cloth wrapper. The classified document recovered from AVM J.S. Kumar, the 3 sealed glass bottles. Cassette are seized vide this memo. This memo has been read over CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 63/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

and signed by the team members. This proceedings concluded by about 9 pm."

Ex PW1/C (D4) finds no mention of preparation of either duplicate or copy of cassette in the proceedings or of its sealing or retention by any person or handing it over to any person. PW1 did not whisper when and to whom he handed back the recording device. In the course of examination of PW1, the seized audio cassette Ex PX1 was produced in parcel sealed with seal of CFSL and on opening of it neither the cassette Ex PX1 nor its inlay card were bearing signatures of PW1. Ex PW1/C (D4) also finds no mention as to who retained the KCR 360 recorder before cassette Ex PX1 was taken out from it. None amongst trap team members PW1, PW5, PW6, PW7 and PW12 deposed of any preparation of duplicate/copy of cassette Ex PX1 in the course of proceedings conducted vide Recovery Memo Ex PW1/C (D4). On resiling, PW6 was cross examined by Ld. PP for CBI and in the course of such cross examination PW6 parrot like admitted several suggestions including about the display of the original recorded cassette at spot (Sainik Farm residence of A1) and preparation of investigation copy of cassette after which he (PW6) signed on label of cassette and cloth and original cassette was sealed and seal given to PW5. PW7 deposed that the recordings in the cassette Ex PX1 were heard and said cassette in inlay card Ex PX2 was sealed and taken in police possession vide Recovery Memo Ex PW1/C (D4) but PW7 did not remember which trap team member of CBI sealed the cassette. PW12 testified that after he had CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 64/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

prepared the Arrest and Personal search Memo Ex PW5/A (D17) at Sainik Farm residence of A1, cassette Ex PX1 used in the proceedings was taken out of the KCR cassette recorder; then the said cassette Ex PX1 was also sealed after which PW12 prepared Recovery Memo Ex PW1/C (D4) while seal was handed over to PW5 after obtaining its facsimile impression of all pages of said Recovery Memo Ex PW1/C (D

4). Neither PW7 and PW12 testified of preparation of any investigation copy of cassette Ex PX1 nor on this count, they were cross examined by Ld. PP for CBI. No document including Handing over memo Ex PW1/E (D3); Recovery Memo Ex PW1/C (D4); Tape Recorder Handing Over Memo Ex PW1/A (D5) find mention of any equipments for preparation of duplicate copy of cassette or any blank cassette for duplicate copy of cassette or as to which trap team member carried them or prepared such duplicate copy of cassette Ex PX1. No examined prosecution witness elaborated his role in preparation of alleged investigation copy of cassette from cassette Ex PX1. PW14 in cross examination stated that SI Prem Nath was carrying equipments for preparation of duplicate copy of cassette and was handling such operation but PW14 could not specify what those equipments /devices were. SI Prem Nath was not examined in prosecution evidence. No copy of statement under Section 161 Cr.P.C of SI Prem Nath, if any recorded in investigation was filed with complaint. In the course of his examination in chief on 16/11/2013, PW14 inter alia deposed that at the Sainik Farm residence of A1, the cassette cum recorder was also opened and the cassette Ex PX1 was also played CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 65/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

before the independent witnesses and a copy of which was also prepared, thereafter, the original cassette Ex PX1 was sealed and the CBI seal was handed over to PW5. For moving appropriate application on record for placing on record documents including rough site plan, memo regarding preparation of duplicate copy of cassette from original cassette, etc. adjournment was obtained by the prosecution on 16/11/2013. On 26/11/2013, application dated 22/11/2013 was moved by Inspector Manoj Kumar, Holding IO for taking on record documents D33 to D36 including D34 a memo dated 26/07/2001 regarding preparation of duplicate copy of the cassette from original cassette, for the purpose of investigation, sealing of original cassette and handing over of the seal to witness. After hearing the parties, the said application was disposed off vide order dated 21/02/2014 and the prosecution was permitted to place on record the said documents D33 to D36 and to prove them in accordance with law, with the observations including that whether or not said documents D33 to D36 were antedated, manipulated or fabricated will be adjudicated in the final decision of the matter in appreciation of evidence. On 06/03/2014 PW14 further testified that Memo Ex PW14/C (D34) was prepared on 26/07/2001 as he had prepared a duplicate cassette of recordings which had taken place between the decoy PW1 and A2 and A1, for the purpose of investigation. Memo Ex PW14/C (D34) reads as follows:

"In the presence of signatories to this memo, the original cassette containing the conversation between Sq. Ldr D.K Sharma, Sgt. K.C. Saini and AVM J.S. Kumar has been replayed for the purpose CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 66/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

of preparing its duplicate copy for the purpose of investigation. The original cassette has been thereafter sealed with the CBI seal and the seal has been handed over to Sh Sunil Kumar for safe custody. The witnesses have signed on the cassette label and cloth wrapper."

Purported signatures of PW14, PW5, PW6, PW12 and SI Prem Nath with date 26/07/01 are there beneath afore elicited writing in Ex PW14/C (D34). Afore elicited writing in Ex PW14/C (D34) is per contra to the elicited writings in the last para of Recovery Memo Ex PW1/C (D4). There is no mention in Recovery Memo Ex PW1/C (D4) of replay of original cassette Ex PX1 or preparation of its duplicate copy and the fact of sealing of original cassette Ex PX1 after preparation of its duplicate copy. Scribing of Recovery Memo Ex PW1/C (D4) was started at 8 pm and concluded at 9 pm. Report Ex PW15/A (D23) of PW15 Dr. Rajender Singh, the then Senior Scientific Officer GradeI and now Director CFSL CBI finds mention inter alia of the cassette then mark exhibit Q, exhibited as Ex PX1 in prosecution evidence, to be containing 47 minutes total duration of recordings. In terms of elicited version of Ex PW14/C (D34) the original cassette Ex PX1 was replayed at Sainik Farm residence of A1 and its duplicate copy was prepared after which original cassette Ex PX1 was sealed. Of course, for such events to happen the time consumed would have been much more than 47 minutes in all. If that was so, how could the other entire proceedings of (1) alleged recovery of document Ex PW1/B (D6) from pant pocket of A1 by PW5; (2) hand washes of A1; (3) right pant CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 67/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

pocket wash of A1; (4) sealing of bottles containing washes; (5) signing of the witnesses on the articles seized; (6) interrogation of A2; (7) arrest of A1 and A2; (8) preparation of separate search memos of A1 and A 2; (9) preparation of rough sketch Ex PW14/B (D33) of scene of offence with signatures of witnesses; (10) obtaining of facsimile impression of CBI seal on three sheets; (11) sealing process of cassette Ex PX1; (12) preparation of Recovery Memo Ex PW1/C (D4) itself; could have taken place within the period of one hour from 8 pm to 9 pm on 26/07/2001, in terms of the averments of Recovery Memo Ex PW1/C (D4). Elicited facts hereinabove simply make me reach to sole conclusion of there being every likelihood/possibility/probability of fabrication/ manipulation of Ex PW14/C (D34) later to scribing of Recovery Memo Ex PW1/C (D4) on/or later to 26/07/2001. Any how neither PW5 deposed of having received any seal after use in trap proceedings at Sainik Farm residence of A1 nor PW5 was cross examined by Ld. PP for CBI on this count nor the seal purportedly given to PW5 was received by any officer of CBI at any point of time nor was such seal deposited with CBI or in the Court nor produced during prosecution evidence.

61. 36 pages transcription Ex PW1/F (D15) bears signatures of PW1, PW14 and SI Prem Nath with date 15/10/01. Transcription Ex PW1/F (D15) was prepared by PW1. PW1 testified that it took a week for him to prepare said transcription some time in October 2001 and he CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 68/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

had prepared it partly in CBI office, partly in his home and partly in 5LU office and for preparation of said transcription he was given the seized cassette by the CBI, which he had taken at home. PW14 deposed that original cassette Ex PX1 or its duplicate copy were not given to PW1 for preparation of its transcript at his home or else where. PW14 stated that on his instructions SI Prem Nath with assistance of PW1 had also prepared transcription Ex PW1/F (D15) on 15/10/2001. SI Prem Nath was not examined as a prosecution witness. List of document annexed with, complaint Ex PW14/D finds mention that aforesaid transcription of 36 sheets, Ex PW1/F (D15) was prepared by PW1 alongwith PW14 and SI Prem Nath. So, fallacy in afore elicited version of PW14 is writ large on face of record.

62. In the course of cross examination of PW1 by Ld. Counsel for A1, the cassette Ex PX1 was displayed and PW1 admitted that in the portion of recorded conversation in the said cassette after the portion of transcript Ex PW1/F as recorded at S.No. 566, there are no words spoken as "Bus say 50,000/" as is mentioned in part of S.No. 567 of transcript Ex PW1/F but there are words spoken as "Aap Dekhiye Sir Minimum Kitna bus.....".

63. In the course of final arguments on 05/09/2014 the cassette Ex PX1 was again displayed and heard in the presence of Ld. Senior PP for CBI, A2, Ld. Counsels for arraigned accused persons and Holding CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 69/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

IO Inspector Alok Kumar and it was observed that in the end portion of side A of cassette Ex PX1 after the dialogue of serial number 391 of transcript Ex PW1/F (D15), subsequently the dialogues of serial number 387, 388, 389, 390 and 391 of transcript Ex PW1/F (D15) were found recorded. Even side B of cassette Ex PX1 started with part of dialogue of serial number 391 of transcript Ex PW1/F (D15) in repetition of the said dialogue which was at the end of side A of said cassette. Such condition of cassette Ex PX1 finds no mention in the report Ex PW15/A (D23) of stated expert PW15. PW15 elicited that he had taken voice grams during the course of his examination but had not annexed them with report Ex PW15/A (D23). PW15 admitted that he had not done any degree course in the science of voice identification, Phonetics, Linguistic and Speech and Hearing Science from any University, recognized or otherwise but simply got training in the field of Voice Identification from his Ex Director Dr. S.R Singh, for which no certificate was issued to PW15 for any such training or PW15 having obtained any expertise in such field. PW15 admitted that even in Jawahar Lal Nehru University and in Delhi University there is a course in respect of Linguistic and Phonetics.

64. Report Ex PW15/A (D23) finds no mention of the description of seal by which the exhibits received were sealed. PW15 stated that he had mentioned the description of seal in his work sheet at the time of opening the parcels. Such work sheet was not annexed with CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 70/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

report Ex PW15/A (D23) nor was produced in the course of prosecution evidence nor proved. PW15 also elicited that CBI had sent request on 15/10/2001 to prepare a true copy of the questioned cassette marked Q, later on Ex PX1, which was to be handed over to the person who brought the exhibits on the same date and accordingly PW15 handed over the true copy of the questioned cassette after preparing it but did not mention in report Ex PW15/A (D23) the fact of handing over of such copy of cassette on 15/10/2001. Neither in records it was mentioned by PW15 nor could PW15 elicit the particulars of instrument used for preparation of such true copy of questioned cassette. PW15 also elicited that he had prepared rough transcript of questioned voice as well as sample voice with the assistance of his assistant Mr. Ravi Kumar, which was so done to select common sentences between questioned and sample voices. Such rough transcript is not part of report Ex PW15/A (D23) nor was in the office record of PW15. PW15 stated that said rough transcript was destroyed after examination of the exhibits. As per PW15, there were no guidelines for voice comparisons. PW15 admitted that their laboratory came under administrative control of CBI. Report Ex PW15/A (D23) simply and only finds mention in result of examination that the auditory and voice spectrographic analysis of voice sample marked Q(a) to Q(d), SI(a), SI(b), SII(a) and SII(b) in cassettes marked Q, SI and SII respectively revealed that voice samples marked Q(a) and Q(b) are similar to voice samples marked SI(a) and SI(b) respectively and voice samples marked Q(c) and Q(d) are similar to CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 71/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

voice samples marked SII(a) and SII(b) respectively in respect of their formant frequencies distributions, intonation pattern and other general linguistic and phonetic features. It was concluded in the report Ex PW15/A (D23) that voice samples marked Q(a), Q(b), SI(a) and SI(b) were probable voice of A1 and samples marked Q(c), Q(d), SII(a) and SII(b) were probable voice of A2. Report Ex PW15/A (D23) finds no mention about accuracy of recorded conversations in cassette Ex PX1 (earlier marked Q) or whether or not drop outs, abrupt spikes, pause(s), distortions, continuity and disturbances were existing there. The auditory and voice spectrographic analysis done by PW15 was not annexed with his report Ex PW15/A (D23) to justify and prove his reached conclusions. Even report Ex PW15/A (D23) finds no mention of the copy of cassette having been given on 15/10/2001. The prosecution has not been able to prove that PW15 was a competent expert as on 18/10/2001 in the Science of Voice Identification, Phonetics, Linguistic and Speech and Hearing Science, so as to compare, analyze and opine about the voices contained in cassettes elicited above. Probability of PW15 having given the report Ex PW15/A (D23) as to what suited the case of CBI, under whose administrative control the laboratory of PW15 was, is apparent on the face of record.

65. Possibility of tampering with or erasure of part of tape recorded statement has not been totally excluded but instead is apparent on the face of record on account of repetition of dialogues of serial CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 72/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

number 387, 388, 389, 390 and 391 of transcript Ex PW1/F (D15) at the end of side A of cassette Ex PX1 and also repetition of part of dialogue of serial number 391 of transcript Ex PW1/F (D15) at the start of side B of cassette Ex PX1, which was at the end of side A of said cassette. As per prosecution case, the audio cassette Ex PX1 as primary evidence contained direct recordings of conversations therein of the dialogues interse PW1 and A2, inter se PW1 and A1 recorded with the aid of transmitter. There was no occasion for such repetition of dialogues aforesaid, had Ex PX1 been the primary evidence accordingly wherein there the direct recordings aforesaid were stored. Even PW1 claimed to have taken the seized cassette Ex PX1 at his home, office for a period of one week at which places and also in CBI office he prepared transcript Ex PW1/F (D15). There was every opportunity available with PW1 for tampering with or making additions to or erasure of part of tape recorded conversations in cassette Ex PX1.

66. Accordingly, in view of the law laid in the case of Ram Singh (supra), the tape recorded statements in audio cassette Ex PX1 are not admissible in evidence since firstly, their accuracy has not been proved by satisfactory evidence, direct or circumstantial; secondly, possibility of tampering with or erasure of part of tape recorded statement has not been totally excluded but instead is apparent on the face of record, as elicited in detail hereinabove; thirdly, the fact of preparation of duplicate/copy/investigation copy of audio cassette Ex CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 73/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

PX1 has come under cloud of doubt for no mention of such preparation of duplicate/copy/investigation copy in vital documents Handing Over Memo Ex PW1/E (D3), Recovery Memo Ex PW1/C (D4), Tape Recorder Handing Over Memo Ex PW1/A (D5) and testimonies of material trap witnesses PW1, PW5, PW7 and PW12. The original transmitter and cassette recorder used in the recordings have not been produced. The prosecution cannot take any benefit from the corroborative evidence of tape recorded conversations accordingly.

67. Rough sketch of scene of crime Ex PW14/B (D33) was introduced on record after the application of Holding IO, elicited herein above, which application was disposed off vide order dated 21/02/2014. Ex PW14/B (D33) simply depicts positions of A1 and A2 at the scene of crime i.e., Sainik Farm residence of A1 and the signatures of PW5, PW6, PW7 and IO PW14. Ex PW14/B (D33) neither depicts positions of PW1, independent witnesses nor has signatures of PW1 on it. Position of A1 shown at point A in Ex PW14/B (D33) is in the bedroom and position of A2 at point B is in the drawing room. The bedroom was not the scene of crime. Ex PW14/B (D33) no where mentions of such positions of A1 and A2 to have been noticed by its scribe on entering the Sainik Farm residence of A1. Even Ex PW14/B (D33) does not depict positions of other inmates of said premises, as claimed by prosecution witnesses to be present there nor does it depict as to what was built up in its North, West and South while in East direction CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 74/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

'Kariappa Marg' was depicted. Infact it is the version of prosecution that on entering the premises of Sainik Farm residence of A1, it was noticed that A1 was with his wife in his bedroom. Presence of wife of A1 is no where depicted in Ex PW14/B (D33). Per contra Ex PW14/B (D33) belies the version of prosecution witnesses, as elicited above. Otherwise, there would arise the probability of fabrication of Ex PW14/B (D33) later to trap proceedings of 26/07/2001.

68. Group Captain Rahul Dhar of Directorate of Intelligence Services at Air Headquarters was neither cited nor examined as a prosecution witness despite being the author of letter dated 18/09/2003 (D36) . Accordingly, said letter dated 18/09/2003 (D36) Mark P14/1 stands not proved.

69. To constitute a conspiracy, meeting of minds of two or more persons for doing an illegal act or an act by illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every detail of the conspiracy. Neither is it necessary that every one of the conspirators takes active part in the commission of each and every conspiratorial acts. The agreement amongst the conspirators can be inferred by necessary implication. In most of the cases, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. The existence of conspiracy and its objects are usually deduced from the circumstances of the case and the conduct of CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 75/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

the accused involved in the conspiracy. Criminal conspiracy is an independent offence in the Penal Code. The unlawful agreement is sine qua non for constituting offence under the Penal Code and not an accomplishment. Conspiracy consists of the scheme or adjustment between two or more persons which may be express or implied or partly express or partly implied. Even Section 10 of the Evidence Act introduces the doctrine of agency and if the conditions laid down therein are satisfied, the act done by one is admissible against the co conspirators.

70. In "Shivanarayan v. State of Maharashtra", AIR 1980 SC 439, it was held that "It is manifest that a conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the same. The offence can be only proved largely from the inferences drawn from acts or illegal omission committed by the conspirators in pursuance of a common design."

71. While speaking for the Bench it is held by Hon'ble Mr. Justice P. Venkatarama Reddi in State (NCT of Delhi) vs. Navjot Sandhu, AIR 2005 SC 3820 as follows:

"We do not think that the theory of agency can be extended thus far, that is to say, to find all the conspirators guilty of the actual offences committed in execution of the common design even if such offences were ultimately committed by some of them, without the participation of others. We are of the view that those who committed the offences pursuant to the conspiracy by indulging in various overt acts will be individually liable for those offences in addition to being liable for criminal conspiracy; but, the non CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 76/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

participant conspirators cannot be found guilty of the offence or offences committed by the other conspirators. There is hardly any scope for the application of the principle of agency in order to find the conspirators guilty of a substantive offence not committed by them. Criminal offences and punishments therefor are governed by the statute. The offender will be liable only if he comes within the plain terms of the penal statute. Criminal liability for an offence cannot be fastened by way of analogy or by extension of a common law principle."

72. Call Detail Records (CDRs) of A1 and A2 were obtained by IO PW14 in the course of investigation but were not placed on record nor relied nor proved as PW14 stated that nothing incriminating was found in such CDRs against arraigned accused persons. Audio recordings of meetings of PW1 and A2 outside office of PW1, allegedly recorded by PW1 were neither handed to investigating officer nor produced in the Court nor proved. Excepting the deposition of PW1, there is no primary evidence or circumstantial evidence or scientific evidence proved on record by the prosecution of any meeting of minds of A1 and A2 for doing an illegal act or any conspiratorial act by which any agreement amongst A1 and A2 can be inferred by necessary implication in respect of the offences charged. Best available evidence of audio recordings of meetings of PW1 with A2 outside office of PW1 till June 2001 has been withheld from which inference by necessary implication could have been drawn in respect of any conspiratorial act of A2 in respect of offences charged and withholding of the same per contra has made probable the version of A2 in defence of having acted CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 77/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

as a decoy for PW1 making him entitled for the umbrella of protection under Section 197 of Cr.P.C in terms of the law laid in the cases of M.P Gupta (Supra) and P.K Pradhan (Supra), since at the time of the alleged occurrence of the offence i.e., on 26/07/2001 and before A2 as a Seargant was a public servant. Fact of the matter is that no previous sanction under Section 197 of Cr.P.C for prosecution of A2 in this matter was accorded by the competent authority. Mere leveling of omnibus allegations of conspiracy hatched by A1 and A2 without proving by any cogent evidence, of any overt act attributed to these arraigned accused for their meeting of minds, so as to prove any conspiratorial act of arraigned accused persons does not lead the prosecution any way near proving of charged offences.

73. The best possible evidence which could have been produced by the prosecution and has not been produced is (1) source file of Ex PW1/B (D6); (2) version of Air Commodore H. Masand vide his statement in investigation and then deposition in prosecution evidence in Court, since he was custodian of source file of Ex PW1/B (D6); (3) Call Detail Records (CDRs) of A1 and A2; (4) audio recordings of meetings of PW1 with A2 outside the office of PW1 in the period from February 2001 till June 2001, allegedly recorded by PW1; (5) paid bills of restaurants by PW1 from his own pocket in respect of meetings of PW1 with A2; (6) file of Air Force Authorities containing any record in respect of any briefings of PW1 to PW2 and PW4 in respect of meetings CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 78/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

of PW1 with A2 and A1; (7) admitted writings of A2 in the office of his employer, for comparisons with writings in slip Ex PW2/C (D28) by competent handwriting forensic expert. In the fact of the matter, there is no option but to presume that aforesaid evidences which could have been secured and produced by the investigating agency/prosecution and have not been produced, if were so produced, then would have been unfavourable to the investigating agency/prosecution who withheld it, in terms of Illustration (g) of Section 114 of The Indian Evidence Act, 1872.

74. From every act of the investigating agency what the court expects is the fairness. The search of A1 and A2 as well as the search of Sainik Farm residence of A1 were conducted by the team headed by IO PW14, the then Dy. SP of CBI. No efforts were made to join any witness(es) of locality in the search of A1 and A2 as well as the search of Sainik Farm residence of A1 despite admitted availability of such witness(es) of locality from 7.30 pm of 26/07/2001 till proceedings were completed there. Neither in any document of investigating agency/ prosecution any reason has been assigned for non joining of independent witness(es) of locality in entire sequence of occurrence of facts in the course of investigation nor any such justifiable reason was made vivid in deposition of prosecution witnesses including IO PW14. It is not the case of prosecution that either no such witness of locality was available or on request any such witness of locality refused or on such refusal of request CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 79/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

by such person of locality to witness search and seizure any notice under Section 187 of IPC was served upon such witness in terms of Section 165 (4) of Cr.P.C read with Section 100 (8) of Cr.P.C. In the fact of the matter, non joining of the independent witness(es) of locality in the entire sequence of occurrence of facts in the course of investigation bring into fore the fact that the genesis of the crime is suppressed as no witness(es) from the locality of occurrence whose presence could be natural was joined in the investigation, nor cited nor examined by prosecution, which creates a doubt regarding the truth of the prosecution version. Reliance placed upon the case of State of U.P vs. Madan Mohan and Others, AIR 1989 SC 1519 and Pawan Kumar vs. Delhi Administration, 1989 Cri.L.J 127. In the course of his examination IO PW14 elicited that statement Ex C1 of PW2 under Section 161 Cr.P.C bearing his signatures with date 15/10/2001 was recorded by him which in the end portion find mentions of said PW2 having recognized his signatures interalia on letters of Air Headquarters which were received subsequent to 15/10/2001 i.e., the letters dated 17/10/2001, 23/10/2001 and 05/12/2001. PW14 deposed that infact these letters were shown to PW2 on 05/12/2001 and in answers to Court questions PW14 stated that he recorded the detailed statement Ex C1 under Section 161 Cr.P.C of PW2 on 15/10/2001 but when on 05/12/2001 PW2 had visited his (PW14) office, PW14 showed him aforesaid letters dated 17/10/2001, 23/10/2001 and 05/12/2001 and then instead of recording a fresh supplementary statement to incorporate showing of such letters and CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 80/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

version of PW2 on such letters, PW14 incorporated said facts at the end portion of the statement dated 15/10/2001 on 05/12/2001 and even signed Ex C1 with date 15/10/2001 on 05/12/2001. Fairness of investigation in this case is not apparent from the face of record. Per contra entire discussions hereinabove depict conducted investigation in this case to be premeditated and malafide on face of record.

75. In "Ugar Ahir v. State of Bihar,"AIR 1965 SC 277, it was held that ''It is the duty of the Court to scrutinise the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest.''

76. PW1 admitted in the course of his cross examination that as per Regulation No. 584 of Defence Services Regulations applicable to Air Force, it is duty of every employee of Air Force to bring at once to notice of his immediate superior any case of dishonesty, fraud, which may come to his knowledge. PW1 also elicited that in January 2001 his immediate superior was Group Captain P.P Reddy and next superior officer was Air Commodore H. Masand but he never orally or in writing complained to them that A2 had been approaching him (PW1) for alleged procurement of information, despite the fact that when for the first time A2 contacted PW1 for delivering information, then on that CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 81/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

day PW1 was not having instructions of PW2 and PW4 to not to reveal any communication of A2 to his (PW1) superior or next superior officer or Head of his (PW1) office. Fact of the matter remains that it is admitted case of PW1 to have acted in violation of afore elicited Defence Services Regulation applicable to Air Force. In his cross examination PW1 candidly admitted of having written DO letter Ex PW1/DC to the then Vice Chief of Air Staff with the mention that A1 and A2 had been convicted by Court in this matter. The testimonies of the material witnesses do not find any support or corroboration from documentary evidence on record. Per Contra documentary evidence on record belies the version of these witnesses. Elicited embellishments, improvements, additions, material contradictions, severe infirmities, inherent improbabilities borne out of the testimonies of examined material witnesses including PW1 and IO PW14 in the backdrop of belated reporting of the matter, introduction of colored version, concocted story as a result of deliberation and consultation, have corroded the credibility, reliability, trustworthiness of the material witnesses and hence forth the presented case of prosecution. The witnesses PW5, PW6, PW7 and PW12 accordingly can be classified as neither wholly reliable nor wholly unreliable witnesses as categorized in the case of Vadivelu Thevar v. The State of Madras, AIR 1957 SC 614. The witnesses PW1 and IO PW14 accordingly can be classified as wholly unreliable witnesses as categorized in the case of Vadivelu Thevar (Supra). In the CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 82/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

present set of facts discussed in detail herein before, testimonies of aforesaid material witnesses suffering from elicited severe infirmities, inherent improbabilities and material contradictions going to the root of the matter to check and shake the basic version of the prosecution case cannot be made basis of conviction of accused persons. The prosecution version on the face of record is full of doubts and unworthy of acceptance. From the evidence of prosecution, it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely different from the context and the background against which they are made. The only available course to be made is discard the evidence in toto. The substratum of the prosecution case has several holes which cannot be plugged. No new story can be reconstructed by this Court. The elicited intrinsic circumstances speak volumes against the prosecution case and raise considerable amount of suspicion in mind regarding the complicity of the accused in the commission of alleged offences. The aforesaid infirmities render the prosecution version unacceptable regarding the occurrence. The pieces of incriminating evidence and the evidence of material prosecution witnesses are not reliable, evidence not clinching and the circumstances, so proved, do not form such chain of events, as would permit no conclusion other than one of guilt of accused. Suspicion, howsoever, grave it may be cannot be a substitute for proof. The total effect of entire CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 83/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

material on record introduces possibility of false implication of the accused.

77. In the case of Prem Singh Yadav vs. Central Bureau of Investigation, 178 (2011) DLT 529, it was held that where it is possible to have both the views, one in favor of the prosecution and the other in favor of the accused, the later should prevail. Pronouncements in case of Dilip vs. State of M.P., 1 (2007) CCR 354 (SC) = II (2007) SLT 60 = [2009] 1 SCC 450 and Gagan Kanejia vs. State of Punjab, I (2007) CCR 89 (SC) = IX (2006) SLT 406 = [2006] 13 SCC 516 were relied.

78. Accordingly, I am of the considered opinion that the prosecution has failed to prove its case against accused AVM (Retd.) J.S Kumar (A1) and Sgt. K.C Saini (A2) beyond reasonable doubt. These accused persons are acquitted for the offences charged. Their bail bonds are cancelled. Sureties are discharged.

79. Sum of Rs 50,000/ Ex PN/1 to 100 has not been claimed by anyone. It is directed that after expiry of period of appeal, if no appeal is preferred or in case if appeal is preferred, then subject to decision of the appeal the said sum of Rs 50,000/ Ex PN/1 to 100 be confiscated to State .

CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 84/85 Nirbhay Kumar, the then Dy. SP CBI vs AVM (Retd) Jaswant Singh Kumar & Anr.

80. A copy of judgment be given to the Central Bureau of Investigation.

81. Ahlmad is directed to page and bookmark the file so as to enable digitization of the entire record.

82. File be consigned to record room.

(Gurvinder Pal Singh) Announced in open court Special Judge (PC Act)(CBI)6, today i.e., 29/09/2014 Patiala House Court, New Delhi. Deepika CC No. 11/12 In Re: RC No. DAI/2001/A0052/CBI/ACB/New Delhi 85/85

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Nirbhay Kumar, The Then Dy. Sp Cbi vs Avm (Retd) Jaswant Singh Kumar & Anr. on 29 September, 2014