Delhi District Court
Judgments:-1) Krishna Ram vs . State Of Rajasthan [2009 on 30 January, 2014
IN THE COURT OF SH. M.R. SETHI:
SPECIAL JUDGE-IV, (PC ACT) CBI: DELHI.
CC NO. 04/2012
ID No. 02401R0288812012
CBI
Versus
Parshu Ram
S/o. Shri Ram Bihari Ojha
R/o. Gali No. 8, Chandan Park,
Siras Pur, New Delhi
Second Address:-12/32, B.N.R. Rly Qtrs.
Tikla Para, Howrah, West Bengal ... Accused No.1
Surender Kumar
S/o. Late Shri Jaipal Singh
R/o. B-142, Hastsal Colony,
Uttam Nagar, New Delhi. ... Accused No.2
Case arising out of: FIR No. RC-DAI-2012-A-0012,
ACB, DLI
Date of FIR : 21.02.2012
Date of Institution : 27.06.2012
Date of Final Arguments : 22.01.2014
Date of Judgment : 30.01.2014
CC No. 4/12 Page1 of 65
JUDGMENT:
1 FIR in this case came to be registered on basis of a complaint lodged by one Shri Amit Dagar with CBI. In his said complaint dated 11.04.2012, it was claimed by the complainant Amit Dagar that he was working with his 'Mama' who came to be arrested in some case FIR 161/12 P.S. Uttam Nagar on 07.04.2012 and that the said case was being investigated by S.I. Parshu Ram. The complaint further mentioned that on 08.04.2012 when the complainant met S.I. Parshu Ram, he demanded sum of Rs.10,000/- as bribe for getting released the 'Mama' on bail. The complainant had further claimed that as he did not pay any bribe, his 'Mama' did not get bail on 09.04.2012 and thereafter Parshu Ram was consistently pressurizing him on his mobile for giving bribe. As the complainant did not want to pay any bribe, he filed complaint with CBI.
2 The complaint was accordingly marked for verification to S.I. A.K. Maurya who got the same verified through telephonic conversation between the complainant and Parshu Ram. Thereafter, FIR was registered, pre-trap proceedings conducted, trap laid whereupon the accused Parshu Ram and the co-accused Surender (who received the bribe amount on behalf of Parshu Ram) were arrested. After completion of investigation, Charge Sheet was filed in Court. 3 On basis of allegations against the accused persons, Charges were framed against them on 05.12.2012. A Charge was framed against both the accused persons for having committed offence punishable U/s. 120 B IPC. A CC No. 4/12 Page2 of 65 separate Charge was framed against accused Surender Kumar for having committed an offence punishable U/s. 7 PC Act r/w Section 120 B IPC and a separate Charge against accused Parshu Ram for having committed offences punishable U/s. 7 PC Act as well as U/s. 13(1) (d) punishable U/s. 13(2) PC Act. Both the accused persons pleaded not guilty and claimed trial.
4 In order to prove its allegations against the accused persons, Prosecution examined as many as 15 witnesses. Statements of accused persons were recorded U/s. 313 Cr.P.C. without Oath wherein both claimed that they were innocent and had been falsely implicated. One witness was examined in defence.
5 PW-1 Shri V.B. Ramtek proved Report in respect of hand washes sent to CFSL as Ex.PW-1/A and the Work Sheet as Ex.PW-1/B. He also identified the bottles bearing the washes as being 'Ex.P-1' (RHW) and 'Ex.P-2' (LHW) and also the wrappers 'Ex.P-5' & 'Ex.P-6' respectively. He claimed that the washes gave positive tests for presence of Phenolphthalein in the pink coloured liquids.
After seeking permission from the Court, the witness was cross-examined by ld. PP for CBI wherein he stated that the liquids also gave positive results for presence of Sodium Carbonate.
During course of cross-examination by ld. Counsel for accused, witness claimed that there were four persons working under him in April, 2012 and that they used to assist him. He denied the suggestion that it was they who used to prepare the Report and then explained it to him. He admitted CC No. 4/12 Page3 of 65 that as per record, the date of commencement of examination was 23.04.2012 and that the Report was dated 24.04.2012. He denied the suggestion that the exhibits had infact been checked and tested by his Assistants who then prepared the Report which was only signed by him.
6 PW-2 was the complainant Shri Amit Dagar. He stated about the quarrel which took place on 07.04.2012 wherein his 'Mama' was taken to P.S. Uttam Nagar by I.O. S.I. Parshu Ram. He claimed that he went to P.S. in the evening and met S.I. Parshu Ram who claimed that in case he was paid Rs.15,000/-, no case would be made out against the 'Mama'. Witness further stated that on his refusal to pay Rs. 15,000/-, the accused demanded sum of Rs.10,000/- which too was refused to be paid by the complainant. As per the complainant, a case was made out against his 'Mama' and Parshu Ram claimed that in case he was not paid Rs. 10,000/-, he would not let the 'Mama' come out on bail. Complainant claimed that he returned back home from the P.S. where he was regularly receiving telephone calls from the accused Parshu Ram asking for money for release of 'Mama' on bail and that he kept refusing to pay him with request to reduce the amount. It was claimed that on 10.04.2012, complainant again received a telephone call from Parshu Ram during evening and accordingly on 11.04.2012, he went to CBI Office where he was asked to meet the S.P. whom he met and told him the entire facts. It was claimed that one S.I. Maurya was called who took the witness to another room where one person Avinash was already present. Witness claimed having made a phone call to CC No. 4/12 Page4 of 65 Parshu Ram from his Mobile Phone with the Speaker 'ON' and the conversation was being recorded. He claimed that there were talks regarding money and Parshu Ram asked him to reach the P.S. before 8.00 P.M. and the amount negotiated was Rs.3000/-. Witness claimed that as he was not having Rs.3000/- with him, he again called up Parshu Ram and informed that he would be visiting on 12.04.2012. As per the witness, even the said conversation was recorded. The complaint Ex.PW-2/1 was then claimed to have been written. Witness identified his signature at point 'X' thereupon. He claimed that the recorded conversation was converted into a blank CD which was then sealed and that the entire process was reduced into writing vide document Ex.PW-2/2 on which he identified his signature at point 'X'. Witness claimed that he again went to CBI Office around 10.00 A.M. on 12.04.2012 where he met CBI Officer Pramod Kumar and two other independent witnesses. Pramod Kumar was claimed to have disclosed facts of the case to the two independent witnesses viz. Manish Kumar & Shiv Kumar. He claimed that Avinash also came there and informed all others about proceedings that took place on 11.04.2012. Sum of Rs. 3000/- i.e. 6 currency notes of denomination of Rs.500/- each were claimed to have been handed over to S.I. Maurya and their serial numbers were noted down separately. Thereafter, witness deposed about the demonstration given by S.I. Maurya by applying P. Powder on the currency notes. He further claimed that thereafter before leaving CBI Office, he was asked to make a telephone call to Parshu Ram for confirmation wherein Parshu Ram asked him to reach the P.S. CC No. 4/12 Page5 of 65 within 1 ½ hours. He claimed that the entire process conducted before leaving the CBI Office had been reduced into writing vide document Ex.PW-2/3. He claimed that as they were in a hurry, no CD was prepared regarding the conversation which was last conducted. He claimed that Manish Kumar was deputed to remain with him as a shadow witness and after the trap team reached Uttam Nagar (East) Metro Station, a Tape Recorder was affixed near Belt of his Pant whereafter he alongwith Manish proceeded towards room of Parshu Ram in P.S. Uttam Nagar. He claimed that while Manish remained outside the room, he went inside and after some talks with him, Parshu Ram came out of his room and pointed out towards a 'Panwari' in front of gate of the P.S. and directed him (witness) to hand over money to the 'Panwari'. Witness claimed that he accordingly came out of the P.S. and telephonically informed about it to Pramod Kumar who in turn asked him to reach the Metro Station. As per the witness, when they collected at the Metro Station, the Tape Recorder was taken back from him and was put 'Off'. He claimed that he disclosed about direction given by Parshu Ram and was called upon by CBI Officers to go and hand over money to the Panwari accordingly. He claimed that the Tape Recorder was again attached to his belt and put 'On' whereupon he alongwith the team went towards the 'Panwari'. He claimed that while the shadow witness remained with him, the other team members scattered around the spot. He claimed that he went to the 'Panwari' and handed over money to him and put his phone on Speaker and had a talk with Parshu Ram and made 'Panwari' talk to him. He further CC No. 4/12 Page6 of 65 claimed that he made the 'Panwari' count the money and made him confirm the receipt of money by again having a telephone talk with Parshu Ram with the Speaker 'On'. He further claimed that after 'Panwari' had put the money under his Rack, he himself gave the pre-appointed signal whereupon CBI team reached near the Panwari. He claimed that shadow witness took out money from under the rack and as a large crowd collected there, the Panwari was apprehended and taken to PS Uttam Nagar. CBI team was claimed to have disclosed its identiy to Parshu Ram. The witness further stated about hand washes of the Panwari being taken and regarding sealed pulandas of the bottles in which washes were converted. He claimed that after reaching CBI office the recordings made earlier were converted into CDs and sample voice of Parshu Ram was taken. CDs were claimed to have been seized. All the proceedings were claimed to have been recorded in the document D-4 which was proved as Ex. PW-2/4 and witness identified his signature on the same. He claimed that he again visited CBI office after a few days when the recordings done earlier had been played in his presence and he duly identified his voice and that of Parshu Ram. Witness also claimed having signed the transcripts Ex. PW-2/5 but claimed that the same were not prepared in his presence. Rather, he claimed that he himself had compared the recorded conversation and the already prepared transcripts which matched. Witness further identified the currency notes Ex. P-3 and also identified voices of Avinash Kumar, Shiv Kumar, Manish, Surender, Parshu Ram and his own voice.
CC No. 4/12 Page7 of 65 After seeking permission from the Court, the witness was cross-examined by ld. PP and during course of such cross-examination, he admitted that the money had been taken out from under the Rack by Shiv Kumar and not Manish Kumar. He also admitted that Shiv Kumar and Manish had signed the paper slip and cloth wrapper placed around the bottles containing hand washes. He also admitted having identified voices of Parshu Ram, Panwari and his own voice when he re-visited CBI Office on 24.04.2012 and further admitted that besides Parshu Ram, sample voice of the Panwari had also been recorded.
During course of cross-examination by ld.
Counsels for accused persons, witness claimed having joined business with his 'Mama' about one year back and claimed that he was a partner in the Shuttering work despite no written Partnership Deed having been executed. He claimed that he had first met Parshu Ram on 07th or 08th April, 2012. He could not say whether or not he had ever met him earlier but stated that he might have met Parshu Ram in March, 2012. He claimed that Inderjeet posted in Delhi Police was son of his 'Mausi' having Mobile No. 9212462295. He admitted that a complaint had been received in PS Uttam Nagar on 22.03.2012 against him. He could not say if the complainant therein was Poonam Tyagi. He could not also say if the complaint was marked to S.I. Parshu Ram for inquiry. He denied the suggestion that S.I. Parshu Ram had reached the spot of incident where compromise was effected between him and Poonam. He could not say if Inderjeet too had reached there or had pressurized and made Poonam compromise the CC No. 4/12 Page8 of 65 matter. He specifically claimed that no monetary transaction had taken place in the said settlement between him and Poonam. Due to lack of knowledge, he could not say if the complaint received in P.S. Uttam Nagar on 22.03.2012 was recorded as DD 38A (Mark P-2/D-1). He claimed that no written compromise / settlement had been arrived at between him and complainant Poonam. He denied the suggestion that compromise had been arrived at between them at the spot itself. Due to lack of knowledge, he could not say if on 22.03.2012 Constable Ashok and Inderjeet had made Poonam withdraw her complaint. He denied the suggestion of having taken on loan a sum of Rs.11,000/- in February, 2012 from Poonam Tyagi. When a complaint Mark P-2/D-2 was shown to the witness, he claimed that he had no knowledge about it. He denied the suggestion about having ever been summoned to P.S. Uttam Nagar in connection with the matter of a girl having left her house. He denied the suggestion about any argument having taken place in his presence between Inderjeet and Parshu Ram regarding settlement between him and Poonam. He claimed that he could not say if the bail application of his 'Mama' was dismissed by the Court on 09.04.2012 or if on that date S.I. Parshu Ram had opposed the application. He admitted that his 'Mama' got bail on 12.04.2012 and that accused Parshu Ram had not come to Court on that day. He claimed having taken address of CBI from 'Just Dial' and denied the suggestion about the address having been told to him by Inderjeet. He did not remember the time when he visited CBI Office on 11.04.2012. Witness claimed having mentioned in his complaint Ex.PW-2/1 CC No. 4/12 Page9 of 65 regarding S.I. Parshu Ram having told him that in case he paid him (Parshu Ram) Rs.15,000/-, he (Parshu Ram) would not make out a case against his 'Mama' or that on his refusal to pay Rs.15,000/-, S.I. Parshu Ram demanded a sum of Rs.10,000/- from him. Attention of the witness was drawn to his complaint Ex.PW-2/1 where these facts were not mentioned. Witness claimed that he had met one Saini when he had gone to P.S. Uttam Nagar on 07.04.2012 and that all the talks between him and Parshu Ram took place in presence of the said Saini. He admitted that he did not disclose about presence of Saini in P.S. to the CBI Officers. He claimed that he did not meet SHO P.S. Uttam Nagar to complain about S.I. Parshu Ram. He denied the suggestion that S.I. Parshu Ram had never made any demand of money from him or that he got Parshu Ram falsely implicated due to some grudge. He denied the suggestion that the complaint Ex.PW-2/1 was not written by him or had been dictated by CBI Officers. He claimed having brought the trap amount of Rs.3000/- from his Mami but claimed having not disclosed this fact to CBI Officer. He denied the suggestion that the amount was infact provided to him by CBI from its secret fund. He denied the suggestion that no telephonic conversation took place between him and Parshu Ram from the CBI Office. He specifically claimed that his phone was not seized by CBI nor was the Recorder seized or sealed in his presence. He claimed that the recorded conversation was not converted into CD in his presence and hence he could not tell the procedure adopted in that regard. He denied the suggestion that on 12.04.2012 Inderjeet told him about having already talked to CC No. 4/12 Page10 of 65 Pramod Kumar whom he should meet in CBI Office. He denied the suggestion that no pre-raid proceedings had been conducted in CBI Office or that the document Ex.PW-2/2 was subsequently prepared and his signatures taken on it. He claimed that the vehicle in which he had gone to CBI Office on 12.04.2012 was parked on the main road at a distance of 50
- 60 meters from P.S. Uttam Nagar. He denied the suggestion that S.I. Parshu Ram never came out of his room in P.S. Uttam Nagar or had only directed him to hand over the settlement amount in respect of his dispute with Poonam to the Panwala as was settled. He claimed that he was not aware regarding any complaint having been made by Poonam Tyagi against him on 05.04.2012 at P.S. Uttam Nagar. He claimed that he had not asked the shadow witness Manish Kumar as to why he did not come inside the room of Parshu Ram. He further claimed that CBI Officers too had not made any enquiry from Manish in that regard. Witness denied the suggestion that he had intentionally not taken Manish with him inside the room as he was to manipulate the entire story. He could not say whether or not any customer was present at Shop of the Panwari when he reached there. He specifically denied the suggestion that the money handed over to the Panwari was infact part of settlement amount which had to be paid by him to Poonam. Witness claimed that as the sum of Rs.3000/- was not recovered from under the Rack in his view, he could not say whether or not more money was lying there. No wash of the said place was claimed to have been taken in his presence. He further claimed that the CBI Officers had not asked the Panwari in his presence to take the money to S.I. CC No. 4/12 Page11 of 65 Parshu Ram or hand it over to him claiming that it was the bribe amount. He denied the suggestion that all proceedings were being done in consultation with and on instruction of Inderjeet who was annoyed as Parshu Ram had not helped him despite being a staff member. He further denied the suggestion that even at the time of apprehension, Parshu Ram had claimed that the money belonged to Poonam or he did not have any connection with it. He claimed that names or particulars of none of the public persons who gathered at the spot was recorded in his presence by CBI Officers. He further denied the suggestion that at the time of handing over currency notes to the Panwari, he had informed the Panwari about the same being for Poonam. He admitted that the money recovered was separate from money in Money Box (Galla) of the Panwari but denied the suggestion that it had been kept separate as it belonged to Poonam. He denied the suggestion that the conversation heard in the CD in Court was not the conversation that took place at the spot or that it was tampered with. He further denied the suggestion about having falsely implicated the Panwari in order to falsely implicate Parshu Ram or that he was deposing falsely.
7 PW-3 Dr. Subhrat Kumar Choudhary proved on record his report Ex. PW-3/A in respect of the Compact Disc bearing recordings of conversations of this case. He also identified the CDs and his signatures thereupon. Witness claimed having done auditory and spectographic comparison of the questioned and specimen voices. He further claimed having done Doctorate in Forensic Science and having been awarded National Fellowship in Physical Forensic Science CC No. 4/12 Page12 of 65 from BPR & D. He claimed having undergone training in the field of Forensic Audio / Video Examination and Forensic Speaker Identification.
During course of cross examination by Ld. Counsels for the accused persons witness claimed that Audio Video Tape Authentication was a subject for P hd. He further claimed that in this case he had never asked for the original recording device to be put up before him. He denied the suggestion that there can be no direct recording on a CD. However, he admitted that the CDs examined by him did not contain any direct recording. He further admitted that softwares were available to delete / alter recordings while transferring the same to another device. He admitted that the percentage of spectrographic analysis of the voices was not reflected in his report. He further admitted that transcription of the recording had also been provided to him. He denied the suggestion that his report Ex. PW-3/A was incorrect or had been prepared under instructions from CBI. He further denied that it was biased and motivated or was only based on the transcript. He further denied the suggestion that a different report would have appeared in case the original recording was examined viz. a viz copy of the original. 8 PW-4 Avinash Kumar was the independent witness who allegedly had joined the proceedings on 11.4.2012. He claimed that when he reached the CBI office a digital recorder was produced before him which was played in his presence and nothing was found pre-recorded therein. He claimed that thereafter his introductory voice was recorded and then phone tapping started wherein conversation CC No. 4/12 Page13 of 65 between complainant Amit Dagar and the other person was recorded. He claimed that from the conversation he could gather that it was regarding "Kuch lena dena" in respect of some person who was in custody. He claimed that after the recording was over, a CD was prepared and also some documents which were signed by him. He identified his signature on Ex. PW-2/2 and also on the wrapper Ex. PW-4/A. He claimed that he did not remember having gone to CBI office again in respect of this case.
After seeking permission from the court the witness was cross examined by Ld. PP for CBI wherein he claimed that although his statement was recorded by CBI officer, he could not say if it was recorded on 25.4.2012. He claimed that he could not say if the conversation was in respect of an amount of Rs.3,000/- to be paid by complainant and claimed that he had not so mentioned in his statement to CBI. Attention of witness was duly drawn to his statement Ex. PW-4/B where it was so recorded. Witness claimed having read Ex. PW-2/2 before signing the same and admitted that it was mentioned therein that the conversation revealed that SI Parshu Ram was demanding bribe of Rs.3,000/-. He admitted that as the complainant was not having a sum of Rs.3,000/- with him at that time, he was directed by CBI officials to again call up Parshu Ram and fix the time for 12.4.2012 for making payment. He admitted that the complainant again called up Parshu Ram and that the said conversation too was recorded. He admitted that both the conversations were transferred onto CD (Q-1). He denied the suggestion that the brass seal used on the CD pullanda was handed over to him after use. He CC No. 4/12 Page14 of 65 denied having so stated in his statement to CBI. Attention of witness was duly drawn to his statement Ex. PW-4/B where it was so recorded. He further claimed that although it was so mentioned in Ex. PW-2/2, infact no seal was ever handed over to him. He claimed that he had not raised any objection in this regard after having read the document Ex. PW-2/2. Witness volunteered that although the document was given to him, he only read a part of it and not the entire document. He denied the suggestion that on 12.4.2012 he had again gone to CBI office or had handed over the brass seal to Inspector Pramod Kumar as he himself was proceeding on leave. He claimed that he had not so stated in his statement to CBI officer. Attention of witness was duly drawn to his statement Ex. PW-4/B where it was so recorded. Witness identified his signature on each page of Ex. PW-2/5 and admitted that the dates 24.4.2012 under the signatures was in his handwriting. He claimed that the recorded conversation was heard and then transcript prepared. He also identified his introductory voice in the CD Q1.
During course of cross examination by Ld. Counsels for the accused witness claimed that he had never gone to CBI office in respect of any other case but had visited CBI office in connection with this case on 3 - 4 occasions. He claimed that there were 3 - 4 persons in the room where conversation was recorded on 11.4.2012. He specifically stated that the conversation took place in his presence and was not already in progress when he entered the room. He could not tell the telephone numbers to which call had been made. He admitted that he did not have any talk with the CC No. 4/12 Page15 of 65 complainant Amit Dagar and denied the suggestion that during the talks there was a reference to Poonam Tyagi regarding her having demanded money. He however admitted that during the conversation there had been a reference to some lady. He denied the suggestion that no conversation was recorded in his presence on 11.4.2012 or that he was deposing falsely.
9 PW-5 Shri Madan Vijayan was the Nodal Officer, TATA Tele services. He identified signature of Shri Rajiv Ranjan on Ex. PW-5/A vide which certain documents had been handed over to CBI. He also identified his own signature on letter Ex.PW-5/B and proved on record documents in respect of Mobile No. 9212114295 in the name of Amit Dagar as Ex. PW-5/C and its call details Ex. PW-5/D. Certificate U/s 65 B Evidence Act was proved as Ex. PW-5/D1 and witness identified his signature thereupon. He claimed having issued the certificate in his official capacity being Nodal Officer, Delhi Circle and that the details were produced from Computer system of the company and were true reproduction of the original.
During course of cross examination by Ld. Counsel for the accused witness claimed that he had his seat in the Head Office of the company. He admitted that the main server of Tata Tele Services where the call details were saved was at Hyderabad. He further admitted that as per call details Ex. PW-5/D there had been no telephonic communication between 9212114295 and 9968514130 on 10.4.2012 between 15.55 to 17.06 and on 11.4.2012 between 14.43 to 16.15.
CC No. 4/12 Page16 of 65
10 PW-6 ACP J.K. Gautam was the then SHO, PS
Uttam Nagar and claimed that investigation of case FIR 161/12 PS Uttam Nagar had been marked to SI Parshu Ram who had arrested Hari Om and Ujjawal in the said case. He claimed that during that period SI Parshu Ram was using mobile phone 9968514130.
During course of cross examination by Ld. Counsels for accuseds witness admitted that bail application in case FIR 161/12, PS Uttam Nagar had been opposed by the IO. He identified his signature on Ex. PW-6/DA i.e. reply to the bail application. He claimed that DD 38A dated 22.3.2012 PS Uttam Nagar (Mark P-2/D1) was a PCR call which appears to have been marked to SI Parshu Ram. He claimed that without checking the record he could not say anything about outcome of the same, but perhaps the matter had been compromised.
After seeking permission from the court, the witness was cross examined by Ld. PP and during course of such cross examination witness claimed that outcome of inquiry/ investigation made by concerned official in respect of any complaint, alongwith the concerned documents are submitted by him before the Reader to the SHO after conclusion. He claimed that sometimes the compromises etc. are retained by the officers concerned. He admitted that the compromise Mark P-2/D2 did not bear his endorsement. He denied the suggestion that it was duty of the SHO to pass a final order regarding disposal of any complaint enquired into by any other officer. He denied the suggestion that he had never been informed by SI Parshu Ram regarding any CC No. 4/12 Page17 of 65 compromise having been effected in respect of complaint of Poonam Tyagi or that he was deposing falsely. 11 PW-7 SI Jagdish Chander proved on record copy of FIR 161/2012 PS Uttam Nagar as Ex. PW-7/A. He claimed that the same was marked to SI Parshu Ram and had remained with him till 12.4.2012. Copy of DD 38A dated 22.3.2012, PS Uttam Nagar was proved by the witness as Ex. PW-7/DA.
12 PW-8 Shiv Kumar was one of the independent witnesses who had accompanied the CBI trap team. He claimed that it was on 11.4.2012 that he was informed by his office that he had to report to CBI office on 12.4.2012 and that Shri Manish Kumar, Manoj Kumar and one other person from his office had also been so deputed. He claimed that accordingly he went to CBI office on 12.4.2012. Thereafter, witness deposed about his introduction to the complainant and also about the pre-trap proceedings and identified his signature on Ex. PW-2/3. He claimed that from the CBI office they went near Metro Station, Uttam Nagar where a recorder was attached under shirt of Amit Kumar and Manish and he himself were directed to remain near Amit to hear and observe all the talks regarding handing over of money. He claimed that accordingly all three of them alongwith one CBI Inspector went inside PS Uttam Nagar and while Amit went inside the room of SI Parshu Ram, all of them were asked to remain outside. He claimed that after about 5 minutes Amit came out alongwith SI Parshu Ram and after about 1 - 1 ½ minute Amit went out of the PS all alone. He claimed that they all followed Amit and all went to the Metro Station.
CC No. 4/12 Page18 of 65 Witness further stated that Amit claimed that he had to go to the Panwari as money was to be handed over to him. Witness claimed that Amit did not disclose as to who had asked him to hand over money to the Panwari. He claimed that while Amit proceeded towards the Panwari shop, they all followed and that while Amit went to the Panwari shop, they started taking tea at nearby shop. A Sub Inspector reportedly called them near the Panwari shop after about 10 minutes. The Sub Inspector reportedly slapped the Panwari. He claimed that the Panwari was asked as to where he had kept the money and then he was pulled out from the shop and some money was recovered from a drawer in the shop. Witness claimed that on asking of the SI "Yehi paise hai". He said "yes". He claimed that thereafter they all went to room of Parshu Ram in the PS where a "trunk" belonging to Parshu Ram was searched and his personal search conducted. Hands of the Panwari were claimed to have been washed whereupon water turned pink. He claimed that a CD was prepared of the conversation recorded in the recorder attached under shirt of Amit Kumar after they all had returned back to CBI office. He claimed that CD was sealed, documents prepared and he had signed the same. He claimed having signed the Recovery Memo Ex.PW-2/D in PS Uttam Nagar. Witness claimed that about two weeks thereafter he was again called to CBI office where he signed the document wherein contents of CD conversation were reduced into writing. Witness also identified the case property.
After seeking permission from the court witness CC No. 4/12 Page19 of 65 was cross examined by Ld. PP for CBI wherein he claimed that as he did not remember, he could not say if he had again gone to CBI office or if his statement was recorded by CBI officer. He claimed that the transcript had been typed before he reached CBI office. He further stated that as far as he remembered, the CD had not been played in his presence and only his signature had been obtained on the transcript. Witness further stated that he had met Inspector R.L. Yadav during his subsequent visit to CBI office when Inspector Yadav informed him that all the proceedings that had taken place had been reduced by him into writing and that the witness signed it after seeing the same. He denied the suggestion that his statement was recorded by Inspector Yadav as per his dictation or that he had read and confirmed contents thereof. He claimed that Amit Dagar had not told the CBI officer in his presence regarding Parshu Ram having asked him to deposit the money with the Panwala and that he had not so stated in his statement U/s 161 Cr. P.C. His attention was duly drawn to his statement Mark P-8/A where it was so recorded. He further claimed that it was he who took out money from the drawer in the Panwari shop. He admitted that sample voices of Parshu Ram as well as Surinder Kumar had been recorded. He identified his signature on the site plan Ex. PW-9/A and the arrest memos and personal search memos.
During course of cross examination by Ld. Counsels for the accuseds, witness claimed that besides the present case, he had also joined as a witness in one other CBI case about one year prior to this case. He claimed that CC No. 4/12 Page20 of 65 there were about 10 people in the room in CBI office where he had gone in the morning of 12.4.2012 and that a friend of the complainant was also with him. He denied the suggestion that no pre raid proceedings were conducted in CBI office or that all the documents signed by him had been subsequently signed in CBI office. He further claimed that after the Panwari was apprehended, he was never called upon by CBI officers to proceed and hand over the money to the person concerned. He admitted that name of one Poonam Tyagi did transpire during interrogation of accused Parshu Ram who claimed that the money belonged to her. He further stated that no official of PS Uttam Nagar was called upon to join the proceedings. He denied the suggestion that he was deposing falsely or that there was reference to Poonam Tyagi even at the Panwari shop.
Ld. PP further sought permission to put a leading question to the witness in respect of Poonam Tyagi whose name crept on record during cross examination. After the permission was granted, witness was cross examined by Ld. PP wherein he claimed that initially the accused had kept mum and it was subsequently that he disclosed that the money belonged to Poonam Tyagi. He further claimed that details of Poonam Tyagi had been informed by accused to the IO claiming that some quarrel had taken place and the money was for settlement of the same. He further stated that when he went to R.L. Yadav, he had already typed his (witness's) statement and had only shown it to him. He denied the suggestion that it was at instance of the accused that he had claimed in court regarding accused having claimed that CC No. 4/12 Page21 of 65 money belonged to Poonam Tyagi. He denied the suggestion that he had been won over by the accused.
No further question was put to him by the defence. 13 PW-9 Manish Kumar was the other independent witness who during course of his examination-in-chief claimed that it was on 11.04.2012 that he had gone to CBI Office in connection with the present case. He claimed that he was asked to come again on 12.04.2012 and accordingly he again went there at 9.00 A.M. and nothing happened in his presence till 12:30 P.M. He claimed that they left CBI Office at about 12:40 P.M. and reached Uttam Nagar Metro Station from where they went to P.S. Uttam Nagar. He claimed that after some time and after talks took place there, Shiv Kumar was asked to go inside the Police Station while he was to go in at some distance. Witness claimed having seen Parshu Ram talking to the complainant but could not say as to what talks took place between them. He claimed that he came near Shiv Kumar but had not yet entered building of the P.S. He stated that as they became apprehensive about Parshu Ram having some suspicion on them, Shiv Kumar asked him to go ahead inside the P.S. building while he himself remained outside. He claimed that after going inside the building he kept looking at Shiv Kumar who after some time signaled him to come out and he came out. He claimed that he had not seen anything taking place between the complainant and Parshu Ram and after he came out of P.S. premises alongwith Shiv Kumar, they went to a Tea Stall near shop of Panwari near the P.S. He further stated that after some time CBI Officer went to search the Panwari Shop and also called them. It was CC No. 4/12 Page22 of 65 claimed that Amit Kumar was talking to someone over telephone near the Panwari Shop and thereafter, he handed over money to the Panwari and also asked the Panwari to count the money. It was claimed that after counting money, Panwari kept it under 'Bori' in his Shop. CBI Officers reportedly caught hold off the Panwari and money was got recovered from under the 'Bori'. He claimed that Panwari had his room across the road from the Shop and the room was searched. Witness claimed that all of them then went inside the Police Station to room of Parshu Ram where his Office was searched. He claimed that as far as he remembered, no talks took place there between Parshu Ram and the CBI Officer. Hand washes of Panwari were reportedly taken. Witness stated that all of them then returned back to CBI Office where some paper work was done and was signed by him. He claimed that he was again called to CBI Office by R.L. Yadav to identify recorded voice of Parshu Ram. He claimed that he was not made to hear any recording there but his signatures were obtained on some documents. Witness also identified the Case Property.
After seeking permission from the Court, witness was cross-examined by ld. PP and during course of his such cross-examination, he claimed that he might have gone to R.L. Yadav in CBI Office on or around 24.04.2012. He denied the suggestion that all the proceedings of 12.04.2012 were told to R.L. Yadav by him on 24.04.2012. He specifically denied the suggestion that he had not gone to CBI Office on 11.04.2012 or had gone there only on 12.04.2012 for the first time. He claimed that the currency notes of Rs.3000/- had CC No. 4/12 Page23 of 65 been handed over to CBI Officer by Amit in his presence. Witness admitted all the suggestions of ld. PP in respect of the pre-trap demonstration and proceedings. He claimed that it was Shiv Kumar who was deputed to be near the complainant to observe handing over of money and hear conversation. He denied the suggestion that it was he himself who had been deputed to do so as a shadow witness. He further denied the suggestion that he had been directed to give signal by rubbing his face with both his hands after transaction was over. He denied having so stated in his statement to CBI Officer. Attention of the witness had been drawn to his statement Mark P-9/1 where it was so recorded. He claimed that although he was carrying his Mobile Phone with him on 12.04.2012, he denied the suggestion that the complainant or he himself had been directed to give a miss call to Inspector Pramod Kumar after the transaction was over. Witness admitted that in order to ascertain the place where they all had to go, a telephonic conversation had taken place between the complainant and some other person in CBI Office. He could not say if the complainant had talked to S.I. Parshu Ram or if the spot fixed was P.S. Uttam Nagar. Although he admitted that the conversation was being recorded, he could not say anything about is contents. He denied the suggestion that Amit's telephone was on speaker or that talks could be heard by all. Witness again said that no recording was done in his presence but he had only heard that some conversation had been recorded. He admitted that serial numbers of currency notes shown to him earlier in Court were the same as mentioned in D-3 and that all the CC No. 4/12 Page24 of 65 proceedings of the CBI Office were recorded in it. He claimed that although normally he signs documents after reading and understanding the same, he had not signed the documents in CBI Office after reading the same as there were a bunch of documents got signed and as it was getting late, he only signed the same without reading or going through the documents. He claimed that the demonstration had taken place at about 11.30 A.M. in CBI Office but he could not say if it took 1 to 1½ hours in conducting the demonstration and other proceedings in CBI Office. He claimed having signed D-3 merely on assurance of CBI Officers that whatever had happened was mentioned therein. He claimed that no recording instrument was handed over to Amit in his presence after they had reached Uttam Nagar Metro Station. He claimed that he had not so stated in his statement to CBI. His attention was duly drawn to his statement Mark P-9/1 where it was so recorded. He claimed that at the time when Amit was handing over money to the Panwari, he himself was standing behind Shiv Kumar and CBI officials who were standing alongwith Amit. He claimed that he could not hear the talks that took place between Amit and Panwari. He denied the suggestion about the Panwari having kept the money under the Rack of the Pan Shop and claimed that he had not so stated to CBI. His attention was drawn to statement Mark P-9/1 where it was so recorded. Although he admitted that the complainant had a telephonic conversation with some one and had also made the Panwari talk to him, he could not say if it was Parshu Ram on the other side. He could not say if Shiv Kumar had recovered the bribe amount from the Shop or if he CC No. 4/12 Page25 of 65 alongwith Shiv Kumar had tallied the currency notes from the numbers mentioned in D-3. He claimed that as he did not remember, he could not say if the recorder device was taken back from the complainant after reaching the room in P.S. and switched Off. Witness identified his signature on the Site Plan Ex.PW-9/A and the Recovery Memo Ex.PW-2/D. He claimed that voice sample of Parshu Ram was collected in his presence in CBI Office and claimed that perhaps voice sample of Panwari was also taken. Witness identified his signatures on the CDs and documents. He denied the suggestion regarding any CD having been played in his presence on 24.04.2012 or transcript of recorded conversation having been prepared in his presence. Although he identified his signature on the Transcript Ex.PW-2/5, he denied the suggestion of having signed it after reading the same. He denied the suggestion of having not disclosed true & correct facts in order to save the accused.
During course of cross-examination by ld.
Counsels for the accused persons, witness claimed that he could not say if there was any other person with Amit Kumar on 12.04.2012. He denied the suggestion that no demonstration or pre-trap proceedings were conducted in CBI Office. Trap team was claimed to have left CBI Office in two vehicles. He claimed that he and Amit had travelled in different vehicles. He claimed that nothing had transpired at Panwari's Shop in his presence wherein Panwari claimed that the amount belonged to some Poonam Tyagi. He claimed that there was no reference to Poonam Tyagi in his presence. He further denied the suggestion regarding the Panwari CC No. 4/12 Page26 of 65 having disclosed that the money was for being given to Poonam Tyagi. He claimed that as he was at some distance, he could not hear the conversation between CBI Officers and the Panwari.
14 PW-10 Shri V. Renganathan proved Sanction Order Ex.PW-10/A in respect of accused Parshu Ram.
During course of cross-examination by ld. Counsel for the accused, he claimed that no personal hearing was given to the accused nor antecedents of complainant were got verified. He admitted that a draft proforma for sanction had been sent by CBI but denied the suggestion of having passed the Sanction Order without application of mind. 15 PW-11 Shri Rakesh Soni proved his letter Ex.PW-11/A alongwith call details record of telephone No. 9968514130 for 07.04.2012 to 13.04.2012 as Ex.PW-11/A-1.
During course of cross-examination by ld.
Counsels, witness claimed that call details are preserved in the Server situated at Minto Road Office and that he had no concern with the said Server. He admitted that whatever call details are retrieved from the said Server, same would be available in the Computer in their Exchange and its print out can be taken. He claimed that on receipt of request from CBI regarding the call details, he had not asked the CBI Officers to get the details from the Server at Minto Road as call details are provided by the Exchange itself. The requisite certificate U/s. 65 B Evidence Act was proved by the witness as Ex.PW-11/DA and he identified his signature on the same. He admitted that no such certificate was handed over by him to CBI Officers alongwith his letter Ex.PW-11/A. CC No. 4/12 Page27 of 65 16 PW-12 S.I. A.K. Maurya claimed that on 11.4.2012 a complaint written in Hindi was handed over to him for verification by SSP Shri Ganesh Verma. He claimed that he brought the complainant Shri Dagar to his Chamber and asked him regarding facts of the case. An independent witness was claimed to have been arranged through the Duty Officer and was shown the complaint after he reached the office. The said witness was also claimed to have talked to the complainant. Witness further claimed that the complainant was asked to give telephone call to SI Parshu Ram and prior to that he had procured a DVR from Care Taker in the office. He claimed that the complainant was asked to put his mobile on speaker mode as soon as the bell rang on the other side. He claimed that as soon as the bell rang, he switched on the DVR and the conversation that took place was duly recorded in the DVR wherein it transpired that there was a demand of Rs.3,000/- coming forth from the other side in relation to some bail matter. He further claimed that during course of conversation the complainant was asked to reach the PS at 8.00 PM, but as the complainant reportedly did not have money, he asked the complainant to make another call to SI Parshu Ram who then called the complainant on 12.4.2012. Witness then deposed about conversion of the conversation on a blank audio CD and about preparation of a Memo Ex. PW-2/2 in that regard. Seal used on the CD was reportedly handed over to the independent witness. Witness further claimed that the verification Memo was put up before the SSP and on his direction, FIR was got registered and further investigation marked to Inspector Pramod Kumar. Witness CC No. 4/12 Page28 of 65 also proved the FIR Ex. PW-12/1 and identified signature of SSP Ganesh Verma on the same. Witness also identified his own signatures on the CD Ex. P-4 and the wrapper Ex. PW-4/A. Upon refreshing his memory from the Memo Ex. PW-2/2, witness claimed that the independent witness was Avinash. The witness further disclosed about all the proceedings regarding pre-trap demonstration held on 12.4.2012 and also the trap proceedings.
As the witness could not disclose complete facts, he was permitted to be cross examined by Ld. PP and during course of such cross examination he admitted that the two independent witnesses who joined the trap team on 12.4.2012 were Shiv Kumar Saini and Manish Kumar. He also admitted that it was Shiv Kumar who had touched the currency notes during demonstration and that Manish was the shadow witness. He further admitted that when the trap team had collected around the complainant after he came out of the PS, the complainant had claimed having been asked by Parshu Ram to hand over money to the Paanwala. He further stated that the money was taken out from shop of A-2 by Shiv Kumar and then Shiv Kumar alongwith Manish had tallied the serial numbers of the recovered currency notes from those mentioned in the Memo. He further admitted that sample voices of both the accused persons were separately recorded in the CDs S1 & S2.
During course of cross examination by Ld. Counsels for accused witness claimed that he had been called by the SSP around 2.00-3.00 PM. He claimed that it was not necessary that every public person entering the CBI CC No. 4/12 Page29 of 65 office has to make an entry at the Reception Counter. In this regard, witness claimed that if the person has come to make a complaint, he is not asked anything and is simply directed to the SP to contact him. He further claimed that complaints received in CBI are entered in the CA register or the CO register. Lighter complaints were claimed to be entered in CA register while the serious complaints were mentioned in the CO register. He claimed that the present complaint had been registered as CO 12/12 and entry in that regard was made by the concerned officer. He claimed that he could not say if any relative of the complainant was accompanying him. He further claimed that the DVR in CBI remains in custody and possession of the Care Taker when it is not in use. A register was claimed to be maintained regarding the TLOs to whom the DVR is being issued. He clarified that in case DVR is being used by one officer and is also required by some other officer, the same is handed over to the second officer by the first one without being firstly deposited back with the Care Taker. Witness further stated that he had no knowledge as to whether or not the Care Taker had made any entry regarding the DVR taken by him from the Care Taker. He admitted that the DVR had not been shown to him in court and that he had not converted it into a pullanda nor had he sealed it for safe custody. Witness further stated that it had been on his direction that the complainant had bargained the bribe amount from SI Parshu Ram and scaled it down from Rs.10,000/- to Rs.3,000/-. He admitted that this fact was not recorded in the Verification Memo. He however denied the suggestion that no bargaining took place in that regard or that no verification CC No. 4/12 Page30 of 65 conversation was recorded in CBI office on 11.4.2012 or that no verification proceedings were conducted. He further denied that the complainant never informed him about his not having Rs.3,000/- with him or that thereafter he had called the complainant to make another call. He claimed that both the telephonic conversations of 11.4.2012 were transferred onto the CD at the same time. He claimed that the seal used had the words "CBI" and also contained some year as well as serial number of the seal. He claimed that seal is got issued by an officer from the Malkhana as and when he proceeds for verification and investigation of a case. He admitted that no seal impression was taken on the verification Memo Ex. PW-2/2 and that particulars of the seal were not mentioned in the Memo. He further admitted that no separate document / Memo was prepared regarding handing over of the seal to Avinash Kumar or regarding return thereof. He denied the suggestion that no such seal was infact handed over to Avinash. He admitted about maintaining of a secret fund in CBI but denied the suggestion that the amount of Rs.3,000/- in this case had been taken out from the said secret fund. He further denied the suggestion that no pre-raid proceedings had been conducted in CBI office or that no independent witness had joined the proceedings. Witness further claimed that the trap team had left the CBI office for PS Uttam Nagar in two vehicles but he could not say if one of those belonged to the complainant. He denied the suggestion that one of cousins of the complainant, who was employed in Delhi Police was with the complainant. Vehicles were claimed to have been stopped at a distance of 100-150 meters from PS Uttam CC No. 4/12 Page31 of 65 Nagar. He claimed that the DVR was put "On" and handed over to complainant at the spot itself. Witness claimed that he himself took position outside the police station and that he and Inspector Pramod were at a distance of 20-25 steps from each other but were not static at a point. He further stated that he did not have any direct talk with Inspector Pramod after taking positions and till the Panwari was apprehended. He further claimed that the complainant left for the Panwari shop immediately after informing that he had been directed to hand over money to the Panwari. Witness claimed that he did not remember as to whether or not he had mentioned in his statement U/s 161 Cr. P.C. that the Panwala claimed having taken the money as he had been directed by SI Parshu Ram to accept the same. Attention of the witness was duly drawn to his statement Mark P-12/DA where it was not so recorded. He denied the suggestion that after apprehension, Panwala had claimed that the money belonged to some lady who had to be given the said amount by Amit Dagar and that he had accepted the same on behalf of the lady. He claimed that they had remained at the Panwala's shop for about 4-5 minutes before he was taken to the PS. He further claimed that SHO had been informed about CBI team having reached the PS. He denied the suggestion that no hand washes were taken in room of SI Parshu Ram. He further stated that in his presence, Inspector Pramod had not asked the Panwala to hand over Rs.3,000/- to SI Parshu Ram, having collected the same on his behalf. He further claimed that he could not say if he had mentioned in his statement U/s 161 Cr. P.C. about Inspector Anand Swaroop having challenged SI Parshu Ram CC No. 4/12 Page32 of 65 or having disclosed that the trap team was from CBI and that the Panwala had been arrested for having taken bribe amount on his (SI Parshu Ram) behalf. His attention was drawn to his statement Mark P-12/DA where it was not so recorded. Witness claimed having signed the Recovery Memo in CBI office at about 8.00 PM after CBI team had returned back to the office at around 6.00-6.30 PM. He denied the suggestion that no proceedings took place at Panwala shop or at PS Uttam Nagar. He further denied the suggestion that the accused persons had been falsely implicated in this case or that during course of his testimony, he himself had deliberately made improvements or had only accepted the suggestions put forward by Ld. PP. He further denied the suggestion that A-2 was falsely implicated with sole motive to falsely implicate A-1 or that he had been made a tool in this case. He denied the suggestion that he was deposing falsely.
17 PW-13 Inspector Pramod Kumar was the Investigating Officer of the case and during course of his examination in chief, he reiterated allegations of prosecution against the accused persons. He claimed having directed the Duty Officer on 11.4.2012 itself to arrange two independent witnesses to join the raiding party on 12.4.2012. Witness identified the case property and also identified his signatures on the documents / articles.
During course of cross examination by Ld counsels for accused persons witness claimed that it was around 7.00 PM on 11.04.2012 that he had been informed about being appointed TLO of this case. He further claimed CC No. 4/12 Page33 of 65 that no memo had been prepared in respect of articles / documents handed over to him by SI A.K. Maurya. The same were claimed to have been handed over at about 7.15 PM. He further claimed that after the CD 'Q1' was handed over to him by SI Maurya, he himself had retained the same and had not handed it over to the SP or any other Senior Officer nor had deposited the same in the malkhana. Verbal instructions were claimed to have been given to the DO for arranging two independent witnesses for 12.04.2012. He denied the suggestion that the CD was never handed over to him on 11.04.2012 or that he came to be associated with this case only with effect from 12.04.2012. Witness claimed that he could not say if the conversation contained in 'Q1' still existed in the DVR when it was handed over to him for further use. He claimed that the conversation existed in the DVR when it was played on 11.04.2012, but he had not played it again after it was handed over to him. He further claimed that the DVR had an inbuilt memory and that he had not made any request to his Senior Officers for preserving the DVR for future court use. He denied the suggestion that no negotiation regarding reducing the bribe amount from Rs. 10,000/- to Rs. 3,000/- was reflected in the conversation contained in 'Q1'. Witness denied the suggestion of having proceeded with the trap of this case on basis of a false complaint. He further claimed that no memo was prepared on 12.04.2012 regarding Avinash having handed back the seal to him. It was claimed that in CBI, seals were not issued to individual officers but were got issued by officers from the malkhana as and when required in a particular case. He could not say as to what was the serial CC No. 4/12 Page34 of 65 number on the seal used in this case. He further claimed that he had not affixed the seal impression on any of the documents prepared by him. While admitting that the recovery memo mentioned about the fascimile of CBI seal being embossed on each page of the memo, witness admitted that no seal impression appeared on any of the pages of the memo. He denied the suggestion that a common seal of CBI exists which is used by all the investigating officers, as and when required in different cases. He further admitted that on 12.04.2012 Amit Dagar was accompanied by person who probably was his friend, but had not been joined in any of the proceedings conducted. Witness could not say if the said person was Inderjeet who resided in Mohan Garden, Uttam Nagar or was employed in Delhi Police. While admitting about maintenance of a secret fund in CBI, witness denied the suggestion that the trap money used in this case had been taken out from the said fund. He also denied the suggestion that no pre raid demonstration or any other proceeding had been conducted on 12.04.2012 in CBI Office. The trap team was claimed to have left the CBI office in two vehicles. He claimed that he along with A.K. Maurya, Manish and the complainant were travelling in one vehicle whose description he did not remember. He further denied the suggestion that the person who had come with the complainant accompanied them during trap proceedings. He denied the suggestion that he never intended Manish to go inside the PS being aware that there was no demand of bribe to be made by the accused Parshuram. He further claimed that after the complainant came out of the PS and before he left for the paanwala shop, CC No. 4/12 Page35 of 65 the complainant had remained with the trap team for about 5 to 7 minutes and that no audio recording was done of the conversation that took place during that period. While admitting having had a telephone talk with Additional SP Sh. Ravi Gambir regarding Parshuram having not taken any money or desiring it to be handed over to the paanwala and regarding change of plan, witness claimed that he did not tell the IO about his said conversation. He claimed that he could not say whether or not he had mentioned in his statement to the IO that after reaching near the paanwala, complainant handed over currency notes to him claiming that the same had been sent by Parshuram. Attention of witness was drawn to his statement Mark PW13/DA where the fact was not so recorded. Witness denied the suggestion about there being any reference to one Poonam Tyagi at the time of apprehension of the paanwala and denied the suggestion regarding the paanwala having claimed that the money was meant to be handed over to Poonam Tyagi towards some settlement and was not bribe money. He admitted that none of the people who collected at the shop were called upon to join the proceedings. While admitting that the search memo, arrest memo and site plan were prepared in PS Uttam Nagar, witness admitted that signatures of the SHO or any other officials of the PS had not been obtained on the said documents. He admitted that no document related to recovery of money from paanwala's shop was prepared at his shop nor was it prepared in the PS. Witness denied the suggestion that the CD containing conversation was subsequently manipulated to falsely implicate the accused persons. He also CC No. 4/12 Page36 of 65 denied the suggestion that factum of the recovered money being settlement amount payable to Poonam Tyagi had been so disclosed to him by Parshuram or that he had intentionally avoided to bring the said fact on record. While claiming all the currency notes were of the same denomination, witness admitted that the handing over memo mentioned about the GC notes being of different denomination. He claimed having read the memo before signing it. He denied having falsely implicated the accused persons at instance of one Ct. Inderjeet who was cousin brother of the complainant Amit Dagar. Witness admitted that accused Surender of his own had not demanded any bribe money from the complainant or that the money handed over to him was trust money for being handed over to Poonam Tyagi or was so accepted by him. 18 PW 14 Sh. Naim Aktar proved on record documents in respect of mobile connection No. 9968514130. He proved the application form as Ex. PW 14/1 and the attached copy of DL as Ex. PW 14/2. He identified signatures of the Deputy Manager (Records) Sh. A.S Verma on the same and claimed that he could identify his writing and signatures having seen Sh. Verma write and sign during course of his service and that Sh. Verma had since retired. 19 PW 15 Inspector R.L. Yadav was Investigating Officer of this case to whom investigation was transferred on 19.4.2012. He claimed having recorded statements of various witnesses, having collected documents from various authorities, having received CFSL report in respect of washes and having sent the recorded conversations and sample voices to CFSL for comparison and having collected the CC No. 4/12 Page37 of 65 report, got prepared the transcript and obtained sanction for prosecution of accused Parshu Ram. Statements of various witnesses recorded by him U/s 161 Cr. P.C. were inter-alia proved as Ex. PW-15/A1 to A-5. Witness also identified his signatures on various documents. He claimed that after completing investigation, charge sheet was filed in court.
During course of cross examination by Ld. Counsels for accuseds, witness claimed that although taking over documents had been prepared when investigation was transferred from Inspector Pramod to him, the said "taking over documents" do not form part of the charge sheet. He further claimed that the recording device remains in custody of the Care Taking Section in office of CBI and that during course of his investigation he did not collect any documentary evidence in respect of the officer who might have received the recording instrument on the date of incident or the date of verification nor as to when the instrument was returned back. He claimed that he had not investigated as to whether the said device had any inbuilt memory or if any cassette had to be inserted in it for recording of conversation. He further claimed that he could not say as to who wrote the transcripts which formed part of D-11. He denied the suggestion that signatures of witnesses were taken on the transcript which was already prepared and was not prepared in their presence. He further denied the suggestion that he had not properly recorded statements of witnesses U/s 161 Cr. P.C. He denied the suggestion that he was deposing falsely or had not investigated the matter properly.
20 As no other witness was examined on behalf of
CC No. 4/12 Page38 of 65
prosecution, prosecution evidence was closed and thereafter statements of accuseds were recorded.
21 During course of his statement recorded U/s 313 Cr. P.C., it was claimed by accused Parshu Ram that prior to registration of FIR 161/12, PS Uttam Nagar, a complaint made by one Poonam Tyagi against one Amit Dagar had been marked to him and the matter was settled between the two. He claimed that as part of the compromise, Amit Dagar had agreed to pay sum of Rs.10,000/- to Poonam Tyagi and a compromise application in this regard had been submitted to him by her. He further claimed that Amit Dagar had agreed to deposit the compromise amount with Panwari Surender Kumar in installments till finalization of the compromise and that the sum of Rs.3,000/- handed over by him to Surender was infact an installment in that regard and not any bribe amount. He claimed that he himself had neither demanded nor had he negotiated any bribe amount from Amit. It was further claimed that in the case of Poonam Tyagi and also that of Hari Om, the complainant of this case i.e. Amit had approached him through one of his cousins Ct Inderjeet of Delhi Police, but as he himself did not pay any heed to Ct. Inderjeet, complainant got him falsely implicated in this case. 22 Accused Surender also claimed that the sum of Rs.3,000/- handed over to him by Amit Dagar on 12.4.2012 was part of the compromise amount and not any bribe amount received by him on behalf of Parshu Ram. He claimed that the compromise amount of Rs.10,000/- settled between Poonam Tyagi and Amit used to be deposited with him in installments by the complainant (Amit).
CC No. 4/12 Page39 of 65
23 Both the accused persons desired to lead defence
evidence and infact examined DW-1 Ms. Poonam Tyagi in defence. Witness claimed that in the month of February, 2012, one Amit of Balaji Properties took loan from her in sum of Rs.11,000/- for about 7 - 10 days and when he did not return it back, she asked about return of the loan on two or three occasions but Amit failed to give any satisfactory reply. She further claimed that on a Thursday, in the month of March, Amit snatched Mobile Phone of her son whereupon her son called her from Amit's phone informing about his having snatched the phone. Witness claimed that she went there and asked Amit about it, who started misbehaving with her. She further claimed that as Amit continued to threaten her, she called up No. 100 whereupon S.I. Parshu Ram came there and they all went to P.S. Uttam Nagar. 'Mama' of Amit i.e. Hari Om and one Inderjeet were also claimed to have reached the Police Station where talks were held and it was decided that both of them would get her money returned back whereupon she would withdraw her complaint. She further stated that she was on visiting terms in the P.S. and as she did not want to confront Amit again, it had been decided that the money would be handed over to Surender Kumar Panwari by Amit and she would take it from Surender. Witness further claimed that even thereafter her money was not returned back and hence she filed yet another complaint in the P.S. in the month of March, 2012. She claimed that she again went to the P.S. after about 10 days and she came to know all that had happened with Parshu Ram. Witness identified her signature on document Mark 'P-2/D-2' claiming that it was the CC No. 4/12 Page40 of 65 complaint given by her during the first incident. She also identified her signature on complaint dated 05.04.2012 i.e. Ex.DW-1/A. She claimed that as so much had happened over sum of Rs.11,000/-, she did not take any further action in the matter nor did she receive back her money.
During course of cross-examination by ld. PP for CBI, witness claimed that she was running NGO 'Mahila Shakti Jan Jagriti Manch' since 16.09.2008 as its President. She claimed that the NGO was registered at her residential address and its Office was at a distance of about 2 -3 Kms. from P.S. Uttam Nagar. She also claimed that she used to meet Police Officials in the P.S. and that complaints used to be filed by the NGO in the P.S. from time to time. She admitted that there was no receipt of any Police Officer on Ex.DW-1/A. She denied the suggestion that the said complaint was anti - dated or was a false complaint. She further stated that after it had been decided in the P.S. that loan amount would be handed over to Panwari, she did not meet Amit thereafter. She admitted that it was mentioned in Ex.DW-1/A that she had gone to house of Amit on 05.04.2012 seeking return of her money. She denied the suggestion that factum of the loan amount being handed over to Surender for being given to her had been wrongly stated by her in Court and was wrongly mentioned in Ex.DW-1/A. She further denied the suggestion that no incident as claimed ever took place or that she was deposing falsely at instance of accused Parshu Ram. She claimed that she knew Surender for the past about 6 - 7 years as she often used to make calls from his STD Booth and also used to obtain change of currency CC No. 4/12 Page41 of 65 from him. She further claimed that she had tried to contact Parshu Ram on 2 - 3 occasions to request him to secure back her loan amount from Amit, but nothing effective took place. It was claimed that Parshu Ram had claimed being in Court and that he would talk to her after returning back to the P.S. She claimed the said talks to have taken place towards end of April, 2012. She denied the suggestion that her son had not given any call to her from Mobile Phone of Amit. She could not tell dimensions of the Shop of Surender. She further admitted that she had not received any summon for appearance in Court but was personally informed by Parshu Ram in that regard. She claimed that she had never contacted Surender for enquiry regarding return of her money but had only made enquiries from Parshu Ram. She claimed that it was during last week of April/ first week of May that she was informed by Parshu Ram that she would be informed as and when money comes. She denied the suggestion that she was deposing falsely at instance of accused persons. She claimed that Surender had not visited the P.S. in her presence when the first complaint was made.
24 No other defence witness was examined by the accused persons and accordingly defence evidence was closed. Arguments were advanced by both sides. 25 During course of his submission, it was submitted by ld. PP that in this case receipt of the Phenolphthalein Powder treated currency notes by A-2 Surender and recovery thereof from his 'Khoka' was not in dispute as A-2 has admitted the said fact. It was further submitted that no explanation whatsoever was given by A-2 at the time of CC No. 4/12 Page42 of 65 recovery nor any explanation regarding the money recovered was given by A-1 at the time of his apprehension. While referring to the complaint, testimony of the complainant (PW-2 Amit Dagar) and the Transcripts of conversations, it was submitted by ld. PP that A-1 had raised a demand to facilitate grant of bail to 'Mama' of the complainant and the amount came to be settled at Rs.3000/- although the initial demand was Rs.10,000/-. It was submitted that the Transcript of recording Q-1 referred to the initial demand. It was also submitted that as acceptance and recovery of the currency notes was not disputed, a presumption can be raised against the accused persons U/s. 20 PC Act and the said presumption has not been rebutted by the accused persons as only vague & belated explanation has been given in this regard by the accused persons. While on this, it was pointed out that the belated defence of the money belonging to one Poonam Tyagi was belied as her name did not appear even once during course of conversation between complainant and the accused persons as is reflected in the Transcript. As per ld. PP, DW-1 Ms. Poonam Tyagi was not a summoned witness, was well-known to both the accused persons since long and had appeared in Court at instance of the accused persons. It was further pointed out that there had been no incident as alleged by DW-1 nor any settlement had taken place between her and the complainant under which sum of Rs.3000/- had been handed over to A-2 on behalf of A-1. It was submitted that infact A-1 & A-2 were acting in conspiracy with each other and A-2 had merely received the bribe amount from the complainant with a view to pass it on to A-1.
CC No. 4/12 Page43 of 65 Falsity of claim of DW-1 regarding her having talks with A-1 was stated to be writ large in her testimony in as much as she had claimed having talked to accused during the last week of April/first week of May, 2012 whereas A-1 was released on bail after 14.5.2012. Reference was also made to the call details on record to fortify the submissions that A-1 used to contact the complainant time and again for seeking the bribe amount. It was claimed that prosecution has duly proved its case to the hilt.
26 Ld. Counsel for A-1 during course of his submission submitted that for Prosecution to succeed in a trap case, it was essential that it proves demand, verification, pre- raid proceedings, conversation at the spot, acceptance (conscious or otherwise), that the amount was received as bribe and recovery thereof. As per ld. Counsel, Prosecution has miserably failed to prove on record that the money handed over to A-2 by the complainant was infact bribe amount paid to A-2 for and on behalf of A-1. It was further submitted that Prosecution has failed to prove on record any demand of bribe having been made by A-1. While referring to the complaint and statement of complainant, it was submitted that as per allegation, A-1 had been regularly calling the complainant on Mobile to pressurize him to pay the bribe amount. It was pointed out that this claim was belied on perusal of the call details of complainant placed on record. It was specifically pointed out that no call had been made by A-1 to the complainant on 10.04.2012 as was being claimed in this case. It was further pointed out by ld. Counsel that the original DVR which allegedly contained the original recording CC No. 4/12 Page44 of 65 of conversation, had never been produced for perusal of the Court and that the alleged copy of conversation contained in the cassette could not form sole basis for convicting the accused. In this regard, ld. Counsel referred to Ex.PW-15/B i.e. letter from S.P., CBI to Director, CFSL and submitted that the letter authorized CFSL to remove portions or to take the articles into pieces if found necessary for the purpose of examination. It was further submitted that as the original DVR was never produced before CFSL or this Court, it cannot be said that copy of recording made from DVR onto the CDs contained complete unedited/untampered conversation. Doubts were raised on truthfulness of the story put-forth by the Investigating Agency by ld. Counsel while submitting that there was no explanation on record as to why the alleged shadow witness Manish did not enter room of accused Parshu Ram in the P.S. despite directions to that effect and as to why he was not asked about it by the TLO. It was also submitted that the Investigating Agency was silent as to why the Recorder was put 'Off' when the complainant returned back to Metro Station from the P.S. Yet another point submitted by ld. Counsel was as to why no question had been put to A-2 by the TLO qua his having taken money on behalf of A-1 and no question had been put to A-1 regarding A-2 having taken money on his behalf. While referring to the Transcript, it was submitted that the Transcript allegedly mentioned about A-2 talking to one 'Krishna' and not to the complainant. It was also submitted that as per case of prosecution the CDs had been converted into Pullandas and sealed and then the seal was handed over to PW-4 Avinash Kumar. While referring to CC No. 4/12 Page45 of 65 testimony of Avinash Kumar, it was submitted that he had specifically claimed that no seal infact was handed over to him. He had denied suggestion to the contrary. This, it was claimed, fortified submission that the CD had been tampered with. It was further submitted by ld. Counsel that as per PW-12 SI A.K. Maurya, the word CBI alongwith year of issue is mentioned on all the seals alongwith serial number. In this regard it was submitted that although the incident in this case took place in the month of April, 2012, as per Ex. PW-13/1 (D-10), the seal used was "CBI ACB ND 30-2011". It was also submitted that no description of seal had been mentioned in Ex. PW-15/B (D-12) except for "CBI seal". It was claimed that identity of the seal and its sanctity were in doubt. While challenging genuineness of case of prosecution, it was submitted that although case of prosecution was to the effect that PW-9 Manish was deputed as shadow witness in this case, the witness during course of testimony in court has denied any suggestion to that effect. It was also submitted by Ld. Counsel that surprisingly in this case, the complainant, both the independent witnesses, TLO and IO have all been cross examined by Ld. PP for CBI at one stage or the other and that genuineness of the Recovery Memo was put in doubt in as much as it was mentioned in the Memo that facsimile of CBI seal had been affixed on each page of the Memo while there was none on any of the pages. Various contradictions between testimonies of prosecution witnesses were also pointed out by Ld counsel. Ld. Counsel concluded his arguments by submitting that the complainant had a grudge against A-1 as A-1 had not facilitated "bail" of Mama of the CC No. 4/12 Page46 of 65 complainant and hence complainant got A-1 falsely implicated in this case and made A-2 a scapegoat. It was further submitted that as per settled law, accused was only required to probablise his defence and not to prove the same to the hilt as prosecution had to prove its case. It was also pointed out by Ld. Counsel that till date CFSL CBI had not been notified by the Central Government as an Examiner of Electronic Evidence in terms of Section 79 (A) of the I.T. Act, 2000. 27 Ld. Counsel for A-2 while adopting the arguments advanced by Ld. Counsel for A-1 submitted that link evidence was missing in this case. It was submitted that prosecution had not brought on record anything to connect A-2 with A-1 or regarding A-2 having accepted the "bribe amount" for and on behalf of A-1.
28 In his reply arguments, it was submitted by Ld. PP that palpably false defence was sought to be put forward by the accused persons in this case. It was claimed that there was no evidence whatsoever on record regarding the complainant being enimical towards the accused. Moreover, it was submitted that in terms of Section 106 of the Evidence Act, fact specially with knowledge of accused had to be proved by the accused and that burden of proving the said fact was upon the accused. Ld. PP concluded his submissions by submitting that testimony of the TLO, the complainant and the corroborative testimonies of the independent witnesses had proved case of the prosecution beyond reasonable shadow of doubt and rather to the hilt and that the accused persons were liable to be convicted. It was further submitted that there was an implicit acceptance of CC No. 4/12 Page47 of 65 bribe amount by A-1 in pursuance to demand made by him and actual acceptance of bribe amount by A-2. 29 While ld. PP for CBI placed reliance on following judgments:-1) Krishna Ram Vs. State of Rajasthan [2009 Crl. L.J. 2436 (SC)] 2) CBI Vs. G. Premraj [AIR 2010 SC-793 (SC)] 3) T. Shankar Prasad Vs. State of A.P. [AIR 2004 SC 1242 (SC)] 4) State of Madhya Pradesh Vs. Ram Singh [2000 Crl. L.J. 1401 (SC)] 5) Karan Singh Vs. State of Haryana [2013 (5) LRC 75 (SC)] 6) Musa Singh Vs. State [2013 (6) LRC 267 (Delhi High Court) 7) Gangabhavani Vs. R.P. Reddy [2013(7) LRC 77 (SC)] 8) S.K.S. Gupta Vs. State of Maharashtra [VIII (2010) SCT 185] 9) State of U.P. Vs. Zakaullah [1998 Crl.L.J. 863 (SC)]
10) Parmod Kumar Vs. State [AIR 2013 SC 3344] 11) Ritesh Sinha Vs. State of U.P. [2013 Crl.L.J. 1301] 12) Sucha Singh & Others Vs. State of Punjab [2003 Crl.L.J. 3876] 13) Bishnu Parsad Vs. State of Assam [2007 Crl.L.J. 1145 (SC).
30 Ld. Counsel for accused persons on the other hand placed reliance on :- 1) Shridhar Namdeo Lawand Vs. State of Maharashtra [2013 (6) LRC 154 (SC)] 2) Rakesh Kapoor Vs. State of Himachal Pradesh [2013(3) LRC 244 (SC)] 3) Hem Chander Vs. State of Delhi [2013 (6) LRC 338 (Del)] 4) T. Subramaniam Vs. State of TN [2006 Crl. L.J. 804] 5) State of Rajasthan Vs. Mohan Lal [2009 RCR (Crl.) 812] 6) Subash Parbat Sonvane Vs. State of Gujarat [2002 Crl.L.J. 2787] 7) Bhola Ram Kushwaha Vs. State of Madhya Pradesh [2001 Crl.L.J. 116] 8) Chander Bhan Vs. State/CBI [1998(2)JCC (Delhi) 69] 9) Mahmoobkhan CC No. 4/12 Page48 of 65 Pathan Vs. State of Maharashtra [AIR 1998 (2360)] 10) Virendranath Vs. State of Maharashtra [AIR 1996 (490)
11) M.S. Ramanathan Vs. State/CBI Madras [1996 Crl.L.J. 2273] 12) Sadashiv Mahadeo Yavaluje & G.S. Salokhe Vs. State of Maharashtra [JT 1989 (4) S.C. 569] 13) Anand Sarup Vs. the State [1996 Cri.L.J. 756] 14) Darshan Lal Vs. The Delhi Administration [1974 (3) SCC 595] 15) Sat Pal Vs. Delhi Administration [AIR 1976 Supreme Court 294] 16) Sukhvinder Singh & Others Vs. State of Punjab [(1994) 5 Supreme Court Cases 152] 17) Nilesh Dinkar Paradkar Vs. State of Maharashtra [III (2011) SLT 35 Supreme Court Cases] 18) Tukaram S. Dighole Vs. Manikrao Shivaji Kokate [AIR 2010 Supreme Court 965]
19) Sunil Kumar Sambhudayal Gupta & Others Vs. State of Maharashtra [2011 (1) RCR Criminal] 20) Dwijadas Banberjee & etc. Vs. State of West Bengal [2005 Cri.L.J. 3151 Criminal] 21) Vijay Singh Vs. State of M.P. [2005 Cri. L.J. 299] 22) State of Rajasthan Vs. Bhawani & Anr. [2003 Cri.L.J. 3857] 23) Rakesh Kumar Vs. State [2004 (1) JCC 110] 24) Anil Sharma & Others Vs. State of Jharkhand [2004 (3) RCR Criminal 25) Rakesh Bishth etc. Vs. CBI [2007 Cri.L.J. 1530] 31 This Court has given thoughtful consideration to arguments advanced on both sides and has also perused the records and the judgments cited at the Bar.
32 It is often said that bribery is a crime of giving a benefit in order to influence the judgment or conduct of a person in a position of trust and that giving/ taking of bribe is with intent to influence the recipient's official behavior.
CC No. 4/12 Page49 of 65
33 In view of peculiar facts and circumstances of
present case wherein acceptance of sum of Rs.3,000/- from the complainant has been admitted by A-2 Surinder Kumar and recovery of the said amount from his Khokha is also not in dispute, any discussion about pre-trap proceedings would, in considered opinion of this court be futile. Also not in dispute is the fact that hand-wash of A-2 had been taken and the solution turned pink. In that view of matter, the only point that remains for consideration in this case is as to whether the sum of Rs.3,000/- handed over by complainant to A-2 was bribe amount given to A-2 for and on behalf of A-1 (as prosecution wants this court to believe) or the said amount was the settlement amount payable by the complainant to Poonam Tyagi towards settlement of their dispute (as the accused wants this court to believe).
34 First of all, let us deal with the case of A-2 Surinder Kumar. In Virendra Nath's case (Supra) where the amount was received by a person not for himself but on behalf of another person, while acquitting him, it was observed by Hon'ble Supreme Court of India that there was considerable merit in the contention raised on his behalf that he had received the money innocently from the complainant without realising that it was bribe money. It had further been observed that prosecution had nowhere led any other evidence of conduct or consistency of a behaviour from which it could be spelled out that A-2 (recipient) was a habitual go between in facilitating acceptance of bribe by A-1. While acquitting the recipient, it was held that there existed an area of doubt, benefit of which goes to A-2.
CC No. 4/12 Page50 of 65
35 In similar circumstances, in the case of Sadashiv
Mahadeo (Supra), it had been observed that in absence of any evidence to the contrary it could not be held that the recipient was guilty of any offence unless it was established that he too was a party to the arrangement of the bribe being handed over to him for being passed on to the other accused. Like in that case, there is no evidence on record of the presnt case to show that A-2 had any knowledge about any alleged settlement between the complainant and A-1 nor is there any allegation much less any evidence on record to show that he accepted the money knowing it to be bribe amount for being passed on to A-1.
36 Now let us have a look at the case from the angle of accused No.1 Parshu Ram. In order to appreciate case of prosecution against the accused, it would be beneficial to go through facts of the case from the initial stage. As per complaint (Ex. PW-2/1) lodged by the complainant, first demand had allegedly been made by Parshu Ram on 7.4.2012. It had further been alleged in the complaint filed on 11.4.2012 that ever since 9.4.2012, accused was regularly calling up the complainant through mobile asking for the bribe amount. Reference to the call details (Ex. PW-5/D) in this regard would show that there was no telephonic communication from the side of accused to the complainant between 9.4.2012 to 12.4.2012 when the trap was laid. In that view of matter, allegation made by the complainant in the complaint apparently got belied by the CDR on record. In this regard, it would also be pertinent to refer to testimony of the complainant when he was examined as PW-2 in court. During CC No. 4/12 Page51 of 65 course of his examination in chief he had specifically claimed that the first demand was made on 7.4.2012 and that on 10.4.2012 he had again received telephone call from Parshu Ram during evening hours where after he went to CBI office to lodge complaint on 11.4.2012. As already mentioned herein-above there does not appear to be any call made to complainant by A-1 on 10.4.2012. It would be beneficial to refer to cross examination of the complainant conducted on 1.3.2013 wherein he had claimed that he was confused as to whether Parshu Ram called him on 10.4. or 9.4. No explanation whatsoever was given by the complainant in not approaching CBI from 7.4.2012 to 11.4.2012 when he came to lodge his complaint. It was observed in Rao Sahib Vs. State of Maharashtra [1996 (2) Crimes Page 800] that where the alleged demand was made on 7.4.1987 and complainant wanted to make a complaint in that behalf but made the complaint on 13.10.1987 without explaining why he had kept silent during that period, the conduct of the complainant in keeping silence was a circumstance suggesting improbability in his version.
37 Complainant during course of his testimony in court had claimed that after coming out of the police station he telephonically informed Inspector Pramod that he had been asked to hand over money to the Panwari. As per Recovery Memo Ex. PW-2/4 the said call was to be made at Mobile No. 9650394844 of Inspector Pramod Kumar. Now as per CDR Ex. PW-5/D, no call was made from telephone of the complainant to that of Inspector Pramod Kumar. There apparently was no telephone talk between the two as alleged.
CC No. 4/12 Page52 of 65 It would be pertinent to mention herein that the complainant during course of his testimony as PW-2 had stated that after he reached CBI office on 11.4.2012, verification proceedings were conducted and conversation recorded and that it was thereafter that he wrote his complaint (Ex. PW-2/1). In this regard it would be beneficial to refer to the Verification Memo Ex. PW-2/2 which mentions about handwritten complaint of the complainant having been read over and explained to the independent witness before the verification call was made. The court is confused as to whether the verification proceedings followed the complaint or vice-a-versa.
38 Moreover, as per testimony of PW-2 (Complainant) after money was handed over to A-2, the complainant called up A-1 on his mobile phone. The said fact is confirmed by the Recovery Memo. Now, the transcript in respect of Q-2 confirms the said fact. However, as per CDR Ex. PW-5/D there had been four calls made by complainant to the accused on 12.4.2012 and not merely two calls as PW-2 wants this court to believe. There apparently has been no explanation on record in this regard.
39 Besides the "defects" mentioned herein-above, there are some other aspects which require a close look by the Court.
As per complainant PW-2, the initial demand made by the accused was of Rs.15,000/- which was then reduced to Rs.10,000/- on the same day i.e. on 07.04.2012. The complaint Ex.PW-2/1 only mentions demand of Rs. 10,000/-. There is no mention therein of the alleged initial CC No. 4/12 Page53 of 65 demand of Rs.15,000/- or regarding any negotiation reducing the amount to Rs.3000/-. As per the first recorded conversation between A-1 and complainant (Q-1) the accused is reported to have said "Teen, Teen, Toh Bataya Tha Na Maine Ya". There is nothing on record as to when the alleged bargaining from Rs.10,000/- to Rs.3000/- had taken place and in absence thereof, it is difficult to opine that the amount of Rs.3000/- was in any manner related to be "bribe amount"
negotiated from Rs.10,000/- to Rs.3000/-.
40 As per case of prosecution the shadow witness Manish had been deputed to accompany the complainant and to hear the conversation and watch the transaction. It is admitted case of prosecution that Manish remained outside and never entered room of Parshu Ram with the complainant. It is also admitted case that Manish had not accompanied the complainant to the khokha of A-2 and rather had remained at a nearby Tea shop. During his testimony as PW-9, Manish had claimed that he could not say what talks took place between complainant and Parshu Ram as he was at some distance from them. He had further claimed during course of cross examination by Ld PP that he was never deputed to act as a shadow witness and rather it was Shiv Kumar who was deputed for that purpose. Now, no action appears to have been taken by the investigating agency regarding Manish for having not accompanied the complainant inside the police station. Infact, Inspector Pramod Kumar (PW-13) specifically claimed that he did not make any enquiry from Manish as to why he had not gone inside the police station despite directions to accompany the complainant at all places. So CC No. 4/12 Page54 of 65 much for conduct of the complainant in not taking the shadow witness.
41 As per case of prosecution, a tape recorder had been given to the complainant to record the likely conversation which was to take place between him and the accused. Investigating agency wants this court to believe that after the complainant had a talk with Parshu Ram and came to Metro Station Uttam Nagar, the recorder was turned "off" and was again turned "on" when complainant approached A-2 for handing over the money. No explanation has come on record as to why the tape recorder had to be put "off" at that stage and why no recording of the conversation was done. 42 Let us now have a look at the documents relied upon by the prosecution in this case. As per Verification Memo Ex. PW-4/2, CBI seal applied on the Audio CD was handed over to independent witness Avinash Kumar on 11.4.2012 for being handed back to CBI officers on 12.4.2012. During course of his testimony as PW-4, said Avinash Kumar specifically claimed that the seal had not been handed over to him. During course of cross examination by Ld. PP for CBI he specifically denied the suggestion that the brass seal was ever handed over to him after use or that on 12.4.2012 he had gone to CBI office or had handed over same to Inspector Pramod Kumar.
43 As per Handing Over Memo Ex. PW-2/3, it had been observed at page No.3 at portion A - A1 that the GC notes furnished by complainant were of different denominations. As per case of prosecution there were six currency notes each of denomination of Rs.500/-. As per CC No. 4/12 Page55 of 65 Recovery Memo Ex. PW-2/4 the facsimile of the CBI seal used for sealing the washes and the CD was being embossed on each page of the Memo. A bare perusal of the document D-4 (Ex. PW-2/4) would show that there is no seal impression on any of the pages of this Memo much less on each page thereof. PW-4 Shiv Kumar who is one of the signatories to the Recovery Memo Ex. PW-2/4 had claimed during course of his testimony that signatures on the Recovery Memo had been obtained at PS Uttam Nagar. As per case of the prosecution, the document was prepared in CBI office after returning there from PS Uttam Nagar. PW-9 Manish during course of his cross examination by Ld. PP claimed that there was a bunch of documents got signed in CBI office and as it was getting late he only signed the same without reading or going through the documents.
44 The transcripts in this case, as per case of the prosecution were prepared on 24.4.2012. The transcript cum Voice Identification Memo (D-11) was proved during trial as Ex. PW-2/5. The present case came to be registered as RC 12(A)/2012. The document Ex. PW-2/5 mentions that it was prepared in case RC 05(A)/2011. No explanation has been provided by the investigating agency or prosecution in respect of this lapse. While on this, it would be pertinent to refer to testimony of PW-13 Inspector Pramod Kumar. He had claimed that seals are not issued to individual officers in CBI and the same are got issued by the officers from the Malkhana as and when required for a particular case. He claimed that the word "CBI, Year and Sl. No." of the seal are engraved on the seal. The said fact appears to have been CC No. 4/12 Page56 of 65 corroborated by PW-12 SI A.K. Maurya when he claimed that the word CBI and the year of issue is mentioned on all the seals kept in the malkhana for use in that year and each seal has a different serial number. It would be pertinent to mention that the present case came to be registered on 11.4.2012. As per CFSL report Ex. PW-1/A, the seal found on the sealed bottles was of "CBI ACB ND 30/2011". The same particulars are mentioned in the CFSL report Ex. PW-3/A in respect of CDs. No explanation has appeared on record as to under what circumstances seal of the year 2011 came to be used during course of investigation of this case which was registered in April 2012.
45 As per case of prosecution, the recording of conversation between complainant and the accused had been made on a Digital Voice Recorder. The said digital voice recorder admittedly was never produced in court. Not only the voice recorder, no memory chip thereof was ever produced in court for examination of the recordings by the court. Infact the conversation recorded in the DVR was primary evidence which ought to have been produced before the court during course of trial. The investigating agency of its own, for reasons best known to the agency, chose to transfer its contents to the CDs. A bare perusal of testimonies of witnesses and facts and circumstances of the case reveal that the transferred recordings in the CDs were not exact replicas of the original recordings which might have appeared in the DVR. The time gap between movement of the complainant from Metro Station to PS Uttam Nagar and his returning back to the Metro Station from police station does not find reflection CC No. 4/12 Page57 of 65 in the CDs or the transcripts. As per Recovery Memo, the digital recorder was given to the complainant at Metro Station by keeping it on recording mode and was taken back and switched off when complainant came back to the Metro Station from PS Uttam Nagar. It was claimed to have been again switched on and given to complainant when he reportedly proceeded towards the Paan Shop and was claimed to have been taken back from complainant and switched off after it was decided to take A-2 to PS Uttam Nagar. Now in absence of any recording in respect of the intervening period i.e. the time taken by the complainant for going from Metro Station to police station and return there- from and also regarding the time taken by him for going from the Metro Station to Paan Shop and the recovery proceedings thereof, a serious doubt arises in mind of this court regarding genuineness of the recordings and the transcripts prepared. The doubts are fortified when during their testimonies, some of the witnesses claimed that the transcripts had not been prepared in their presence. PW-8 Shiv Kumar had claimed that the transcript had been typed before he reached and as far as he rememberd, the CD had not been played in his presence and only his signature obtained on the transcript. PW-9 Manish Kumar had also claimed that no CD was played in his presence on 24.4.2012 and no transcript was prepared in his presence. While claiming that he had identified his voice and that of Parshu Ram, even the complainant had claimed that the recordings had been reduced into writing and his signatures were obtained on the documents. He had specifically claimed that he had compared the recorded CC No. 4/12 Page58 of 65 conversation and the transcripts already prepared which matched. All this puts in doubt genuineness of the recordings and the transcript.
The doubts regarding genuineness of the CD containing alleged conversation (Q1) are further enhanced as there is no explanation on record as to in whose custody the sealed pullanda containing CD of Q1 had remained from 11.4.2012 to 12.4.2012. As per Verification Memo Ex. PW-2/2, the pullanda was sealed by using CBI seal. This document prepared on 11.4.2012 at 6.15 PM does not mention about the said pullanda having been seized. It was in Handing Over Memo prepared on 12.4.2012 that it was mentioned that the sealed pullanda of Q1 had been taken into police possession vide the said Memo (Ex. PW-2/3). Now as per case of prosecution, the seal had been handed over to Avinash on 11.4.2012. Avinash had refuted this claim of the investigating agency regarding seal being handed over to him. This puts in doubt safe custody of the pullanda containing CD (Q1) and the conversation contained therein. 46 After the alleged incident took place at Panwari shop, as was case of prosecution, A-2 was taken to PS Uttam Nagar where after A-1 was apprehended and both the accused formally arrested. A-1 as per case of prosecution was a serving police official then posted in PS Uttam Nagar where the arrest proceedings, hand wash proceedings and some other proceedings were conducted. It has appeared during testimony of witnesses that SHO, PS Uttam Nagar was present in PS when CBI team reached there after having apprehended A-2. Surprisingly, neither the SHO nor any CC No. 4/12 Page59 of 65 other police official was made a signatory to the Arrest Memos or Personal Search Memos prepared in PS Uttam Nagar.
47 It had been observed in Rao Sahib's case (Supra) that normally bribe amount is not accepted in presence of a stranger. It was further observed therein that where circumstances show that the acts attributed are against normal course of human behaviour, that would throw considerable doubt on the prosecution version. It was further observed that where the prosecution evidence is clouded with circumstances against the normal human behaviour, then a reasonable doubt arises and it would be dangerous to act on that part of the prosecution version. It would be beneficial to look at the said observation in light of the alleged conversation that took place between the complainant and accused as recorded on 11.4.2012. It appears from the said conversation (Q-1) that A-1 was prepared to send one of his constables to the complainant and also give him another option to send the money through some friend, relative or neighbour of the complainant. There is nothing in the conversation to opine that accused was asking for any bribe. Even if, for the sake oif arguments it be assumed that what was being asked for was bribe amount, it appears to be against normal course of human behaviour that a person seeking bribe would ask the bribe giver to send it through any friend, relative or neighbour or would even be prepared to send his constable to collect the money. Obviously, the bribe taker would not venture to publicise that he was taking bribe from bribe giver. Such like conduct can only be of a person CC No. 4/12 Page60 of 65 who is not asking for any bribe.
48 It has been observed in a catena of authorities that mere recovery of money from the accused by itself is not enough in absence of substantive evidence of demand and acceptance. It has also been held that mere recovery cannot prove charge of the prosecution in absence of any evidence to prove payment of bribe or showing that the accused voluntarily accepted the money knowing it to be bribe. As was observed in Anand Sarup's case (Supra) that in a case of bribery, mere recovery of money divorced from the circumstances in which it is paid is not sufficient to convict the accused when the substantive evidence in case is not reliable. 49 As regards defence of the accused, it had been claimed that the money paid by complainant to A-2 was a settlement amount payable by complainant to one Poonam Tyagi and was handed over to A-2 to be kept by him for being delivered to her. The accused had examined the said Poonam Tyagi as DW-1 in this case. On perusal of her testimony recorded in court, this court does not feel itself inclined to accept her testimony. She wants this court to believe that Amit (complainant herein) had snatched mobile phone of her son and thereafter her son called her up from Amit's phone informing his phone having been snatched. Obviously, a person who snatches phone of another would not hand over his own phone to the victim to call up victim's mother. Furthermore, she had claimed that it was towards end of April, 2012 that she had a talk with Parshu Ram to request him to secure her amount from Amit. It would be pertinent to point out herein that A-1 Parshu Ram was in CC No. 4/12 Page61 of 65 custody in this case since 12.4.2012 and got released on bail only on or after 8.5.2012. She also had claimed having made inquiries from Parshu Ram during last week of April/first week of May. So much for claim of the defence witness. Apparently, this court does not find any merit in the testimony of the defence witness.
50 It was claimed by the accused that there had been some dispute between Poonam and Amit Dagar (present complainant) regarding some loan extended by Poonam to Amit. It had been claimed that the dispute was settled between the two and Amit agreed to pay sum of Rs.10,000/- to Poonam Tyagi towards settlement of the outstanding dues and that the amount of Rs.3,000/- in this case handed over by Amit to A-2 Surinder was infact an installment in that regard and was not a bribe amount as alleged. Now although this court does not believe statement made by DW-1 Poonam Tyagi in this regard, it would be pertinent to refer to testimony of PW-8 Shiv Kumar Saini who specifically claimed that name of one Poonam Tyagi did transpire during interrogation of accused Parshu Ram who claimed that the money belonged to her. During course of cross examination by Ld. PP he had further claimed that perhaps name of Poonam Tyagi had also been informed by Parshu Ram to the IO claiming that some quarrel had taken place and money was for settlement of the same. Now factum of some dispute between complainant and Poonam is not disputed and rather is admitted by the complainant himself. During course of his testimony he had claimed that some constables had reached the spot where compromise was effected between him and Poonam and had CC No. 4/12 Page62 of 65 further claimed that son of the complainant (Poonam) was present at the spot and Poonam had reached there subsequently. That being the position, what transpired from record is that identity of Poonam has not been disputed by the complainant who also has not disputed a compromise having been entered into between him and the said Poonam. This coupled with fact that as per PW-8, name of Poonam Tyagi had transpired at the earliest during interrogation of accused Parshu Ram who claimed that the money was of Poonam Tyagi and towards the settlement of dispute, probablises the defence of accused as had been laid bare in this case and stated by the accused during course of their statements U/s 313 Cr. P.C. As has been observed in Hem Chander's case (Supra) that accused is only required to prove his defence by preponderance of probability. While prosecution is required to prove its case to the hilt, the accused has only to probablise his defence and is not required to prove it beyond doubt. It was observed in Khushi Ram Vs. State [1995 (2) AD (Delhi) Page 77] that an accused is not required to prove his defence beyond doubt and it is sufficient for him in case he comes forward with a version which is probable and reasonable and fits in with the circumstances of a given case. 51 It was observed in T. Subramaniam's case (Supra) that if two views are possible from very same evidence, it cannot be said that prosecution has proved its case beyond reasonable doubt.
52 As per catena of judicial pronouncements, where the court finds itself on horns of dilemma or at a cross road has to find out a way where likes the truth, the rough and CC No. 4/12 Page63 of 65 ready answer and obvious mandate given by criminal jurisprudence is to abandon the exercise in futility in search of truth and better giving benefit of doubt to the accused by way of abundant caution.
53 As already mentioned and observed herein above, even from its own evidence led before this court prosecution has failed to prove the guilt of the accused persons to the hilt. Prosecution is supposed to prove its case on basis of legally admissible cogent and coherent evidence and has to travel the distance between "may be true" and "must be true" on its own legs and cannot take benefit of weaknesses of the defence.
54 In the present case, prosecution apparently has failed to travel the said distance and benefit thereof has necessarily to be extended to the accused persons. In view of facts and circumstances of the case it cannot be said that prosecution has proved its case beyond reasonable doubt or that the accused had received the money as illegal gratification. In view of doubts raised in mind of this court regarding the truth, veracity and genuineness of case put forward against the accuseds, this court is of considered opinion that benefit of doubt deserves to be extended to the accused persons.
55 In facts & circumstances of the case, an unsavoury impression gets impacted on the totality of evidence that the entire truth about the occurrence has not been placed before the Court. Despite his best efforts, ld. PP could not sail the Prosecution case out of the troubled waters in view of deficiencies and defects in the case as have been CC No. 4/12 Page64 of 65 discussed hereinabove. Accordingly, while extending benefit of doubt to the accused persons, they are ordered to be acquitted in this case.
Announced in the open court (M.R. SETHI)
on 30.1.2014 SPECIAL JUDGE-IV, CBI (PC ACT)
TIS HAZARI COURTS, DELHI
CC No. 4/12 Page65 of 65