Delhi District Court
Cbi vs . Vipin Kumar And Another on 27 February, 2020
IN THE COURT OF MS. SUJATA KOHLI, DISTRICT & SESSIONS
JUDGECUMSPECIAL JUDGE (PC ACT)(CBI), ROUSE AVENUE
COURT, NEW DELHI
CC No. 08/2019
RC/FIR No. RCDAI2017A05, CBI, ACB, Delhi
U/s: 7 and 13(2) r/w 13(1)(d) PC Act 1988
& 120B IPC
Central Bureau of Investigation
Versus
1. Vipin Kumar
S/o Sh. Ishwar Singh,
R/o Village Basi, District Bagpat,
Uttar Pradesh ........... Accused No. 1
2. Majid Khan
S/o Sh. Chand Khan,
R/o House No. 703, Chandni Mahal,
Daryaganj, Delhi. ........... Accused No. 2
1. Date of Institution : 01.05.2017
2. Date of Commencement
of Final Arguments : 02.12.2019
3. Date of Conclusion of
Final Arguments : 26.02.2020
4. Date of Reserving Order : 26.02.2020
5. Date of Pronouncement : 27.02.2020
CBI Vs. Vipin Kumar and Another
RC No. 2017A05 Page 1 of 64
6. Whether Acquitted or
Convicted? : Acquitted.
JUDGMENT
Brief Facts:
Prosecution Story:
The instant case was registered on 06.02.2017, on the basis of complaint dated 03.02.2017, filed by one Sh. Dinesh Kumar, complainant.
On 31.01.2017, two persons namely Vipin Kumar and Majid Khan (accused) came to the house of complainant and introduced themselves to be from Income Tax Civic Centre.
They asked the complainant as to how many properties he had? The complainant disclosed them about his properties and the two accused told the complainant that he had not been paying tax and, therefore, he would be charged with a heavy penalty of at least Rs. 10,00,000/. They warned the complainant that his property also may be attached and he may also be sent to jail.
Accused also told the complainant that, if he wanted to be saved from penalty and jail, he should come to Civic Centre, Minto Road, New Delhi in evening and they would introduce him to the senior officers.
The abovesaid two accused persons gave their mobile numbers CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 2 of 64 to the complainant.
On 31.01.2017 itself, at about 05.00 PM, evening complainant reached near Civic Centre and dialed the aforesaid mobile number. Majid Khan reached at Gate No. 6, and took complainant to the 15 th floor of the Income Tax Building at Minto Road, where Vipin Kumar was already present. They asked complainant to wait there, and accused Vipin Kumar went away, saying that he was going to see if the senior officer was available. After a few minutes, Vipin Kumar came back and told that senior officer was not available in the office.
Thereafter, accused Vipin Kumar and Majid Khan came out from the building with complainant and told him that they had discussed the matter with senior officer regarding waiving off penalty of Rs. 10,00,000/ and the penalty would be waived off if he is ready to pay at least Rs. 2,00,000/.
On the bargaining of the complainant, the bribe amount was settled to Rs. 1,00,000/ and on the same day, the two accused took Rs. 10,000/ from the complainant. They also asked the complainant to pay balance amount within two days.
However, complainant showed his inability to pay such a huge amount at once and as such the accused persons asked him to pay Rs. 40,000/ on 04.02.2017 and the remaining amount within a week thereafter. On 02.02.2017, complainant received a call on his mobile number 9810438077 from mobile number 9210427717, wherein Majid Khan asked the status of bribe money from CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 3 of 64 complainant. However, complainant did not pay the remaining amount of the bribe and instead proceeded to make a complaint to CBI, New Delhi i.e. on 03.02.2017.
Investigation was marked to Inspector Ramesh Kumar, CBI, ACB, New Delhi for verification. Presence of an independent witness namely Sh. R.K. Sharma, LDC, SDMC, 26th Floor, Vigilance Department, Civic Centre, Minto Road, New Delhi was secured.
During verification proceedings, a digital voice recorder (DVR) and a memory card was arranged.
After ensuring the blankness of the DVR and the memory card, formal voice of said independent witness was recorded in the memory card through the DVR. Functioning of the DVR was explained to the independent witness and to the complainant.
Thereafter, complainant made a call on mobile number 9210427717 of Majid Khan and requested him to arrange a meeting with Vipin Kumar and senior officer. Majid Khan replied that he would confirm the presence of Vipin Kumar and senior officer after sometime.
In the said conversation, Majid Khan allegedly confirmed the acceptance of Rs.10,000/ and directed complainant to come with '40'.
At around 16:18 hours, Majid Khan gave a missed call to complainant. Thereafter, complainant made a call to Majid Khan, who asked the complainant to come to Civic Centre, Minto Road to CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 4 of 64 meet Vipin Kumar and senior officer.
Inspector Ramesh Kumar alongwith complainant and independent witness namely Sh. R.K. Sharma left for Civic Centre. On the way, complainant received a call from Majid Khan, wherein complainant told that he was stuck in traffic jam.
On reaching Civic Centre, complainant was given the DVR and he kept it in his left side inner pocket of his jawahar cut jacket. Sh. R.K. Sharma, independent witness was asked to follow the complainant.
Complainant Dinesh Kumar made a call on the mobile phone of Majid Khan and informed him that he was standing at Gate No.3. Majid Khan replied he was coming soon. Thereafter, complainant and Vipin Kumar talked with each other and this conversation was recorded in the DVR.
During the conversation, accused Vipin Kumar informed that he had got the charge waived off from the 'Additional'. When complainant requested Vipin Kumar for arranging a meeting with 'Sahab' to inform him that he would pay '40' on Monday, accused Vipin Kumar avoided the meeting of the complainant with 'Sahab'.
The memory card was taken out of the DVR and was kept in its original plastic cover, marked as Q1 after keeping in an envelope. It was sealed under the signature of VO, Inspector Ramesh Kumar, complainant and the independent witnesses. The DVR was separately sealed. Sealed DVR alongwith CBI seal was handed over CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 5 of 64 to Sh. R.K. Sharma, independent witness for safe custody.
For the verification proceedings, a verification memo dated 03.02.2017 was prepared, which was signed by complainant, independent witness and Insp. Ramesh Kumar. It was settled between the complainant and the accused persons that the payment of bribe would be made on 06.02.2017.
The complainant and the independent witness Sh. R.K. Sharma were asked to attend CBI office on 06.02.2017 for further proceedings. On the basis of complaint and verification memo, both dated 03.02.2017, FIR of this case was registered on 06.02.2017 and the investigation was marked to Inspector Vikas Pannu, CBI, ACB, Delhi.
On 06.02.2017, a trap team was constituted by Insp. Vikas Pannu, TLO comprising Sh. Ramesh Kumar, Nikesh Kumar, Sh. Harish Kumar and Sh. Harnam Singh, all inspectors of CBI/ACB, Delhi and other subordinate staff.
Presence of two independent witnesses namely Sh. R.K. Sharma and Sh. Ayodhya Prasad, LDCs from Vigilance Department, SDMC, 26th Floor, Civic Centre, Minto Road, New Delhi, was secured.
Complainant produced a sum of Rs. 40,000/ (20 GC notes in denomination of Rs.2000/ each). The distinctive numbers of these notes were noted down in the handing over memo. The currency notes were then treated by Insp. Harish Chandra with CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 6 of 64 phenolphthalein powder.
Personal search of complainant Dinesh Kumar was taken by Sh. Ayodhya Prasad, independent witness and nothing was left in his possession except his mobile phone.
The chemically treated amount of Rs. 40,000/ was put by Sh. Ayodhya Prasad in the left side pocket of the shirt of complainant under his jacket. Complainant was asked not to touch the amount and hand over the same to the accused on their specific demand, not otherwise, or on their specific direction to some other person.
Independent witness Ayodhya Prasad was directed to remain close to the complainant in discreet manner, as possible to overhear and see the conversation and the likely transaction of the bribe money.
Complainant and Sh. Ayodhya Prasad were also directed to give signal by giving a call at mobile number 9953053091 of TLO from their mobile phones. They were also directed to give signal by rubbing their face by both hands after the transaction is over. Thereafter, all the members, except complainant, mutually searched each other to ensure that they may not carry anything incriminating.
During further investigation, Sh. R.K. Sharma, independent witness produced the sealed DVR and CBI seal. TLO Insp. Vikas Pannu opened the seal of DVR in the presence of all above persons and placed a new blank memory card into the DVR.
Introductory voices of both the above independent witnesses CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 7 of 64 were recorded in it by ensuring its blankness. Thereafter, complainant made a call on the mobile number of accused Majid Khan. The call was recorded in the memory card through DVR by keeping complainant's mobile phone on loudspeaker mode in presence of independent witnesses. In the said conversation, complainant informed accused Majid Khan that he had got encashed the cheque and would be reaching him within 1 ½ and 2 hours.
The memory card Q1 was seized. For these proceedings, a handing over memo was prepared in CBI, ACB, New Delhi and it was signed by all the concerned in token of its correctness and genuineness.
At around 13:15 hours, all the trap team members including the two independent witnesses and the complainant left CBI office and reached at Gate No. 5 of Civic Centre at around 13:45 hours.
On reaching there, complainant made a call to Majid Khan, which was recorded in memory card through DVR by keeping the mobile phone of complainant on loudspeaker mode in presence of independent witnesses. In said call, complainant informed accused Majid Khan that he had reached near Gate No. 5 and waiting for him. Accused Majid Khan replied he was coming within half an hour.
DVR in switch on mode was put inside the left side pocket of the jacket of the complainant. At around 14:35 hours, accused Maijd Khan called complainant from his mobile. This call was also recorded in the memory card through DVR as the complainant had put his CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 8 of 64 mobile phone on loudspeaker mode. Majid Khan asked complainant about his location. Complainant told that he was standing at Gate No.5 of the Civic Centre.
Accused Majid Khan reached the complainant at Gate No. 5 and they both started walking towards Gate No. 6 of the Civic Centre talking with each other. Trap team and the independent witnesses followed them. When they both reached near Gate No. 6, accused Vipin Kumar also reached there and joined them. All three talked with each other and proceeded towards residential complex at Tagore Road, opposite Gate No. 6 of Civic Centre. Trap team also followed them in discreet manner.
Complainant informed that while he was talking with accused Majid Khan, in the meantime accused Vipin Kumar also came and joined them.
Complainant asked Majid Khan "Achcha Wo FileVile Kuch Hui Taiyar Hamari, Majid Khan asked 'file' and further said "Sab Kra Dunga Mein". Complainant further told "Kara Diya Sara Kaam, Paise Bhi Khare Hain Bhai Tumhare Mein To Juban Pe Hu Dekh Lo...... Puch Lo Andar Sahab Se Milwa Do Aaj". Majid Khan then told "Ha Mein Wahi Puch Loon." In the meantime, Vipin Kumar joined them. Complainant asked Vipin Kumar about the status of complaint and also requested to get him met with senior officer. Vipin Kumar was avoiding the meeting with the officer and told complainant "Are Aap Ye Batao Jab Survey Ho Hi Jaega To Apko Khud Hi Pta Lag Jaeya".
CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 9 of 64 He further told "Ek To Baat Khatam Bas........ complaint Ko Jo Hoti Hai Na."
Accused Vipin Kumar demanded the bribe from the complainant by gesture. Therefore, the complainant took out the bribe amount of Rs.40,000/ from the left side pocket of his shirt under the jawaharcut jacket and extended the same to accused Vipin Kumar but accused Vipin Kumar slightly touched the money with his right hand and then insisted the complainant to pay the bribe money to accused Majid Khan, who was standing near them.
Thereafter, on the directions of accused Vipin Kumar, complainant handed over bribe amount of Rs. 40,000/ to accused Majid Khan, who took the money from his right hand and started counting the same with his both hands. On being asked, shadow witness Sh. Ayodhya Prasad also confirmed the version of complainant and stated that he had seen the complainant delivering the bribe amount first to Vipin Kumar and thereafter, after some talks, to Majid Khan. Then complainant gave the predecided signal by rubbing his face with his hands.
On receipt of signal, all the team members immediately rushed towards the spot where both accused persons and complainant were standing. Accused Majid Khan was holding the bunch of Rs.2000/ denomination notes in his right hand.
In the meantime, when accused Vipin Kumar started leaving the spot towards Tagore Road, he was caught by Insp. Vikas Pannu CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 10 of 64 with his right wrist and Insp. Ramesh Kumar with his left wrist.
Accused Majid Khan was caught hold of by Insp. Nikesh Kumar Upadhyay with his right wrist and Insp. Harish Chandra with his left wrist. DVR was taken back from the complainant and switched off.
TLO Insp. Vikas Pannu challenged accused Vipin Kumar that he had accepted a bribe amount of Rs.40,000/ from Dinesh Kumar, Vipin Kumar got perplexed and kept mum.
TLO Insp. Vikas Pannu challenged accused Majid Khan, who pleaded his innocence and disclosed that he was working for accused Vipin Kumar, Notice Server of Income Tax Department for his assistance of notice serving on daily basis. He further disclosed that he was receiving the money on behalf of Vipin Kumar.
From the personal search of accused Vipin Kumar, photocopy of half portion of first page of complaint being inquired in IT department against complainant Sh. Dinesh Kumar, was also recovered alongwith other items, mentioned in personal search memo dated 06.02.2017.
The bribe money was recovered by Sh. R.K. Sharma, independent witness from the right hand of accused Majid Khan. Independent witnesses Sh. Ayodhya Prasad and Sh. R.K. Sharma counter checked the numbers of GC notes with handing over memo and found the same and they both tick marked and signed on the handing over memo.
Thereafter, in presence of independent witnesses, washes of CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 11 of 64 right hand and left hand fingers of accused Majid Khan were taken separately in two separate glass tumblers containing freshly prepared solution of sodium carbonate with water.
The colour of both solutions turned pink and the said solution was transferred in two clean glass bottles, one for right hand wash and second for left hand wash of accused Maijd Khan.
Paper labels were pasted on these bottles marked as RC 05(A)/2017 MAJID KHAN "RHW" and RC05(A)/2017 MAJID KHAN "LHW" respectively, singed by TLO and both independent witnesses.
The said bottles were capped, wrapped with cloth and sealed with CBI brass seal. The cloth wrapper was also signed by TLO and both independent witnesses.
In presence of independent witnesses, the washes of the right hand and left hand fingers of accused Vipin Kumar were also taken separately in two separate clean glass tumblers containing freshly prepared solution of sodium carbonate with water. The colour of right hand fingers turned light pink.
Both the solutions were transferred in two clean glass bottles. One for right hand wash and second for left hand wash of accused Vipin Kumar, paper labels were pasted on these bottles marked as RC05(A)/2017 VIPIN KUMAR "RHW" and RC05(A)/2017 VIPIN KUMAR "LHW" respectively. The said bottles were also capped, wrapped with cloth and seal with the CBI brass seal. The cloth wrapper was also signed by TLO and both independent witnesses.
CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 12 of 64 The recovered bribe amount of Rs.40,000/ was kept in a brown colour envelope and sealed with CBI brass seal and marked as "Trap Money in RC05(A)/2017, CBI, ACB, Delhi (Rs. 40,000/)". This envelope was signed by TLO, both independent witnesses and the complainant.
Thereafter, an unscaled site plan of the place of occurrence was prepared by TLO Insp. Vikas Pannu on the spot at the instance of both independent witnesses, indicating the positions of trap team members, complainant, independent witnesses and the accused and the same was signed by all concerned ones.
During investigation, accused Vipin Kumar disclosed that address of complainant was given by Ms. Shalini R. Arora, ITO, Ward 54(2), for secret verification. Accordingly, he visited the address of complainant Dinesh Kumar.
Thereafter, Ms. Shalini R. Arora was contacted in her office and was informed about the trap of accused Vipin Kumar, Notice Server.
She was also asked to provide the file pertaining to Sh. Dinesh Kumar, in lieu of which accused Vipin Kumar had demanded and accepted the bribe.
Ms. Shalini R. Arora produced certified copies of the file of Dinesh Kumar, which was seized vide a productioncumseizure memo prepared at her office.
On the disclosure of accused Vipin Kumar that he was using a CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 13 of 64 Hyundai Accent Car, which was parked in the basement of parking of Civic Centre, search of Hyundai Accent car being Registration No. DLDCS5149, was conducted in the presence of independent witness Sh. Ayodhya Prasad and incriminating documents and articles were seized vide a separate car searchcumseizure memo and other proceedings were carried out in CBI office.
Both accused namely Majid Khan and Vipin Kumar were arrested on 06.02.2017 and their personal search was conducted in presence of independent witnesses.
During further investigation, last recorded conversation was played. Thereafter, memory card was taken out from the DVR and kept it its original packing, marked as Q2 and by keeping in an envelope, it was sealed under the signatures of TLO Insp. Vikas Pannu, complainant and both independent witnesses.
Accused Majid Khan and Vipin Kumar voluntarily gave their specimen voice, which was recorded in two blank memory cards. The memory cards were marked as S1 (Majid Khan) and S2 (Vipin Kumar), sealed in an envelope and seized.
The left hand and right hand washes of both the accused were sent to CFSL for opinion for the presence of phenolphthalein and sodium carbonate on washes.
Exhibits RC05(A)2017 VIPIN KUMAR "RHW", RC05(A)2017 MAJID KHAN "LHW", and RC05(A)2017 VIPIN KUMAR "LHW", gave positive tests for the presence of phenolphthalein and sodium CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 14 of 64 carbonate.
Memory cards Q1, Q2, S1 & S1, S2 were also sent to CFSL, New Delhi for comparison of voice and opinion. The transcription recorded in memory card Q1 and Q2 were also prepared vide transcriptioncumvoice identification memo dated 16.03.2017 in presence of complainant Sh. Dinesh Kumar and both independent witnesses and they identified their voices. Complainant has also identified voices of both the accused recorded in Q1 and Q2.
The CDRs/CAFs of mobile numbers 09310226795 and 09210427717 used by accused Majid Khan and 09810438077 of the complainant were seized from the concerned service providers alongwith certificate under Section 65B of Evidence Act.
Mobile number 09210427717 was found registered in the name of Smt. Nafeesa, wife of accused Majid Khan and mobile number 09310226795 was registered in the name of accused Majid Khan and mobile number 09810438077 in the name of complainant Sh. Dinesh Kumar.
After completion of investigation, the instant chargesheet was filed against accused Vipin Kumar and Majid Khan for the offence punishable under Section 120B IPC & Sections 7, 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988 and commission of substantive offence under Sections 7, 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988 against accused Vipin Kumar and Majid Khan.
CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 15 of 64 Upon consideration of the material on record, both the accused were charged under Sections 120B IPC read with Section 7 and 13(2) read with Section 13(1)(d) of Prevention of corruption Act, 1988 as per order of Ld. Predecessor.
Accused Vipin Kumar was also charged under Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988.
Both accused pleaded not guilty and as such matter went into trial.
Witnesses examined by Prosecution:
Sr. Name of the Witness Documents Exhibited/Proved No.
1. PW1 Yogesh Tripathi, Ex.PW1/A (D21), Production Nodal Officer, Reliance cumseizure memo, dated Communications Ltd., 21.03.2017, regarding handing Reliance Center, over of original CAF of Mobile No. Maharaja Ranjit Singh 9310226795 in the name of Majid Marg, New Delhi. Khan alongwith copy of ID proof, CDR from 25.01.2017 to 07.02.2017 and certificate under Section 65B Evidence in support thereof;
Ex.PW1/B CAF (2 pages) (collectively alongwith the copy of Adhar Card of subscriber);
Ex.PW1/C CDR, including Cell Location Chart of relevant time (3 pages);
CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 16 of 64 Ex.PW1/D certificate under Section 65B Evidence Act and Ex.PW1/E Covering Letter.
2. PW2 Sh. Surender, Ex.PW2/A (D23), Production Nodal Officer, Bharti cumseizure memo, dated Airtel Ltd., 224, Okhla 21.03.2017, regarding handing PhaseIII, New Delhi. over of certified copy of CAF of Mobile No. 9814038077 in the name of Dinesh Kumar alongwith copy of ID proof, CDR from 25.01.2017 to 07.02.2017 and certificate under Section 65B Evidence in support thereof;
CAF Ex.PW2/B (2 pages) (collectively alongwith the copy of Voter ID Card of subscriber);
Ex.PW2/C CDR including Cell Location Chart of relevant time (3 pages);
Ex.PW2/D Certificate under Section 65B Evidence Act;
and Ex.PW1/E Covering Letter.
3. PW3 Rajiv Ranjan, Ex.PW3/A (D17) Production Nodal Officer, Tata cumseizure memo, dated Teleservices Ltd., 2A, 07.03.2017, regarding handing Old Iswar Nagar, Main over of original CAF of Mobile No. Mathura Road, New 9210427717 in the name of Ms. Delhi. Nafisa Begum D/o Mohd.
CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 17 of 64 Sahbuddin alongwith copy of her ID proof, CDR from 25.01.2017 to 07.02.2017, certified copy of relevant Cell ID chart and certificate under Section 65B Evidence in support thereof;
Ex.PW3/B CAF (2 pages) (collectively alongwith the copy of Aadhar Card of subscriber); CDR for said period of the relevant time Ex.PW3/C (2 pages);
Ex.PW3/D Location Chart;
Ex.PW3/E Certificate under Section 65B Evidence Act;
and Ex.PW3/E Forwarding Letter.
4. PW4 Sh. Dinesh Ex.PW4/A (D1) Complaint;
Kumar, complainant.
Ex.PW4/B (3 pages) Verification Memo (D2);
Ex.PW4/C Handing Over Memo (D4);
Ex.PW4/D Site Plan (D5);
Ex.PW4/E FIR dated 06.02.2017;
Ex. P1 Memory Card;
Ex. P2 Brown Envelope, in which the memory card was kept;
CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 18 of 64 Ex. P3, another envelope, having marking Ex. Q2 sealed with the seal of SKC SSOII (PSY) CFSL CBI N. Delhi;
Ex. P4, another Brown Envelope, in which a memory card was kept;
Ex. P5, black colour make Sony DVR;
Ex. P6, brown envelope, in which the DVR was kept;
Ex. P7, Envelope containing marking 'Trap Money' and sealed with the CBI seal;
Ex. P8 (collectively), Currency Notes;
Ex.PW4/F (D10), Recovery Memo, dated 06.02.2017;
Ex.PW4/G (internal page 2 to 7 of D20), Transcription related to verification call Q1;
Ex.PW4/H (internal page 8 to 13 of D20), Transcription of the spot conversation related to Q2;
Ex.PW4/I (internal page 14 to 15 of D20), Transcription of folder S CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 19 of 64 1 and S2;
Ex.PW4/J (page 1 of D20), TranscriptioncumVoice Identification Memo;
Ex. P9, Memory Card S1.
Ex. P10 (collectively), outer and inner envelopes regarding Memory Card S1;
Ex. P11, Memory Card S2;
And Ex. P12, outer and inner envelopes regarding Memory Card S2.
5. PW5 Sh. Atiq Ahmad, Ex. PW5/A, Sanction Order Sr. Departmental regarding prosecution of accused Representative, Income Vipin Kumar; and Tax Appellate Tribunal, Delhi. Ex.PW5/B, Letter vide which the Sanction was sent to CBI.
6. PW6 Sh. R.K. Sharma, Ex. P13, Seal of CBI, ACB, New the then Vigilance Delhi;
Inspector, SDMC.
Ex.PW6/A, Arrest Memo of accused Majid Khan;
Ex.PW6/A1, Personal Search Memo of accused Majid Khan;
Ex. P14, bottle containing LHW of accused Vipin;
CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 20 of 64 Ex. P15, bottle containing RHW of accused Vipin;
Ex. P16, bottle containing LHW of accused Majid Khan;
Ex. P17, bottle containing RHW of accused Majid Khan;
Ex. P18 (collectively), Cloth Wrappers of the hand wash bottles; and Ex. P19, envelope of the cloth wrappers.
7. PW7 Sh. Ayodhya Ex.PW7/A, Car search memo (D Prasad, LDC Vigilance 7).
Department, SDMC (vol.
retired).
8. PW8 Dr. Subrat Kumar Ex.PW8/A, Copy of Forwarding Choudhary, Sr. Scientific Letter vide which the case property Officer GradeII was forwarded to CFSL; (Physics), New Delhi.
Ex.PW8/B, Report of this witness dated 23.05.2017;
Ex. Q1, Envelope Q1;
Ex. Q2, Envelope Q2;
Ex. DVR, Envelope DVR;
Ex.PW8/C (collectively), official of this witness containing the CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 21 of 64 spectograms and auditory worksheets;
Ex.PW8/D (collectively), copy of
guidelines/working procedure
manual of Physics Division relating
to voice examination; and
Ex.PW8/E (collectively), separate
worksheets for authentication
examination prepared by this
witness.
9. PW9 Ms. Deepti Ex.PW9/A (D13), copy of
Bhargava, Sr. Scientific Forwarding Letter by which the
OfficerIIcumAssistant exhibits were sent to CFSL; and
Chemical Examiner to
Govt. of India, CFSL, Ex.PW9/B (D18), chemical
New Delhi. examination report dated
03.03.2017
10. PW10 Ms. Shalini R. Ex.PW10/A, seizurecum
Arora, Income Tax production memo; and
Officer, International
TaxationI, Civic Center, Ex.PW10/B (collectively), certified
Minto Road, New Delhi. copy of a file.
11. PW11 Sh. Vikas Kumar, Ex.PW11/A (collectively),
ITO/TRO16, office of productioncumseizure memo,
the Principal CIT16, dated 28.02.2017 (D15); and New Delhi.
Ex.PW11/B (collectively), seizure memo dated 01.03.2017 (D16).
12. PW12 Inspector Ramesh Kumar, ACB, CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 22 of 64 CBI, New Delhi.
13. Insp. H.V. Attri, CBI Ex.PW13/A (D14), forwarding ACB, New Delhi. letter;
Ex.PW13/B (D22), copy of TEP containing property details of complainant, recovered from the possession of accused Vipin Kumar during personal search.
14. PW14 Inspector Vikas Ex.PW14/A (D11), disclosure Pannu, CBI, ACB, New statement of accused Vipin Kumar;
Delhi. and Ex.PW14/B (D12), disclosure statement of accused Vipin Kumar;
Statement of accused - Specific defence raised by accused, if any, apart from denial:
Nil.
Defence Evidence:
Nil.
Arguments heard at length over a number of days.
Upon giving my thoughtful consideration to the entire material on record, oral and documentary, I proceed to give my findings as under:
Self contradictions Prosecution Case:
Ld. Defence Counsel for most part of his arguments has taken CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 23 of 64 the Court through the testimonies of most material witnesses in order to highlight some grave contradictions in their testimonies on the most crucial aspects of the investigation proceedings.
The case of the prosecution is that both the accused persons visited the house of complainant on 31.01.2017, and told him about imposition of the penalty upon him, by the income tax office, on the contrary it has come on the record in the testimony of Shalini Arora PW10 and PW11, that for the first time on 02.02.2017 they have informed the accused Vipin about the notice issued against the complainant.
How then the accused persons could have approached the complainant on 31.01.2017 and told him about the imposition of the penalty upon him.
The incident of 31.01.2017 is the initial point, as well as the geneses of the prosecution story, which itself gets demolished by the testimony of PW10, PW11 & PW13 and also falsifies the story of the complainant.
That, further during the testimony, complainant has given contradictory version with respect to the meetings with Vipin and Majid at CBI Office on 31.01.2017 and the prosecution did not even make any efforts to verify the said claim as well as to seize the visitor register of the Civic Centre.
Transcription and Voice Identification: PW4 Sh. Dinesh Kumar, complainant, stated in examinationin CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 24 of 64 chief dated 10.10.2017 as under: "As far as I recollect, I never went to CBI office in connection with the present investigation."
Further statement of the same witness dated 12.02.2018 : "I had been called at CBI office later on in the month of March 2017".
Statement of the same witness in his crossexamination dated 28.05.2018: "I met Sh. R. K. Sharma for the first time on 03.02.2017 in CBI office. I met him in CBI office when I reached CBI office on 03.02.2017 as he was already present there. I am not meeting them after the incident."
Further statement of the same witness: examinationin chief dated 01.08.2018 - Para 48: "I had visited once again to CBI after 06.02.2017, but I do not recall whether during my such visit, my statement was recorded or not".
Next statement of same witness - Para 43 of his cross examination:
"I did not meet the independent witness after 06.02.2017".
As such it was the contention of the Ld. Defence Counsel that the said witness has throughout deposed in a self contradictory manner on the point of transcription as well as voice identification CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 25 of 64 memo proceedings.
Further reference is had to the contradictory statement of PW6 Sh. R.K. Sharma as under: Para 83 of crossexamination - "I do not remember the name of the official, who had recorded my statement. I do not remember if I had received written intimation regarding my reaching CBI office on 16.03.2017. I do not remember for how much time I stayed in CBI office. I do not know the name of the official, who had typed my statement or where it was typed and I never met Ayodhya Prasad after 06.02.2017 in connection with this case.
Statement of PW7 Ayodhya Prasad - examinationin chief: "On 16.03.2017, CD having conversation of accused and complainant was played on a laptop and voice of the accused persons and the complainant were identified."
Para 33 of his crossexamination: "I never met the complainant and other independent witness R. K. Sharma in CBI office after 06.02.2017."
PW13 Sh. H. V. Attri:
Para 22 of his statement "I do not remember if I had issued any notice to the complainant and independent witness to join the investigation on 16.03.2017. It is correct that I have not mentioned in the chargesheet regarding the manner in which these witnesses were informed to join the investigation on 16.03.2017."
CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 26 of 64 Para 23 of his statement "The complainant and witnesses had come to CBI office on 16.03.2017 at about 10.00/10.30 AM and they were discharged by about 05.00/05.30 PM.
Veracity of Memory Cards As per prosecution case, there were four memory cards in all, used in this case as under: i. Q1 - prepared on 03.02.2017, containing the telephonic conversation as well as on the spot conversation between complainant and accused persons.
ii. Q2 - prepared on 06.02.2017, containing the telephonic conversation as well as on the spot conversation between complainant and accused persons.
iii. S1 - prepared on 06.02.2017 at CBI office after the raid, containing the sample voice of accused Vipin. iv. S2 - prepared on 06.02.2017 at CBI office after the raid, which was containing sample voice of accused Majid Khan. PW4 Sh. Dinesh Kumar, complainant:
Para 10 of examinationinchief dated 09.10.2017: "CBI prepared a raiding team. One independent witness namely Sh. R.K. Sharma was also called in the CBI office. One recording gadget was given to me and some memory cards were put in such gadget. I was asked to keep it in my pocket and I was told that it would work for seven hours, with direction not to touch the CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 27 of 64 same. I was told that it would record the conversation even from a distance of two/three meters. When I was sitting with Insp. R.K. Sharma on 03.02.2017, I received a call from accused Majid Khan inquiring me about the time when I would be reaching ....."
Para 21 of crossexamination:
"This was the only call, which I received on 03.02.2017 prior to leaving CBI office for the Income Tax office. I did not make any call during that period."
Contention of the Defence Counsel - As per the case of CBI, two calls were made, while in the CBI office by the complainant to the accused, whereas on the contrary complainant, deposed that, one call was there and that too, it was a call received, and not a call made.
Para 21 of crossexamination: "The DVR was taken back from me when I reached the CBI vehicle after meeting the accused persons.
Para 31 of the crossexamination: "DVR was handed over to me in the CBI office itself on 06.02.2017 while switched on. It was handed over to me just prior to leaving the CBI office for the spot. Contention of Defence Counsel: (As per this version, the conversation contents the last file of Q2 would have been around 2.5 hours but Q2 was found to be having conversation of only 51 minutes.
Para 32 of crossexamination: "My voice was not recorded in CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 28 of 64 CBI office on 06.02.2017....".
Para 32 of crossexamination: "On the way to Income Tax office, I received a call from accused Majid Khan regarding the time when I was reaching there....". "When I received a call from Majid Khan, my phone was on loudspeaker mode, and I did not inform about the conversation to the others.....". Contention of the Defence Counsel: (As per the case of CBI, no call was received by the complainant as claimed on 06.02.2017 and further if the phone of complainant was not on loudspeaker mode, the DVR could not have recorded the voice of the accused persons."
Para 35 of the crossexamination: "The memory card was not kept in any plastic cover... In this case only two memory cards were sealed".
Contention of defence counsel: (As per the prosecution story, there are four memory cards, which were used in this case and also they were kept in plastic covers).
Para 35 of crossexamination: "The memory card which was sealed on 06.02.2017, was handed over to independent witness but I do not remember his name".
Contention of Defence Counsel: (If the memory card had been handed over to the witness, then which was the memory card sent to the CFSL).
"....Two memory cards were sealed on 06.02.2017 between 06.30 PM to 09.30 PM. One memory card was containing recording CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 29 of 64 of 03.02.2017 and other of 06.02.2017."
Contention of Defence Counsel: (If this part of the statement is to be believed as correct, it would discard the theory of making any sample voice in S1 and S2).
"My voice specimen was not taken by CBI on 06.02.02017 between 06.30 PM to 09.30 PM. No such specimen voice of any independent witness was taken during that period. (Vol. Our voice specimen had already been taken on 02.02.2017 and 06.02.2017 prior to leaving the spot).
Para 50 of crossexamination: "The memory card containing the conversation dated 03.02.2017 was sealed on 03.02.2017 and on 06.02.2017 only one memory card was sealed."
Contention of Defence Counsel: (This part of the statement would demolish the existence of S1 and S2 as claimed by the prosecution).
PW6 Mr. R.K. Shrama: Para 3 of examinationinchief: "The sealed DVR alongwith memory card was handed over to me".
Contention of Defence Counsel: (As per the case of prosecution, the memory card was never handed over to any witness at any point of time).
Para 36 of the crossexamination: "I do not know the capacity of the memory card also. I also do not know the exact company of the memory card. I had put my initials on the memory CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 30 of 64 card as well as the DVR. The complainant had also put his initials on the memory card. The Inspectors present had also put their initials on the said memory card and the DVR".
Contention of Defence Counsel: (As per the prosecution case, the memory card did not bear any signatures whatsoever and this again indicates manipulation or exchange of the memory cards).
Para 37 of the crossexamination: "Complainant had also made a call to accused Majid Khan during transit. One call was also received by the complainant from accused Majid Khan during transit".
Contention of Defence Counsel: (No such call is reflected either in the CDR, nor it was the story of CBI even. As such this again raises a question to the veracity of the memory card Q1".
Para 37 of the crossexamination: "DVR was handed over to the complainant in recording mode for the first time when we had started for the spot from CBI office in CBI vehicle itself. The DVR remained in continuous possession of the complainant till the time it was taken back from him."
Contention of Defence Counsel: (This would be contrary to the prosecution case, wherein it was alleged that, the DVR had been handed over to the complainant on the spot, and also if we go by the testimony of this witness, the last file containing the conversation in Q1 should have been of a duration of more than 1.5 hours instead of actual 26 minutes as reflected in the actual recording).
CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 31 of 64 Para 42: "After seeing the DVR, the witness stated that DVR did not bear his signatures".
Para 43: "After seeing the memory card witness stated that memory card did not bear his signatures."
Para 48: "DVR was given to the complainant on 06.02.2017 at CBI office while leaving for the spot." Contention of Defence Counsel: (All these aspects are again contrary to the story of prosecution as the DVR is stated to have been given at the spot."
Further contention of Defence Counsel: (The conversation contained in Q2 was supposed to be having a total duration of 2 to 2.5 hours as per the prosecution story whereas upon being played, it turned to be only for a total duration of 51 minutes in all).
Para 68: "My voice was recorded twice on 06.02.2017 after we had returned from the spot. My voice was not recorded at any other time by CBI on 06.02.2017."
Contention of Defence Counsel: (The authenticity of Q2 becomes questionable as Q2 was containing the introductory voice and which was allegedly taken once prior to leaving for spot on 06.02.2017 and once after returning therefrom.) Para 69: "Two memory cards were used in the present case, one on 03.02.2017 and second on 06.02.2017". Contention of Defence Counsel: (As per prosecution, there were supposed to be four memory cards in all).
CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 32 of 64 Para 70: "Voice of the complainant was recorded after returning to the CBI office."
Contention of Defence Counsel: (As per the prosecution case, no voice of complainant was recorded at that point of time). PW7 Ayodhya Prasad:
Para 3 of examinationinchief: "One DVR with memory card was given to complainant Dinesh Kumar and, thereafter, one phone call was received..... Thereafter, two/three calls were made." Contention of Defence Counsel: (As per prosecution case, no call was received).
Para 33 of crossexamination: "Only one memory card was used in this case in my presence".
Contention of Defence Counsel: (This witness has demolished the very existence of S1 and S2 completely.
Para 33 of crossexamination: "The memory card was signed by me".
Contention of defence counsel: (As per the prosecution case, the memory card did not bear any signatures).
Para 34 of crossexamination: "For the first time, the DVR was handed over to the complainant by CBI, prior to leaving for the spot. Since then the DVR was in continuous possession of the complainant."
Contention of Defence Counsel: (Contrary to the case of prosecution, as per which the DVR was handed over to the CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 33 of 64 complainant upon reaching the spot).
Para 57 of crossexamination: "Thereafter. The DVR was sealed at the spot in an envelope."
Contention of Defence Counsel: (As per prosecution case, the DVR was sealed after recording S1 and S2 at CBI office).
Para 61 of crossexamination: "I do not remember whether my voice was recorded in the CD or a cassette in CBI office after returning from the spot."
Contention of Defence Counsel: (Contrary to the CBI version, as referred above).
Events taken place on 31.01.2017 As per the complaint (D1): The complainant went to income tax office at around 5.00 pm where Majid Khan met him near gate no. 6 and took him to the 15th floor of the income tax building where Vipin was already present. ...... they asked him to sit and Vipin went away saying that he is going to see a senior is available........ after few minutes he came back and said that senior officers have already left and thereafter they took him to the canteen at second floor.
As per the Chief Examination of the Complainant (PW
4) (Para no. 5 of Chief Examination): "Majid came at gate no. 6 and took me to 15th floor. He called Vipin there. They both then brought me to the ground CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 34 of 64 floor on the pretext of meeting with senior officer........... and told me he was in a meeting and that they had already talked to him about my case".
As per the crossexamination of the Complainant (Para No. 12 of the crossexamination): "When I made a call from gate no. 6 of civic centre both the accused came there. Thereafter they took me to the 15 th floor..... I was told by the accused Vipin that senior officer is busy in some meeting at 15th floor."
Contention of Ld. Defence Counsel: The contradiction in the complaint, chief examination and the crossexamination of the complainant with respect to the meetings and events which had allegedly taken place on 31.01.2017, clearly reflects that it was a concocted story, and there was no iota of truth about the said meeting, and raises serious question about the foundation of the prosecution case itself.
2. Presence of accused Vipin and his meeting with complainant at his residence on 31.01.2017: PW10 Shalini Arora (Chief Examination Para5): "On 02.02.2017 accused Vipin Kumar came to me and informed that he was going to visit the area, upon which I had merely asked him to verify the existence of the properties in the area as mentioned in the complaint."
CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 35 of 64 PW12 Ramesh Kumar (Crossexamination Para24): "I cannot say if Vipin was having any knowledge about any income tax proceedings against the complainant on 31.01.2017. Contention of Ld. Defence Counsel: This clearly reflects that on 31.01.2017 Vipin had no knowledge about the complainant or any case pending against him with income tax department and this in itself falsifies the story about the visit of Vipin at the place of complainant on 31.01.2017. This hits at the root of the case and it also gets corroboration, as prosecution did not produce the call detail record of Vipin's mobile phone along with the location chart to establish the presence of Vipin at the house of complainant.
3. Pre Verification Proceedings: PW4 Dinesh Kumar (Para16 of the cross examination): "I met R.K. Sharma for the first time on 03.02.2017 in CBI office. I met him in the CBI office when I reached to CBI on 03.02.2017 as he was already present there".
PW6 R.K. Sharma (Para1 & 2 of the Chief Examination): "In year 2017 I was working as Vigilance Inspector in SDMC...... on 03.02.2017 at about 10.00 am I attended CBI Office as per direction of my seniors".
Para 31 of his crossexamination: CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 36 of 64 "On 03.02.2017 I had received a letter from the CBI to join the CBI office ............. I do not remember as to when I had received the said letter. I had received the said letter one or two day prior to 03.02.2017......... on 03.02.2017 I reached the CBI office after lunch at around 22.30 pm."
PW10 Ramesh Kumar (Para21 Crossexamination): "The complaint was handed over to me for verification at about 3.30 pm."
PW10 Ramesh Kumar (Para3 Chief Examination): "Thereafter I along with the complainant came in my cubicle. The duty officer was directed to provide one independent witness".
Contention of Ld. Defence Counsel: As per the prosecution case complainant PW4 came to CBI office for the first time on 03.02.2017 with the written complaint and after meeting S.P. CBI he had given a written complaint on the same day on which the proceedings was initiated and the independent witnesses PW6 called from his department.
A bare perusal of testimony of these witnesses creates a serious doubt and and major dent in the very foundation of the prosecution case as to whether R.K. Sharma was really called to act as an independent witness or just his signatures had been taken on the memos at later stage.
CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 37 of 64
4. Verification Memo and FIR: PW4 Dinesh Kumar (Para18 of crossexamination): "I do not remember whether Inspector Harnam Singh was part of the team or not. Inspector Pannu was part of the said team."
Contention of Ld. Defence Counsel: During trial, prosecution has examined certain witnesses to prove verification memo and FIR, the portion of testimony of these witnesses are reproduced hereunder, under different sub topics.
On the point of number of persons who had participated in the proceedings of verification: As per the case of prosecution and verification memo, the complainant, Inspector Ramesh Kumar and independent witness R.K. Sharma participated in verification proceedings. 4A. Verification Memo: PW6 R.K. Sharma (Page2 of examinationinChief): "On 03.02.2017 at about 10.00 am I attended CBI office as per direction of my senior".
(Page31 of crossexamination): "On 03.02.2017 I had received the letter from CBI to join the CBI office ............ on 03.02.2017 I reached the CBI office after lunch at around 2.30 pm......... I had met complainant, inspector Ramesh, Pannu and some other inspector there".
CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 38 of 64 (Page32 of crossexamination): "I had not seen copy of complaint on 03.02.2017. I had never seen the copy of complaint till date ............... we have left the CBI office for the spot at around 3.00 to 4.00 pm." Contention of Ld. Defence Counsel: These are totally contradictory to the prosecution version about the verification proceedings.
(Page35 of crossexamination): "The DVR was in sealed condition when it came to the hand of I.O."
Contention of Ld. Defence Counsel: This shows the tutoring of witness by the CBI on the point of sealing of exhibits.
(Page38 of crossexamination): "It is correct that all the documents prepared on 03.02.2017 were signed by me, the complainant, inspector Pannu, Inspector. Ramesh and other CBI officials."
Contention of Ld. Defence Counsel: This document had to be verification memo but the memo which is available on the court record does not contain the signature of Inspector Pannu and other CBI officials which raises the suspicion about the verification memo.
(Page39 of crossexamination): "I had read the document signed by me on 03.02.2017.
CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 39 of 64 The document did not mention the bribe amount negotiated between the complainant and the said Income Tax Officer. "
Contention of Ld. Defence Counsel: The verification memo contains the said details. (Page41 of crossexamination): "I had not gone inside the building of Income Tax on 03.02.2017. The complainant had also not entered in the building of Income Tax on that day.
Inspector Pannu had enquired from the complainant about the conversation between him and accused persons just after he had reached the vehicles. The complainant informed inspector Pannu about the conversation. Thereafter, the DVR was taken by Inspector Pannu and it was switched off. "
PW14 Inspector Vikas Pannu: "I was not present along with complainant and Inspector Ramesh Kumar on 03.02.2017 during verification proceeding. I had not met complainant on 03.02.2017". Contention of Ld. Defence Counsel: As per the case of prosecution Inspector Pannu was neither the part of verification memo proceedings nor present there.
(Page44 of crossexamination): "After reaching the CBI office from the spot, voice sample of the complainant and my voice was recorded. No other proceeding had taken place on that day, no document was CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 40 of 64 prepared in the CBI office after we have returned back from the spot on 03.02.2017".
Contention of Ld. Defence Counsel: It completely destroyed the verification memo as well as Q 1 because the voice specimen allegedly had taken prior to leaving CBI office for spot.
PW12 Ramesh Kumar (Page21):
"Inspector Vikas Pannu was not associated during the verification proceeding.
(Page26) "Inspector Pannu did not come at the spot at the time of verification on 03.02.2017.
Contention of Ld. Defence Counsel: Contrary to the deposition of complainant and independent witnesses.
(Page31) "I do not remember that on 03.02.2017 complainant himself went inside the building or the accused came down and took him with them inside building ............. I had not seen the complainant or independent witness to enter into the building on 03.02.2017...... Vol. The complainant disclosed that accused Majid Khan came near gate no. 5 and took him to 15th floor".
Contention of Ld. Defence Counsel: As per case of CBI on 03.02.2017 the complainant never CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 41 of 64 went to 15th floor of I.T. building. This creates serious doubt on the events allegedly taken place on 03.02.2017.
5. Chronic Litigant: Shalini R. Arora PW10: "A demand of Rs.22.5 Lakhs was raised against Dinesh Kumar in the earlier scrutiny i.e. prior to 02.02.2017 for the assessment year 200910".
Dinesh Kumar PW4: "I used to file income tax return before 2017. There are many cases of property pending in Saket Court in which either I am plaintiff or defendant."
6. Fair and Proper Enquiry: PW10 Shalini R. Arora (Page10) "CBI did not enquire from me about any person having post additional."
PW12 Ramesh Kumar (Page21) "I did not enquire from the complainant whether he wants to deposit the legitimate demand of government............. I did not ask the complainant about the specific post of the accused person.
(Page22) "I did not enquire from the complainant regarding the name of designation of senior officer mentioned in his CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 42 of 64 complaint".
(Page24) " I cannot say Vipin was not having any knowledge about any income tax proceeding against the complainant on 31.01.2017."
(Page25) "I did not enquire from the complainant that in whose office he visited on 31.01.2017 in income tax office. I also did not enquire from him that whether he made any entry in the visitors registered maintained at income tax building".
(Page29) "No enquiry was made by me from the complainant about any 'madam' which word is appearing in the transcript dated 03.02.2017."
(Page30) "It is correct that the transcription reflects the word "additional" and "Madam". No verification was conducted with respect to "Additional" and "Madam"........ I did not make any enquiry about the "kagaj patar" from the complainant which is appearing in the transcript ................... I did not enquire from the complainant if he talked to accused Vipin and Majid on phone or physically from 31.01.2017 to 03.02.2017." PW13 H.V. Attri (P19) "I do not remember whether I had enquired from the CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 43 of 64 complainant if he was income tax assessee. I also do not remember if I had enquired from the complainant about his meeting with Majid prior to 31.01.2017."
(Page20) "I do not remember if I had made any enquiry from Ms. Shalini Arora or any other person regarding portion B to B1 of para 4 of her statement exhibit PW10/DA"
(Page27) "I do not remember if I had enquired from the complainant regarding the enquiry made by the accused Majid Khan in relation to rental house."
(Page28) "I had not gone to the Civic Centre or residential complex along with the complainant after this case was assigned to me."
(Page29) "I had not recorded the statement of officials of CFSL who had prepared the copies of aforesaid exhibits."
(Page31) "I do not remember if I had required from the complainant regarding the documents (Kagaj Pattar) which he was suppose to bring and referred to in the transcript."
(Page33) "I do not remember if I had inquired from the complainant as to which place or room on the 15th floor of Civic Centre, he CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 44 of 64 had visited on 31.01.2017."
(Page37) "I had not asked for the spectrograph of the voice comparison from CFSL."
(Page38) "I do not remember whether I had enquired from the SP, TLO or the verification office as to why the FIR not registered on 03.02.2017".
Contention of Ld. Defence Counsel: As per the case of CBI, Vipin touched the money and thereafter gave it to Majid, and after their apprehension, hand washes of both hands of both accused had been taken and kept in four bottles. The bottles were seized at the spot and slips containing the particulars of the case were pasted at the spot itself, on the contrary it has come into the depositions of the witnesses as under: PW4 Dinesh Kumar (Para 3 10.10.2019 Chief Examination).
"Two such glass bottles containing solutions which has turned red and which had been transferred from tumblers, were sealed after putting some mark over those."
(Para43 of crossexamination) "I did not sign any document or any other article at the spot on 06.02.2017 after the apprehension of accused."
CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 45 of 64 (Para44 of crossexamination) Q. whether Vipin took any money from you and kept the same with him?
Ans. "He directed me to give such money to accused Majid and Majid kept the same".
Contention of Ld. Defence Counsel: It means that Vipin had never touched the money then how his hand wash could turn pink or red.
(Para16 of Chief Examination) "Thereafter when I extended the money to Majid, though he touched the money, but he did not accept, and asked me to give it to Vipin, thereafter I gave money to Vipin". Contention of Ld. Defence Counsel: This is totally contrary to the version of CBI, and in this manner, the money could never be recovered from Majid and this demolishes the entire case of CBI.
(Para1 of the Chief Examination dated 10.10.2017) "I want to correct myself, yesterday I have claim that .............. I want to clarify that money was initially offered to Vipin, he asked to hand over the same to Majid Khan. Contention of Ld. Defence Counsel: This witness deposed the above lines on the specific direction and tutoring of the CBI. It is quite clear from the CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 46 of 64 pattern of deposition given by the complainant during his chief examination on different dates, while improving and correcting himself, on specific tutoring of the CBI.
(PW6 R.K. Sharma Page73) "I do not remember how many bottles were prepared at the spot. I do not remember in which utensil the hand wash of accused persons was taken. The solution was being poured on the hands of accused persons while taking their hand wash.
(PW7 Sh. Ayodhya Prasad Page38) "Two bottles of hand wash were prepared at the spot".
(Page 42 & 43) "I had signed on the cloth and not on the paper". Contention of Ld. Defence Counsel: As per the CBI case four bottles were prepared. The witness stated that the cloth does not bear his signatures but the paper slips affixed on the bottles bear his signature.
7. Handing over memo: (PW6 R.K. Sharma Page5 of the examination in chief) "The amount of Rs.40,000/ was kept by complainant in his jacket".
Contention of Ld. Defence Counsel: As per the handing over memo the same was put by PW7 Ayodhaya Prasad into the complainant's jacket. (PW6 R.K. Sharma Page46 & 47) CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 47 of 64 "We had left the CBI office for going to the spot at about 11/11:15 am....... we reached at the spot at around 12.30 pm". Contention of Ld. Defence Counsel: As per the handing over memo the proceedings started at 11.45 am and the team left the CBI office at around 1.50 pm. (PW6 R.K. Sharma Page53): "I cannot tell the name of CBI official who had handed over the G.C. notes to the complainant in CBI office. The G.C. notes were kept by the complainant in his pocket". Contention of Ld. Defence counsel: As per the case of CBI, it was PW7, who put the money in the pocket of the complainant.
(PW7 Sh. Ayodhya Prasad Page41) "The CBI officials did not mention anything about Majid to me in CBI office........ I did not come to know about the name and designation of the income tax officer who was supposed to reduce the proposed penalty either in CBI office or during the entire day of 06.02.2017..... I do not remember the name of official who had brought Rs.40,000/ from Malkhana".
(Page41) I had not made any enquiry from the complainant on 06.02.2017 in CBI office.
(Page47) "The amount of Rs.40,000/ was handed over to the CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 48 of 64 complainant 24 minutes prior to leaving the CBI office for the spot".
(Page48) "No document was prepared in CBI office after I had put the money in pocket of the complainant". Contention of Ld. Defence counsel: As per the case of CBI after putting the money handing over memo was prepared.
(PW7 Sh. Ayodhya Prasad Page49): "The said voice of mine has been recorded in a CD. The same was played before me. Voice of Sh. R.K. Sharma was also recorded before leaving for the spot in the same CD".
Contention of Ld. Defence counsel: No voice was ever recorded in the C.D. (PW7 Sh. Ayodhya Prasad Page51): "No document has been prepared in CBI office prior to leaving for the spot from CBI office.......... the currency notes were hand written in a single paper".
(Page56) "The complainant was not provided any mobile number to give the signal.
Contention of Ld. Defence counsel: Contrary to the handing over memo.
(Page58) CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 49 of 64 "I do not remember whether I was shown copy of FIR on 06.02.2017 but I was shown the complaint. In this case the FIR has been registered on 03.02.2017.
Contention of Ld. Defence counsel: Shows the manipulation in the FIR, which was registered on 06.02.2017.
PW12 Ramesh Kumar (Page34) "No single page document depicting the distinctive numbers of GC notes produced by the complainant was prepared prior to leaving the CBI office for spot on 06.02.2017 except handing over memo".
Contention of Ld. Defence counsel: This is contrary to the deposition of complainant and independent witnesses.
PW12 Ramesh Kumar (Page37) "The FIR was shown to the complainant and independent witnesses before leaving for the spot on 06.02.2017". Contention of Ld. Defence counsel: This is contrary to the deposition of complainant and independent witnesses. As they have never seen the FIR.
8. Malkhana PW12 Ramesh Kumar (Page24): "It is correct that I have not mentioned the entry number in the verification memo as well as in my statement.
CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 50 of 64 I did not mention the malkhana receipt number in my verification memo or in my statement.................... I did not tell the name of official who issued the CBI seal to me."
(Page27) "I did not mention about any entry of memory card in verification memo as well as in my statement. It is correct that fact of depositing the memory card in Malkhana is not mentioned either in verification memo or in my statement."
PW13 H.V. Attri (Page21) "I have not recorded the statement of I/C Malkhana with whom the exhibits were deposited. I have not placed on record the receipts through which exhibits were deposited and taken out from Malkhana."
(Page25) "It is correct that the entry number vide which the DVR and SD Cards were procured from the Malkhana were not mentioned in verification memo or handing over memo."
(Page30) "I cannot tell the date on which TLO had deposited the exhibit i.e. DVR, SD Cards, Bottles etc."
PW14 Inspector Vikas Pannu (Page28): "It is correct that handing over memo does not mention about any receipt number of receiving the memory card on CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 51 of 64 06.02.2017".
09. Recovery Memo (GC Notes, Recovery, Arrest and Events mentioned in the Recovery Memo) PW6 R.K. Sharma (Page No. 6 of Chief Examination): "Complainant handed over the bribe money to Majid and thereafter Vipin had touched the bribe money and we apprehended................".
Contention of Ld. Defence Counsel: This is totally contrary to the case of prosecution as per the case of CBI money was initially given to Vipin and who handed over the same after touching the same.
PW6 R.K. Sharma (Page No. 7 of Chief Examination): "The bribe money was recovered from Majid Khan by Inspector Ramesh Kumar or by Inspector Pannu, I had not done anything at the spot.............. no document were prepared at the spot".
Contention of Ld. Defence Counsel: As per the case of CBI he himself has recovered the bribe money from Majid and also tallied the notes at the spot.
PW6 R.K. Sharma (Page No. 28 of Chief Examination): "The currency notes recovered at the spot and were compared in our presence".
PW6 R.K. Sharma (Page No. 30 Crossexamination by Ld. Sr. P.P. for CBI): CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 52 of 64 "It is incorrect to suggest that TLO had directed me to recover the money from accused Majid and accordingly I recovered the money........."
Contention of Ld. Defence Counsel: The witness who allegedly recovered the note denied the suggestion and demolishes the entire case of prosecution.
PW6 R.K. Sharma (Page No. 57): "I had signed the arrest memo of accused Majid and Vipin at the spot i.e. residential complex.
(Page No. 63):
"Serial number of currency notes were noted down on a single paper. I do not remember if the said paper was typed or had written. He had matched the GC notes recovered from accused Majid with the said document. All the persons had signed the said single page document containing the serial number of currency note".
Contention of Ld. Defence Counsel: In the entire charge sheet there is no whisper of such kind of single paper.
(Page no. 64) "First of all the handing over memo was prepared thereafter the GC notes were tallied".
Contention of Ld. Defence Counsel: Contrary to the case of prosecution.
CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 53 of 64 PW7 Sh. Ayodhya Prasad (Page No. 27 & 33) "We started from CBI office at about 1.15 pm and reached near Gate No. 5 Civic Centre at about 1:45 PM".
Contention of Ld. Defence Counsel: As per the case of CBI they reached thee at around 2.30 pm. PW7 Sh. Ayodhya Prasad (Page No. 51) "The numbers of currency notes were hand written on a single paper. I do not remember the name of person who written the number of currency notes on the said paper. I have signed on the said paper. Complainant and Sh. R.K. Sharma had also signed on the said paper............. I do not remember who handed over the money to me or R.K. Sharma for tallying the same........... I do not know what happened to the currency notes after handing over to CBI officials". PW7 Sh. Ayodhya Prasad (Page No. 52): "Accused Vipin arrived on the spot after 35 minutes when we reached the spot. I saw accused Vipin Kumar on the first time in the residential complex ........... the complainant met Majid Khan for the first time at gate no.5 where he stopped his scooter........... the complainant and accused Majid went towards the residential complex talking to each other and had not stopped there............. almost all the CBI official were present in the said park.
CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 54 of 64 PW7 Sh. Ayodhya Prasad (Page No. 53) "When I reached in the residential complex complainant and Majid Khan were sitting under a tree towards the residential building. He was apprehended there only".
PW7 Sh. Ayodhya Prasad (Page No.57) "Accused Vipin was also apprehended inside the residential complex along with accused Majid. Again said accused Vipin Kumar was caught near the gate............... accused Vipin Kumar was caught from outside the gate".
PW7 Sh. Ayodhya Prasad (Page No.63): "The money was recovered from both the hand of accused Majid".
PW12 Sh. Ramesh Kumar (Page No. 35): "On 06.02.2017........ the CBI team along with complainant and independent witnesses reached near Income Tax office at about 13:15 hours".
Contention of Ld. Defence Counsel: As per the recovery memo CBI team reached at spot at around 2.30 pm. PW12 Sh. Ramesh Kumar (Page No. 35): "Accused Majid Khan met the complainant on the footpath opposite to gate no.5".
"I do not remember whether accused Vipin Kumar was CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 55 of 64 apprehended inside the gate of residential complex or outside".
"Accused was apprehended at about 2.152.30 pm".
Contention of Ld. Defence Counsel: As per recovery memo CBI team reached at the spot at about 2.30 pm. PW12 Sh. Ramesh Kumar (Page No. 37): "The denominations of currency notes were tallied after taking hand washes of both the accused".
Contention of Ld. Defence counsel:
Contrary to the version of independent witnesses and TLO. PW14 Inspector Vikas Pannu (Page9) "Accused Majid Khan met complainant at gate no. 5 of Civil Centre and started going towards gate no. 6 of the Civic Centre while talking with the complainant. When the complainant and accused Majid Khan reached gate no. 6 accused Vipin Kumar also came out of the building from gate no. 6 and met both of them.
(Page9) "Accused Vipin tried to leave the spot by going towards the Gate".
(Page10) "Accused Majid was holding the money in his right hand".
(Page28) "I handed over the DVR to the complainant after reaching CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 56 of 64 the spot".
(Page32) "Accused Vipin met the complainant and Majid near the gate of residential complex after they had cross the road".
(Page32) "I do not remember that complainant and accused had sat under any tree and talk to each other before apprehension .......... No trap team member had taken position in the park".
(Page33) "First notes were got tally and thereafter hand washes were taken".
(Page33) "Accused Vipin was apprehended inside the gate".
(Page36) "I did not see accused Vipin taking money from the complainant. I did not see accused Majid taking money from complainant. I do not remember whether I had seen accused Majid counting the trap money".
10. Seal PW6 R.K. Sharma (Page75) "One separate handing over memo of the seal was prepared when the seal was handed over to me on 06.02.2017. I CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 57 of 64 signed the same but I do not remember if other persons had signed it or not. No receipt of handing over memo was given to me by the CBI officials. I do not remember if there were directions on the summons issued to me to produce the brass seal. It was mentioned in the separate handing over memo that I have to bring the seal when appearing in the court".
As such Ld. Defence Counsel by the continuous pointing out of all these self contradictions on most crucial aspects of the prosecution version, indeed created much doubt about the authenticity of the prosecution story itself.
Ld. Sr. Public Prosecutor, however, tried his best to explain away all these glaring self contradictions by relying on certain principles like presumption, shifting of onus; and also appreciation of testimony of hostile witnesses. Judgments relied upon by the prosecution:
i. Vinod Kumar Vs. State of Punjab, 2015 Crl. 1442, SC.
No explanation regarding recovery by the accused; Presumption of Section 20 of PC Act; and Appreciation of evidence of hostile witness. ii. N. Narsimha Rao Vs. State of A.P. (2001) 1 SCC 691.
Presumption of Section 20 of PC Act; and Appreciation of evidence of Police Officers. iii. Hazari Lal Vs. State (Delhi Administration) (1980) 2 CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 58 of 64 SCC 291.
Appreciation of evidence of Police Officers, PC Act 1988. iv. State of Gujarat Vs. Navin Bhai Chandrekant Joshi, AIR 2018, Supreme Court 3345.
If it is established that the accused was possessing the bribe money, it was for them to explain that how that bribe money has been received by them and if he fails to often any satisfactory explanation, it will be presumed that he has accepted the bribe.
v. Mukhtiar Singh Vs. State of Punjab Crl. Appeal No. 618 of 2012.
Application of Section 7 & 13 and Section 20 of PC Act 1988.
vi. Surender Kumar Vs. State of Punjab Crl. Appeal No. 512 of 2009, DOD 06.01.2020.
Non examination of Malkhana official would not affect the case of prosecution when the sample was received by FSL with seal intact.
vii. P. Sabbaraj Vs. the State, 1995 Crl. J. 3440, Madras High Court.
Public servant taking illegal gratification, need not be proved to be done in discharge of the official duties. viii. Baldev Singh and Other Vs. State of Himachal Pradesh CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 59 of 64 (Shimla), Crl. Revision No. 190/2008, DOD 05.09.2016.
Contradiction or improvement not affecting the core of the case and are not enough to reject the evidence as a whole.
I have given my thoughtful consideration to the contentions of both - defence and the prosecution.
The principles of law enunciated in the abovesaid judgments are not disputed and with due respect the observations made therein are relevant to the respective cases therein, but no parity can be drawn to the facts and circumstances of the present case.
Judgments relied upon by the prosecution are not relevant and applicable to the facts and circumstances of the present case.
After going through the innumerable self contradictions of the most material witnesses on almost all important points as above highlighted points, the prosecution witnesses, including the complainant, have created a serious doubt about the entire prosecution story itself, right from the alleged visit of both accused at the complainant's house on 31.01.2017, verification proceedings, recovery, voice recordings and all other proceedings discussed in detail.
In fact, based on the above discussion, it can be safely concluded that testimonies of the material witnesses, including the complainant and independent witnesses, if taken in entirety, are not CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 60 of 64 sufficient to draw a conclusion of guilt of the accused persons.
Further, in view of the glaring discrepancies brought from the evidence adduced on record by the prosecution, the fact that complainant, and the independent witnesses themselves have failed to support the prosecution case, is significant.
Ld. Defence Counsel by his detailed arguments, having taken the Court through the testimony of each and every material witness, has succeeded in creating much doubt about the entire prosecution story, right from the beginning, that is, on the point of proof of demand of illegal gratification, which is the basic ingredient for the offence under Section 7 and 13(1)(d) of PC Act, the charge of the said offences against both the accused persons remain unproved.
Reference is also had to the decision in Sawal Das Vs. State of Bihar, 1974 SCR (3) 74, wherein it was observed that:
"The language of Section 106 Evidence Act does not, in our opinion, warrant putting such a narrow contradiction upon it. This Court held in Gurcharan Singh Vs. State of Punjab, that the burden of proving a plea specifically set up by an accused, which may absolve him from criminal liability, certainly lies upon him. It is a different matter that the quantum of evidence by which he may succeed in discharging his burden of creating a reasonable belief, that circumstance absolving him from criminal liability may have existed, is lower than the burden resting upon the guilt of an accused beyond reasonable doubt."
In the judgments in Satyanarayana Murthy Vs. District CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 61 of 64 Inspector of Police, State of Andhra Pradesh (2015) 10 SCC 152 and B. Jayaraj Vs. State of A. P., 2014 Cr. L.R. (SC) 445, it was clearly laid down that ingredients essential for the prosecution to bring home charges of the offences under Section 120B IPC read with Section 7 & 13(2) read with Section 13(1)(d) of the PC Act, it is only after the prosecution succeeds in discharging the burden of proof of its case, that the onus of proof would shift upon the accused persons.
Further reference is also had to the judgment in Prem Singh Yadav Vs. CBI, 2011 Law Suit (Del) 817, wherein Hon'ble Delhi High Court held, as under:
15. In the case of Dnyaneshwar Laxman (supra) also the Supreme Court held as under: "Indisputably, the demand of illegal gratification is a since qua non for constitution of an offence under the provisions of the Act. For arriving at the conclusion as to whether all the ingredients of an offence, viz., demand acceptance and recovery of the amount of illegal gratification have been satisfied or not, the court must take into consideration the facts and circumstances brought on the record in their entirety.
For the said purpose, indisputably, the presumptive CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 62 of 64 evidence, as is laid down in Section 20 of the Act, must also be taken into consideration but then in respect thereof, it is trite, the standard of burden of proof on the accused visavis the standard of burden of proof on the prosecution would differ. Before, however, the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution.
Even while invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only the touchstone of preponderance of probability and not the touchstone of proof beyond reasonable doubt."
16. Though, the accused has led no evidence in defence, but from the crossexaminations of prosecution witnesses he has satisfactorily discharged the onus laid upon him. By preponderance of probability the accused has been able to create grave doubt about the prosecution version. From the evidence as noticed above, a suspicion arises against the genuineness of the prosecution case. In the present set of facts and circumstances, it is difficult to hold that prosecution has proved its case beyond reasonable doubt.
It is also well settled principle of law that where it is possible to have both the views, one in favour of the prosecution and the other in favour of the accused, the latter should prevail (see Dilip Vs. State of M. P. [2009] 1 SCC 450 and Gagan Kanejia Vs. State of Punjab [2006] 13 SCC516].
CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 63 of 64 Remaining judgments, referred to in the submissions on behalf of CBI, are also not applicable to the facts and circumstances in the present case.
After consideration of the entire material placed on record by the prosecution, it is clear that prosecution has failed to prove its case against the accused persons beyond reasonable doubt.
Accordingly, both accused namely, Vipin Kumar and Majid Khan stand acquitted of the charges for the offences punishable under Section 7 and 13(2) read with Section 13(1)(d) PC Act 1988 read with Section 120B IPC.
Bail bonds and surety bonds stand cancelled. Sureties stand discharged.
In terms of Section 437A CrPC, accused are directed to furnish fresh bail bonds in the sum of Rs. 30,000/ with one surety each of the like amount.
File be consigned to Record Room after completion of due formalities.
Announced in open Court today on 27.02.2020 (Sujata Kohli) District & Sessions JudgecumSpl. Judge (PC Act)(CBI)/RADC/ND CBI Vs. Vipin Kumar and Another RC No. 2017A05 Page 64 of 64