Delhi District Court
Upon Maha Singh vs . State (1976 Supreme Court 449) & on 21 December, 2012
IN THE COURT OF SH. M.R. SETHI:
SPECIAL JUDGE-IV, (PC ACT) CBI: DELHI.
CC NO. 115/2008
ID No. 02401R0757162006
CBI
Versus
Hukam Singh,
S/o. Shri Diwan Singh,
R/o. Qtr. No. 60, Type-II,
PC Shalimar Bagh, Delhi ..Accused
Case arising out of:
FIR No. RC-DAI-A-2005-0056
Date of FIR : 03.10.2005
Date of Institution : 28.08.2006
Date of Final Arguments : 17.12.2012
Date of Judgment : 21.12.2012
CC No. 115/2008 Page1 of 53
JUDGMENT:
1 On 03.10.2005, the complainant M.R.V. Prasad filed a complaint before S.P., CBI, ACB to the effect that he was working with Bonanza Tours & Travels, Mumbai and had been staying in Delhi for past some days in connection with some Office work. The complainant further claimed that on that day while he was present in his room No. 303 of Raj Guest House, Paharganj, S.I. Hukam Singh Incharge of the area came there and after checking his belongings enquired about 31 Passports found in the room. It was further mentioned that S.I. Hukam Singh claimed that he would have to seize all the Passports and in case the complainant wanted back the Passports, he would have to pay Rs.2.00 lacs. The complaint further mentioned that S.I. Hukam Singh left after giving his name & mobile number on a paper slip and instructing the complainant to call him up in the evening after talking to Mumbai Office. S.I. Hukam Singh was claimed to have taken away all the 31 Passports with him. The complainant had further mentioned in his complaint that on instructions of his employer Babu, he had contacted one Shri Wasim who gave him Rs.60,000/- for being given to S.I. Hukam Singh. The complaint further mentioned that as the complainant did not want to pay bribe, he had approached the CBI.
CC No. 115/2008 Page2 of 53
2 FIR R.C. No. 56(A)/05 came to be registered on
basis of the said complaint. Pre-trap proceedings were
conducted by the I.O. Inspector Umesh Vashisht wherein two independent witnesses viz. A.K. Sarkar and V.K. Batra were associated. After the pre-trap proceedings concluded, a trap was laid whereunder the accused was allegedly apprehended after he accepted the bribe amount of Rs.60,000/- from the complainant. Post-trap proceedings were then conducted and after conclusion of investigation, charge sheet was filed in Court. On basis of allegations against the accused and material on record, charge was framed against the accused for having committed offences punishable U/s. 7 PC Act and also for offence U/s. 13(1)(d) punishable U/s. 13 (2) PC Act. Accused pleaded not guilty and claimed trial. 3 In order to prove its allegation against the accused, prosecution examined as many as 13 witnesses. Thereafter statement of accused was recorded U/s. 313 Cr.P.C. and the accused also examined one witness in his defence. Thereafter, arguments advanced by ld. PP for CBI and ld. Counsel for accused were heard.
4 PW-1 examined by the prosecution was Dr. Rajender Singh from CFSL who proved his report Ex.PW-1/2 in respect of identification of voice of the accused as contained in specimen voice cassette S-1 as compared with the questioned recording cassettes Q-1 & Q-2. He also proved report Ex.PW-1/3 of Shri Ashutosh Deo Tiwari.
CC No. 115/2008 Page3 of 53 During course of his cross-examination, witness admitted that the cassette Mark Q-1 containing telephonic talks between complainant and the accused had talks of 10 minutes 46 seconds. He claimed that infact there were two sets of recorded conversation of the total duration of 10 minutes 46 seconds. Witness admitted having received the three cassettes on 10.11.2005 alongwith Transcriptions of the questioned cassettes. Witness admitted that he did not have any formal degree or diploma in Voice Identification and had only studied 'Sound' as one of the subjects. 5 PW-2 Shri R.K. Tiwari proved call details from Bharti Airtel Ltd. in respect of Mobile No. 9818101021 for the period 01.10.2005 to 05.10.2005 as Ex.PW-2/1. He claimed that as per call details, a call had been made from 9818101021 to the Mobile No. 9891222699 on 03.10.2005 at 16 hrs.10mins.6 secs for a total duration of 305 seconds. He further claimed that another call was made from the same number to the same number at 18hrs. 13Mins. 35 seconds for total duration of 97 seconds. He further claimed that a call was received on 9818101021 at 19 hrs. 36 mins. 51 secs on the same day from Mobile No. 9871442448 with duration of 62 seconds. Witness further claimed that as per record, at the time of obtaining the connection, telephone No. 9818101021 was in the name of Shamshad S/o Hafiz.
During course of cross examination witness admitted that callers of 9818101021 and 9891222699 had not CC No. 115/2008 Page4 of 53 contacted each other through their mobile phones on 3.10.2005 prior to 3.00 PM. He further claimed that between 1.10.2005 to 5.10.2005 there had been no call between the two numbers for duration of 10 minutes 46 seconds. 6 PW-3 Shri Pawan Singh was the Nodal Officer from Idea Cellular Limited. He proved on record Call Details of Mobile No. 9891222699 for the period 1.10.05 to 3.10.05 as being Ex. PW-3/1. He further claimed that a call was received on this number from 9818101021 on 3.10.2005 at 16 Hours 10 Minutes for duration of 306 Seconds. A second call was claimed to have been received from the same number at 18 Hours 13 Minutes for duration of 98 Seconds. Customer Service Agreement Form in respect of 9891222699 was proved as Ex. PW-3/2 and he claimed that the connection was in the name of Shanker Singh S/o Hukam Singh. Copy of D.L. of Shanker Singh from record was proved as Ex. PW-3/3.
During course of cross examination by Ld. Counsel for the accused witness stated that Ex. PW-3/1 did not reflect position of the Idea mobile phone. 7 PW-4 was the complainant M. Rajavara Prasad who during course of his examination in chief reiterated allegation of prosecution against the accused. He claimed that in October, 2005 he was working as a Travel Agent with M/s Bonanza Tour & Travel, Mumbai and on 3.10.2005 was staying in Raj Guest House, Pahar Ganj, Delhi. He claimed that at about 1.00 PM SI Hukam Singh came in his room and CC No. 115/2008 Page5 of 53 introduced himself as SI Incharge of the area and claimed that he would be checking the room. Witness claimed that during the said search, 31 passports lying in his room were taken into possession by Hukam Singh. He further claimed that on asking of the accused, he informed having got the same from his Head Office in Mumbai. Witness claimed that upon this, accused informed him that it was illegal and in case accused made a complaint to his senior, he (witness) would be in trouble. Witness claimed that he requested the accused not to report to the seniors and informed that the passports were in his possession for ticketing purposes and there was nothing illegal in it. Witness claimed that the accused claimed that the act was illegal and that in case he (witness) wanted to get rid of the problem, he would have to pay Rs.2 Lacs. Witness claimed that he sought time to contact his Head Office in Mumbai and thereupon the accused gave him mobile number and left the room with the passports. Witness stated that he contacted his Boss and on his instruction he contacted one Mr. Wasim for arranging the money. It was claimed that on the same evening the accused called him up and asked if he had arranged the money or not. Witness claimed that he informed the accused that he could arrange the money by evening and thereafter he approached the CBI and narrated the entire matter to SP, CBI. Witness proved his complaint Ex. PW-4/1 made to the CBI. He further claimed having narrated the entire story to the team arranged for by the SP.
CC No. 115/2008 Page6 of 53 He further stated that while he was in CBI office the accused again contacted him on his mobile phone asking as to when the witness would go to him with the money. Witness claimed that the CBI team had recorded the entire telephonic transaction. The pre-trap memo / verification memo prepared in that regard was proved as Ex. PW-4/2. Witness claimed that during course of conversation accused had demanded Rs.60,000/- as part payment. He claimed having arranged the said amount out of which sum of Rs.50,000/- was in denomination of Rs.1000/- each while balance Rs.10,000/- was in denomination of currency notes of Rs.100/- each. He claimed that he had been directed to hand over money to the accused on his specific demand. A demonstration was also claimed to have been conducted in the CBI office regarding the currency notes. Witness identified his signature on the handing over memo Ex. PW-6/1. He claimed that the team then proceeded towards Pahar Ganj Area and reached near Railway Station at about 6.00-6.10 PM. He claimed that while he alongwith A.K. Sarkar went to his room in Raj Guest House, the other persons Mr. Raja Chaterjee and Mr. Batra had remained outside. Witness claimed having rung up the accused Hukam Singh informing that money was ready and claimed that accused replied that he would come within 15 minutes. Inspector Vashisth was reportedly informed about the same. He further claimed that at about 8.00 P.M. accused came to his room alongwith Manager of the Guest House and CC No. 115/2008 Page7 of 53 handed back to him the 31 Passports and asked about the money. Witness claimed having handed over money to the accused, who counted the same and thereafter kept the same in pocket of his pant. Witness further claimed that the accused also told him to hand over the balance of Rs.20,000/- to the Manager of the Guest House on the next day. Witness claimed that as soon as they went out of the room, the accused was apprehended by CBI Officers. He claimed that he had phoned up Inspector Vashisht and thereafter the CBI Officers had come to the Guest House. He further stated that after completion of the transaction, the shadow witness had come out of the room and had given the signal. Accused, it was claimed, was brought back to the room and on asking of CBI Inspector about the money, accused took out same from pocket of his pant and gave the same to the Inspector. Recovery Memo Ex. PW-7/1 was claimed to have been prepared in that regard and witness identified his signature on the same. He also claimed that Arrest cum Personal Search Memo of the accused was prepared.
After seeking permission from the Court, the witness was cross-examined by ld. PP for CBI and during course of such cross-examination, witness admitted that his statement was recorded by CBI Officers. He denied the suggestion that Digital Recorder alongwith one Compact Cassette Recorder and two sealed blank cassettes were arranged for transferring the recorded conversation. He CC No. 115/2008 Page8 of 53 claimed that the Digital Cassette Recorder was played and it confirmed that it did not contain any pre-recorded voice. He admitted that formal voices of both the independent witnesses were then recorded in the Digital Recorder which was then given to him with the direction to switch it 'ON' before entering into conversation with the accused. He further admitted that on asking of CBI Officers, accused claimed that he had neither demanded nor accepted any money from the witness. He admitted that right hand fingers and left hand fingers of the accused had been washed in two separate colourless solutions both of which turned pink. The solutions were claimed to have been transferred in two separate glass bottles with marking of 'RHW' and 'LHW' on which paper slips were pasted and signed by both the independent witnesses. Witness further admitted that Shri V.K. Batra was asked to recover the tainted bribe amount from the left side front trouser pocket of the accused and the same was then recovered. He further admitted that the numbers of the currency notes were tallied with those already recorded in Annexure-A to Ex. PW-6/1 and found to be correct. Witness identified the currency notes Ex. P-1 (1 to 50) and Ex. P-2 (51 to 150). Wash of the left side front trouser pocket of the accused was also claimed to have been taken in the colourless solution which turned pink. The solution was claimed to have been transferred in a glass bottle which was marked as 'LSFTPW'. He admitted that the bribe amount CC No. 115/2008 Page9 of 53 alongwith the three bottles were taken into possession vide Memo Ex. PW-7/1 prepared at the spot. The Digital Recorder was also claimed to have been taken back by the CBI Officer, the recorded conversation played and heard, and then transferred into two normal audio cassettes by Inspector Prem Nath. One of the cassettes was claimed to have been sealed with the CBI seal in a cloth wrapper. Witness admitted that both the independent witnesses signed on the cloth wrapper as well as the slip pasted on the cassette. He admitted that 31 Passports alongwith Visa had been seized vide Memo Ex. PW-4/3. He further admitted that seal after use was handed over to A.K. Sarkar for safe custody. Hotel Register of Guest House was also claimed to have been seized vide a separate Seizure Memo. Witness identified his entry at Srl. No. 1162 page No. 117 of the said Register. Entry was proved as Ex. PW-4/4. The paper slip on which the accused allegedly had given his telephone number was proved as Ex. PW-4/5. Witness also identified his signature on the Specimen Voice Recorded Memo Ex. PW-4/6. He claimed having received back the 31 Passports vide Memo Ex. PW-4/7. Photocopies of the Passports were identified by the witness as Ex. PW-4/8. When the cassette Q-2 was played in Court, witness identified the voices contained therein as reflected in the Transcript Ex. PW-4/9. He also identified voice as reflected in the Transcript Ex. PW-6/4 in respect of the cassette Ex. Q-1. Witness further claimed that CC No. 115/2008 Page10 of 53 at the relevant time one person was sitting with him in his room and on enquiry by the accused about the said person, witness told the accused that the said person was his partner and it was he who had brought and given the money. 8 During course of cross examination by Ld. Counsel for the accused, witness claimed that authorization letter had been issued to him by his employer for carrying passports. He claimed that he had not brought the said letter and was not carrying the same with him at the time of incident also. He claimed that name of his wife was Indra. He further claimed having reached Delhi one week prior to the trap. When register Ex. PW-7/DA, page No. 117, entry No. 1162 was shown to the witness he admitted that name of one Mrs. Laxmi was mentioned there. He denied the suggestion that said Mrs. Laxmi was living with him in the Hotel. He claimed that he did not know who said Laxmi was. He admitted his signature at point Mark-A against entry Sl. No. 1162. He further admitted that some passport holders were also staying in several rooms in the hotel and some of them were females. Witness claimed that he had brought the passports for booking of air tickets. He admitted that air tickets are booked after issuance of visa. He further admitted that all the passports revealed that visas affixed were granted at Mumbai. Witness claimed that on 3.10.05 accused came to his room at about 9.00-9.10 AM. He did not remember whether the accused was alone or was accompanied by CC No. 115/2008 Page11 of 53 someone at that time. He denied the suggestion that accused had not taken any passport from him or had not made any demand of bribe. He denied the suggestion that he had told the accused to come in the evening so that he could call the passport holders and offer his explanation as to why their passports were lying with him. He further denied the suggestion that he had apprehension of arrest in case he was not able to offer sufficient explanation for possession of various passports. He claimed that he could not identify Mr. Wasim even if his photograph is shown to him. He denied knowledge of the fact that Wasim used to do work of Tour & Travels or was involved in illegal human trafficking. He denied the suggestion that he had no concern with the Sim card of 9818101021. Witness claimed that he did not know any Shamshad S/o Hafiz. Witness denied the suggestion that his employer Babu had asked him to contact Wasim who had contacts with CBI. He further denied the suggestion that he was accompanied by Wasim and some Shyam when he went to CBI office. He denied the suggestion that the complaint Ex. PW-4/1 was written on instructions of CBI officials. He further denied the suggestion that accused was got implicated by him at instance of Wasim. He denied the suggestion that no pre- trap proceedings were conducted in CBI office or that no telephonic talks took place between him and the accused before leaving CBI office on 3.10.2005. He claimed that when he alongwith A.K. Sarkar had gone to his room, Ms. Laxmi CC No. 115/2008 Page12 of 53 was not there in that room. He denied the suggestion that accused came to his room in the evening, not for taking money, but for making inquiry in respect of passports. He further denied the suggestion that he had tried to thrust money in pocket of accused who had refused to accept the same. He denied the suggestion that accused was falsely arrested by CBI officials or that no post trap proceedings were conducted in Raj Guest House. He further denied the suggestion that at the time of his apprehension, accused had been saying that he had been falsely implicated at instance of Wasim. He admitted that the two audio cassettes Ex. P-3 (Q-1) and Ex. P-13 (Ex. Q-2) did not bear his signature. He denied the suggestion that accused had never demanded any money from him or that no recovery was effected from person of accused. He denied the suggestion that no telephonic conversation took place between him and the accused regarding demand of money or that he was deposing falsely. 9 PW-5 A.K. Sarkar was the shadow witness who had been sent alongwith the complainant with a view to observe the demand and acceptance of bribe by the accused. During course of his testimony, he claimed that on 03.10.2005 while he was in CBI Office in connection with some other case, he and his colleague Shri V.K. Batra had been called by Inspector Umesh who took them to another room to hear some conversation which was being recorded. Witness claimed that the said recording related to seizure of some CC No. 115/2008 Page13 of 53 Passports and demand of money in that regard. He claimed that in the said conversation lastly there was a demand of Rs. 1.00 lac and time of going to the Guest House was also fixed. Witness stated thereafter about facts of the case as had been alleged by the prosecution. He claimed that when the accused came in the room in Guest House, he enquired from him (witness) as to from where he had come. He further claimed that the complainant gave him Rs.60,000/- which he (witness) handed over to the accused. He further claimed that he had told the accused that he used to work with the complainant and that they both i.e. the witness and the complainant told the accused to count the said sum of Rs. 60,000/- upon which complainant gave Rs.60,000/- to the accused who after counting the same kept the same in the left and right side pockets of his pant. It was further claimed that thereafter complainant gave the pre-appointed signal through his mobile phone while he himself gave the same by scratching his head with his hand. The witness then stated about apprehension of the accused, the recovery and proceedings that took place thereafter. He also identified his signatures on the Memos and identified the case property.
During course of cross-examination by ld. Counsel for the accused, witness claimed that he did not remember details of the other case regarding which he was present in CBI Office. He claimed that he had reached CBI Office at about 9.00 A.M. on that day. He claimed that he had been CC No. 115/2008 Page14 of 53 called upon to join proceedings of this case around 1.00 - 2.00 P.M. He further admitted that there were two people with the complainant in the room where he was taken. He denied the suggestion that no powder was applied on the currency notes or that no written work was done in his presence or that nothing happened in his presence. He further denied the suggestion that his signatures were subsequently obtained on documents after returning to CBI Office. He claimed that he could not say if the complainant or the other two persons i.e. Wasim and Shyam had travelled with him in the same Vehicle to the Guest House. He claimed that there was a Reception Counter immediately after entering the Guest House on the Ground Floor. He could not say if key of the room was with the complainant or if he took it from the Reception Counter. He denied the suggestion that neither any demand was made by the accused in his presence nor anything was accepted by him or that nothing was recovered from the accused. He claimed that he had signed some documents in the Guest House and some in Office of CBI. He denied the suggestion that all the documents were subsequently signed by him in CBI Office. He could not say whether or not signatures of the two persons who were with complainant had been taken on any document in his presence. He denied the suggestion that he was deposing falsely under pressure of CBI officials.
CC No. 115/2008 Page15 of 53
10 PW-6 Shri V.K. Batra was the other independent
witness who allegedly had joined the trap team. He during course of his deposition reiterated allegations of prosecution against the accused and identified his signatures on the documents and the case property. However, he claimed that while he alongwith some CBI Officers were sitting outside the Hotel, somebody came and informed them to go up. He further claimed having taken out money from pocket of pant of the accused but did not remember from which pocket money had been taken out. He further claimed that on that particular pocket, water was put which turned pinkish. He subsequently claimed that he recollected that the money had been recovered from left side pocket of pant worn by the accused.
During course of cross-examination by ld. Counsel for the accused, witness admitted that he did not remember anything about the first case in which he had joined investigation. He claimed having reached CBI Office at about 2.30 P.M. He denied the suggestion that no pre-raid proceedings were conducted in CBI Office or that no documents were prepared at that stage. He claimed that there were two persons with the complainant when they all left the CBI Office. He admitted that complainant and those two persons went in one Vehicle while he himself alongwith others was in another Vehicle. He claimed that it was round 11.30 P.M. - 12.00 Midnight that he was asked by the accompanying CBI Officer to go inside the Guest House. He CC No. 115/2008 Page16 of 53 denied the suggestion that he did not recover any money from pocket of accused. He denied the suggestion that he was deposing under pressure of CBI. Witness admitted that all papers were prepared after reaching the CBI Office and claimed that CBI Officer had noted down the main points and had prepared the documents in CBI Office. He admitted that he had never been called to CBI Office between October, 2005 and March, 2006. He denied the suggestion of having signed the Transcription at instance of CBI Officers.
To a Court Question, witness stated that the two persons who were accompanying the complainant while leaving the CBI Office had not been seen by him in the room of the Guest House in question.
11 PW-7 Ranjit Jha during course of his examination in chief claimed that on 3.10.2005 he was working as Manager in Raj Guest House and that the accused used to come there for checking the Guests Register maintained in the Guest House. He claimed that on 3.10.2005 also the accused came. Witness identified signature of the accused on the register (Ex. PW-7/1) at page No. 118 in this regard. He further claimed that the accused enquired from him as to why R.V. Prasad had been staying in Room No. 303 for a long time. Witness claimed that he told the accused that the accused could check the room. He claimed that he sent one of his staff members alongwith the accused to the said room and as the said checking was taking a lot of time, he himself CC No. 115/2008 Page17 of 53 also went there. Witness claimed that on going there he saw 31 passports lying in a plastic box. The passports were claimed to have been taken by the accused and at that time complainant was asking the accused Hukam Singh to accept Rs.5000/- - Rs.6000/- and release the passports. Accused reportedly refused the said offer and went away with the passports. He claimed that Prasad and accused did exchange telephone numbers. Witness claimed that thereafter he went off to sleep as he had been on night duty. He further claimed that at about 7.30-7.45 PM he was woken up by room boy Boby Suleman who claimed that Hukam Singh had come and had gone to Room No. 303. Witness claimed that he went to the said room and found the door bolted from inside. He claimed having pressed the room bell and saw the accused, Rajvara Prasad and one other person sitting there. As per the witness talk was going on amongst them regarding money transaction and there was initial talk of 1.5 Lac - 2 Lac which was reduced to Rs.80,000/- and finally to Rs.60,000/- which amount was paid by complainant Rajvara Prasad to the accused. Accused was claimed to have put Rs.50,000/- in left side pocket of his pant and the remaining Rs.10,000/- in the right side pocket. Witness claimed that when accused came out of the room, he was apprehended by 3-4 CBI officers present there and Boby Suleman and he himself were beaten by CBI officials. He further stated that accused was taken inside room No. 303 where some CBI officers took out money CC No. 115/2008 Page18 of 53 from his pockets. Handwashes of accused were claimed to have been taken and the pink liquid kept in a bottle. Witness claimed that S.P. Shri Bhupinder Singh also came there and made enquiries regarding visit of the accused to the Guest House. Witness identified his signatures on documents and also claimed that his statement was recorded U/s. 164 Cr.P.C. Witness proved the statement as Ex.PW-7/2.
After seeking permission from the Court, witness was cross-examined by ld. PP for CBI and during course of his such cross-examination, witness admitted that money had been taken out from pockets of pant of the accused by one V.K. Batra. Witness volunteered that he did not know whether Shri Batra was a CBI Officer. He further admitted that both hands of the accused were separately washed and the hand washes kept in separate bottles. Left side front trouser pocket wash was also claimed to have been taken. He further admitted that the Digital Recorder was played and conversation heard and transferred onto another cassette Q-2. The 31 Passports were claimed to have been seized by CBI vide a separate Memo.
During course of cross-examination by ld. Counsel for the accused witness admitted that some papers had been given to him for being read before he came to the Court. However, he denied the suggestion that he had been pressurized by CBI. Witness claimed having informed owner of the Guest House regarding visit of the accused to Room of CC No. 115/2008 Page19 of 53 the complainant. He admitted that the word 'wife' was not written in the entry at Srl. No. 1162 (Ex.PW-4/4). He further admitted that as and when accused came to the Guest House, he used to check the Register Ex.PW-7/DA or other Hotel Register and also used to sign the Register against the last entry checked by him. He further admitted that accused used to make enquiry only in respect of guest about whom he used to have a doubt and not each and every guest. He claimed that Bobby Suleman had been asked to accompany the accused when he went to room of the complainant. He further claimed that he himself had gone up after about 10 minutes. He claimed that when he went to room of the complainant, the accused was enquiring from the complainant about the Passports from outside the room. Witness denied the suggestion that accused had not taken Passports with him and rather claimed that accused left the Guest House after taking the Passports. Witness admitted that his statement was recorded by CBI Officer about 1 to 1 ½ year after the date of incident. It was claimed that no other guest staying in other rooms had been called upon to join the proceedings. He denied the suggestion that no recovery of Rs.60,000/- was effected in his presence. He claimed that the writing work was done at Reception of the Guest House. He further stated that he had been advised by CBI staff to give his statement U/s. 164 Cr.P.C. Witness admitted that Inspector Kaushal Kumar Jha was his maternal Uncle and was working in CBI at the CC No. 115/2008 Page20 of 53 relevant time. He denied having given his statement U/s. 164 Cr.P.C. at instance of his said Uncle. He denied the suggestion that no proceedings took place in his presence. He further denied the suggestion that the Hotel owner Shri Goyal had assured the accused that the complainant would produce the Passport Holders in the evening. He further claimed that CBI Officers could not interrogate Bobby Suleman since he had run away on account of beatings given by CBI officials.
12 PW-8 Shri Alok Kumar proved the Sanction Order Ex.PW-8/1 vide which he had accorded sanction for prosecution of the accused.
During course of cross-examination by ld. Counsel for accused, witness denied the suggestion of having received a draft Sanction Order or having merely put his signature thereupon. He did not remember the date when the relevant documents were put up before him. He denied the suggestion that he had not applied his mind before granting sanction or had mechanically accorded sanction in this case. 13 PW-9 Inspector Umesh Vashisht during course of his examination-in-chief reiterated allegations of prosecution against the accused. He deposed about the pre-trap, trap as well as post trap proceedings. He also proved his signature on documents prepared in the case. He also proved the Rough Site Plans Ex.PW-9/1 & 2 and also the Arrest cum Personal Search Memo Ex.PW-9/3. Specimen writing of CC No. 115/2008 Page21 of 53 accused claimed to have been taken on 04.10.2004 was proved as Ex.PW-9/4.
During course of cross-examination by ld. Counsel for the accused, witness claimed having met the complainant for the first time in Office room of the S.P. He claimed that telephonic conversation between the complainant and the accused had been recorded prior to registration of FIR but he could not tell the exact time in that regard. He claimed having received copy of FIR at about 3.30 - 3.45 P.M. He could not say if as per CDR first telephonic talk between accused and the complainant took place at about 4.10 P.M. on 03.10.2005. Witness claimed that he did not make any enquiry from Wasim from whom the complainant claimed to have brought Rs.60,000/- to be paid to the accused. He claimed that he did not make any enquiry as to in whose name the Mobile No. 9818101021, which was used by the complainant, was registered. He denied the suggestion that no conversation took place between complainant and the accused from the said telephone and hence none was recorded. He further denied the suggestion that the cash amount of Rs.60,000/- had been provided to the complainant from secret fund of CBI. He denied the suggestion that no pre-raid proceedings were ever conducted. He denied the suggestion that he had never gone to Third Floor of the Guest House or had not heard any conversation taking place in Room No. 303. He further denied the suggestion that the Recovery Memo CC No. 115/2008 Page22 of 53 Ex.PW-7/1 as well as all other documents were subsequently prepared in Office of CBI where signatures of witnesses were obtained. He admitted that factum of pant of the accused having been seized was not mentioned in Ex. PW-7/1. However, he denied the suggestion that no pant of accused had been seized or that the same had been planted upon him. Witness claimed that the DVR was taken back from the complainant within 5-10 minutes after CBI team entered the room and that it had been taken back prior to hand wash of the accused. Witness admitted that as per recovery memo Ex. PW-7/1 factum of the DVR having been taken back from the complainant has been so mentioned after hand washes and pant wash were taken. Witness admitted that he had not prepared any transcript of any cassette recording in this case. No permission from Ld. Magistrate concerned was claimed to have been taken before taking voice sample or specimen handwriting of the accused. He claimed that the paper slip Ex. PW-4/5 was not sent to FSL for comparison. He further admitted that signature of accused did not appear on the specimen voice recording memo (D-9 - Ex. PW-4/6) and that it was not mentioned therein that accused had refused to sign. He denied the suggestion that all cassettes had been fabricated and manipulated. He claimed that he had not called the passport holders to enquire as to for what purpose the passports had been handed over to the complainant. Witness claimed that the dark pink color polythene bag which CC No. 115/2008 Page23 of 53 was being carried by the accused when he reached entry gate of Guest House had never been seized. He further claimed that Mr. Reddy whose name found mentioned on paper slip stapled to the cardboard box containing passports, was never interrogated by him. He claimed that he could not say whether or not the cardboard box had been seized by him. (Assistant Malkhana Incharge HC Narender on being asked claimed that there was no cardboard box in the case property).
The witness was re-examined by Ld. PP after seeking permission from court and during course of his re- examination witness proved the FIR Ex. PW-9/5. 14 PW-10 Shri V.K Khanna proved handwriting report Ex.PW-10/A regarding handwriting of the accused on the register Ex. PW-7/DA. He was not cross examined. 15 PW-11 Shri P. Nath proved his report Ex.
PW-11/1 in respect of the washes. He claimed that the exhibits gave positive results for phenolphthalein and sodium carbonate.
During course of cross examination witness claimed that he could neither affirm nor deny that CFSL is a part of CBI. However, he volunterred that CFSL had a separate Director. He denied the suggestion of having given the report at behest of CBI.
16 PW-12 Inspector G.K. Pradhan stated that investigation of this case was entrusted to him vide order dated 21.10.2005 passed by Ld. Court of Ms. I.K. Kochar, CC No. 115/2008 Page24 of 53 Special Judge (as Her Lordship then was). He claimed having got sent the washes and handwriting of accused to CFSL for examination. The washes were claimed to have been sent vide forwarding letter Ex.PW-12/A and the writings vide forwarding letter Ex.PW-12/B. He further stated about having sent cassettes to CFSL vide forwarding letter Ex.PW-12/C. He further deposed about other steps taken by him during course of investigation of this case.
During course of cross-examination by ld. Counsel for accused, witness claimed that he did not remember the exact date when he started investigation of this case. He admitted that he had not called the complainant during course of his investigation and had not examined 'Wasim' to enquire as to whether or not he had given money to the complainant. Witness admitted that the CFSL Report dated 28.04.2006 mentioned about X-erox copy of Transcript having also been received in CFSL. He volunteered that the same were subsequently sent on being asked for by CFSL and copies had not been sent alongwith the cassettes. He could not tell the date in that regard. Witness further stated that the name 'Laxmi' did not crop up during course of his investigation and he could not say anything in respect of the suggestion that one 'Laxmi' was also staying with the complainant in the Hotel. Witness claimed that statement of Shri Ranjit Jha had been got recorded U/s. 164 Cr.P.C. as the witness himself desired to make a statement before Magistrate. He denied CC No. 115/2008 Page25 of 53 the suggestion that Ranjit had been pressurized in this regard. He further denied the suggestion that he had not investigated the case properly.
17 The last witness examined by the prosecution was PW-13 Shri Ashutosh Kumar who claimed having recorded statement of Ranjit Jha U/s. 164 Cr.P.C. He proved his various orders in this regard as Ex.PW-13/A, C & D and also proved his certificate regarding correctness of proceedings as Ex.PW-13/B. During course of cross-examination by ld. Counsel for accused, witness denied the suggestion that copy of statement of the witness recorded U/s. 161 Cr.P.C. was before him when he recorded the statement U/s. 164 Cr.P.C. or that he had recorded the statement only on basis of the said statement U/s. 161 Cr.P.C.
18 As no other witness was to be examined on behalf of prosecution, prosecution evidence was closed and thereafter statement of accused was recorded U/s. 313 Cr.P.C. without oath. In his statement, the accused denied all the allegations of prosecution against him. He claimed that on 03.10.2005 when he had gone to Raj Guest House during course of his official duty and had checked the Guest Register, he found a group of girls from Mumbai staying there. He claimed that during those days Bar Clubs of Mumbai were being closed and Bar Dancers were coming to Delhi, and in order to verify genuineness of identity of those girls, he asked CC No. 115/2008 Page26 of 53 the Manager to show him the girls. He further stated that the Manager informed that the person staying in Room No. 303 had brought those girls. Accused further stated that on his asking, Ranjit Jha took him to Room No. 303 where complainant was found alongwith a lady whom he claimed to be his wife. Accused claimed that on asking name of the lady, the complainant gave a name different from the name mentioned in the Register. He further stated that on his further enquiry, the complainant claimed that the girls were Nurses who had collected to go abroad. Accused claimed that on his asking for the Passports, he found Visa for Kuwait issued from Bombay on the Passports. Accused claimed that he informed the complainant that the Passports would be returned back to him only after he showed certificate regarding the girls being Nurses. He claimed that the complainant then showed him his ID Card issued from Bar Association of Hyderabad and claimed that he was an Advocate and that he (accused) could not take away the Passports. The accused further claimed that he came downstairs with the Passports and the complainant and the lady followed him. He further stated that owner of the Guest House alongwith Day Manager Shri Mukesh and Bobby were present downstairs and the lady started weeping claiming that they had spent a lot money and would miss their flight in case he took away the Passports. Accused further claimed that the complainant stated that he would collect all the girls and show CC No. 115/2008 Page27 of 53 him the Certificates by evening and that owner and Manager of the Guest House stood guarantee for the same. Upon this, accused claimed, that he handed over the Passports to the Manager. Accused further claimed that on asking of the complainant, he gave his Mobile Number to the complainant. Accused further stated that as he had to go to Turkman Gate in the evening, he thought it fit to visit the Guest House the same evening and accordingly had called up on landline of the Guest House informing of his visit. Accused claimed that while he was climbing the stairs to reach the Reception, Bobby met him on the stairs and brought him downstairs claiming that the Passports were lying on back side of the STD Shop behind the Hotel. Accused claimed that Bobby took out the Passports from there and informed the accused that he was being called by Hotel owner and accordingly took him to back side of the Hotel. He claimed that thereafter Bobby took him upstairs where CBI Officers were already present and they caught hold of both of them. He claimed that the CBI Officers started snatching Passports from Bobby and when he resisted, he was given beatings whereupon Ranjit Jha came there and even he was beaten. Accused further claimed that Bobby somehow slipped away from there. He further stated that two persons viz. Wasim and Shyam were present alongwith the complainant. He claimed that he alongwith Ranjit were taken to CBI Office and no further proceeding was conducted in the Guest House. He further claimed that as CC No. 115/2008 Page28 of 53 'Mama' of Ranjit was a CBI Inspector, he was let off while he (accused) was falsely implicated. Accused further stated that after his release on bail, he made personal enquiry and came to know that Wasim dealt in illegal export of manpower and in connivance with CBI Officers had falsely implicated him in this case. Accused claimed that he had neither asked for any bribe, nor had accepted any bribe nor any bribe amount was recovered from his possession. He choose to lead defence evidence.
19 In his defence, accused examined DW-1 Ghanshyam. DW-1 Shri Ghanshyam Prasad claimed that in the year 2005, he was doing business of export of manpower and was also running a factory. He claimed that on 03.10.2005, he was having lunch with Shri Wasim Ahmed in his Office at Connaught Place and as soon as they finished their lunch, a tall healthy South Indian boy viz. Rajbala came there. Witness claimed that Rajbala disclosed that he was staying in some Guest House in Paharganj and that one Hukam Singh of Special Branch had checked the Guest House and recovered some Passports from him. Rajbala was further claimed to have informed that Hukam Singh had asked him to produce the Passport Holders and had also insulted him. Witness claimed that besides Wasim and himself, two or three persons were having lunch and they all claimed that it had become a matter of daily routine and complaint against such Officers should be made to CBI. Witness stated that he CC No. 115/2008 Page29 of 53 had even offered to do 'Sewa Pani' but Hukam Singh had insisted on verification of Passports. Witness thereafter stated about their visit to CBI Office and then to the Guest House. He claimed that in the Guest House, Hukam Singh had come there, on being asked by Police officials, claimed, that Passports were lying at the Reception and the same were brought by a Hotel employee and were seized by Police. He claimed that senior CBI officials also came there and after talking to Hukam Singh claimed that he should be taken to CBI Office for enquiry. He claimed that he had not seen anything else taking place and no document was prepared in his presence.
During cross-examination by ld PP for CBI, witness claimed that he did not know Hukam Singh before and had seen him for the first time on 03.10.2005. He claimed that as nobody had asked him, whatever was stated by him in Court had never been told to anybody by him. Witness claimed that his Office was at a distance of about 5 Kms. from Office of Wasim and they used to meet each other over lunch once in a week or a fortnight. Witness claimed that he did not ask Wasim who Rajbala was, or why he had come. He further stated that Rajbala had not claimed that Hukam Singh was asking for money in lieu of return of Passports. Witness claimed that he was not aware if Rajbala had made any written complaint in CBI. He claimed that he had not been compelled to accompany the team and was not made a CC No. 115/2008 Page30 of 53 member of the team by CBI Officers. He claimed having accompanied them as he was with Wasim as his friend. He claimed that he had no idea about the number of Passports but the same were about 40 to 50 in number. He denied the suggestion that he was not taking lunch with Wasim on 03.10.2005 or had never gone to CBI Office or Raj Guest House. He denied the suggestion that he knew Hukam Singh from before or that Hukam Singh had visited his Office on a number of occasions. He denied the suggestion that he was deposing falsely.
20 Thereafter, arguments advanced at the bar were heard. It was submitted by ld. PP for CBI that PW-4, 5, 6, 7 & 9 were the main witnesses around whom prosecution story revolved. As per Ld. PP, PW-4 the complainant and PW-5 shadow witness had duly proved entire case of prosecution including demand by the accused and acceptance of bribe by him. It was further submitted that the other independent witness PW-6 Shri V.K. Batra and TLO had also stated about pre-trap proceedings, trap and post trap-proceedings. Ld. PP submitted that the accused had wrongfully seized Passports from custody of the complainant and had sought bribe to return the same.
During course of his submissions, ld. PP relied upon Maha Singh Vs. State (1976 Supreme Court 449) & M.B. Joshi Vs. State (2001 Crl. L.J. 175) and submitted that factum of Hukam Singh having been found in possession of CC No. 115/2008 Page31 of 53 tainted money was sufficient to draw legal presumption of guilt against him. Reliance was also placed on V. Kasi Vs. State (2003 Crl. L.J. 3592) when it was submitted that in such like cases where an accused has been charged with for having committed offences punishable U/s. 7 as well as U/s. 13 PC Act, the accused could be convicted under both the provisions on same set of facts and it did not amount to double jeopardy. 21 Ld. Counsel for the accused on the other hand pointed out that there are six pillars in a trap case and the entire case rests on those six pillars. As per ld counsel, the pillars were demand; pre-raid proceedings; talks; acceptance; recovery and post raid proceedings. As per ld. Counsel, all these proceedings conducted by the Investigating team could be faulted with in the present case. It was pointed out that FIR in this case had reportedly been registered at 3.00 P.M. and before registration of FIR, the allegations, as per case of the prosecution had been duly verified. Telephonic talk between accused and the complainant, it was submitted was part of the verification. It was brought to notice of this Court by ld. Counsel that as per call details and witnesses examined in this regard, the first telephonic talk between the complainant and the accused took place at 4.10 P.M. on 03.102005 and not before 3.00 P.M. It was further submitted that as per call details, the conversation in cassette Q-1 should be of 305/306 seconds and not 10 minutes 46 seconds as is been claimed by the CFSL Expert. It was also pointed out that call details CC No. 115/2008 Page32 of 53 were not accompanied with a certificate U/s. 65 B Evidence Act. It was also pointed out that as per CFSL report and expert, copy of Transcript had been received in CFSL on 10.11.2005 while the Transcript itself, as per case of prosecution was prepared on 27.03.2006. While referring to ordersheets/ order of 06.07.2007 & 24.07.2007, it was pointed out that the conversation allegedly copied onto audio cassette had been sent for preparation of a Compact Disc after removing the disturbances but no copy of the Compact Disc had ever been supplied to the accused. While referring to relevant documents in this regard, it was submitted that rather, CBI had opposed the demand of the accused seeking copy of the Compact Disc. As per ld. Counsel, possibility of interpolation and concealment of material evidence cannot be ruled out. While on this, it was pointed out that as per CFSL Report the cassette Q-1 was said to contain two sets of conversation while as per the Memo (D-5) only one set of conversation had been recorded. Ld. Counsel further submitted that there was no link evidence regarding safe custody of the cassette and handwashes, as neither the MHCM was examined nor was the CBI Mallkhana Register produced in Court. Various contradictions in testimonies of the prosecution witnesses were also pointed out by ld. Counsel, who claimed that these contradictions went to root of the matter and destroyed the prosecution story. It was also pointed out that identity of seal used in this case was in doubt CC No. 115/2008 Page33 of 53 as the seal used was '80/04' while the case pertains to the year 2005. It was also submitted that as per prosecution witnesses, accused had brought the Passports in a pink coloured polythene bag but no such polythene bag, was seized nor produced in Court. Statement of PW-7 recorded U/s. 164 Cr.P.C. was also challenged by ld. Counsel who pointed out that PW-7 Ranjit Jha and Bobby Suleman had been beaten by CBI Officers after the incident and Ranjit Jha had also been taken to CBI Office as a suspect, but was let off as his 'Mama' admittedly was a CBI Inspector then posted in ACB itself. Ld. Counsel concluded that neither there was any demand nor finalization of demand nor there was any acceptance of bribe by the accused. It was prayed that as prosecution had failed to prove its case, accused was entitled to an order of acquittal.
In reply arguments, Ld. PP submitted that no major contradictions were pointed out by ld. Counsel for accused as regards testimonies of the witnesses and that the minor contradictions were bound to appear as the witnesses cannot repeat their statement in a parrot like manner after lapse of years from the date of incident. In this regard Ld. PP relied upon Syed Ahmed Vs. State of Karnataka (2012 AIR SCW 4389) and submitted that minor contradictions which did not affect the substratum of the prosecution's case were irrelevant, as what was required to be looked into was the core issue and the overall picture of events that took place on CC No. 115/2008 Page34 of 53 3.10.2005, and that this court should not give consideration to minor discrepancies. It was further submitted that the witnesses examined by the prosecution had conclusively proved its case. It was also submitted that mere absence of certificate U/s. 65 B Evidence Act would be not fatal to case of the prosecution. In this regard, it was submitted by ld. PP that in State Vs. Navjyot Sandhu (2005 SC 3820) telephone call details were looked into and accepted even in absence of Certificate U/s. 65 B of the Evidence Act. It was further submitted on basis of Mukut Bhiari Vs. State (2012 AIR SCW page 3474) that recovery having been effected from possession of Hukam Singh, burden of proof had shifted upon him to establish that he had accepted the money otherwise than as a reward or motive. It was further submitted that as Hukam Singh has been unable to substantiate his plea of false implication, conviction of accused was prayed. 22 This Court has given thoughtful consideration to arguments advanced and has also perused the records. 23 Let us first deal with the complaint and the pre- trap proceedings. It had been claimed by PW-9 Inspector Umesh Vashisht during course of his cross-examination that the telephonic conversation between complainant and the accused had been recorded prior to the registration of FIR, but he could not tell the exact time in that regard. He further claimed that copy of FIR had been received by him at about 3.30 - 3.45 P.M. This statement made by TLO assumes great CC No. 115/2008 Page35 of 53 importance when seen in light of testimony of PW -2 & 3. As per case of the prosecution, the complainant was using Mobile phone No. 9818101021 while the accused was using telephone No. 9891222699. PW-2 Shri R.K. Singh from Bharti Airtel Ltd. during course of his testimony specifically claimed that a call was made from Mobile Phone of complainant to that of the accused on 03.10.2005 at 16 hrs.10 mins( 4.10 P.M.) and the call duration was 305 seconds. PW-3 from Idea Cellular deposed to the same effect. During course of his cross-examination, PW-2 had specifically claimed that as per call details these two telephone numbers did not contact each other on 03.10.2005 before 3.00 P.M. This submission of officials of the Service Providers puts it doubt claim of the prosecution that pre-trap talks had taken place between the complainant and the accused through their Mobile Phones prior to the registration of FIR i.e. prior to 3.00 P.M. Their testimonies make it clear that the first talk that took place on 03.10.2005 between these two telephone numbers was at 4.10 P.M. This by itself puts in doubt the FIR and the pre-trap proceedings. Furthermore, as per claim of prosecution, the pre-trap proceedings had been recorded by DVR which was then converted into cassette Q-1. The said cassette was examined by PW-1 Dr. Rajinder Singh. He claimed during his examination that the telephonic talks between complainant and accused as reflected in cassette Mark Q-1 was of duration of 10 minutess 46 seconds and infact there were two CC No. 115/2008 Page36 of 53 sets of recorded conversations of total duration of 10 minutes 46 seconds. Now, it was not case of prosecution that two sets of conversations had taken place between the complainant and the accused during pre-trap proceedings nor is it case of prosecution that the total call duration was 10 minutes 46 seconds. As already mentioned hereinabove, the total call duration between the two was of 305/306 seconds which is about 5 minutes. It is apparent that the Investigating Agency has miserably faulted in this regard. Claim of the Investigating Agency is further deflated by claim of the complainant during course of his deposition in Court wherein the complainant claimed that while he was in CBI Office, accused had contacted him on his Mobile Phone asking him as to when complainant would go to him with money. As per the complainant, even this conversation had been recorded. Surprisingly, the call details of the two telephones do not reveal any such telephone contact having taken place between two telephone numbers as no call appears to have been made from telephone number of the accused to that of the complainant.
24 Claim of the complainant as made by him during course of his testimony in court to the effect that he had telephonically called Inspector Vashisth after accused had taken money from him and thereafter Inspector Vashisth came near the Guest House on foot, is falsified by call details. As per call details of the complainant, it was not the CC No. 115/2008 Page37 of 53 complainant who had made a telephone call to Inspector Umesh Vashisth but rather it was Inspector Umesh Vashisth who gave a call to the complainant at 7.36 PM. Reading of the recovery memo Ex. PW-7/1 in this regard makes an interesting reading. It was claimed by Inspector Umesh Vashisth therein that it was he who had called the complainant from his mobile phone and that too before arrival of accused in the Guest House. Infact, the space for time of call has apparently been left blank in the recovery memo and what is mentioned is that "At PM I called the complainant from my mobile phone No. 9871442448 wherein he informed that accused has not reached so far and he has received a call from accused Shri Hukam Singh that he is coming within 10-15 minutes." That being the position, as per the recovery memo, accused had made a call to the complainant (which call does not reflect in the call details) and call had been made by Inspector Umesh Vashisth to the complainant before arrival of accused in the Guest House. The recovery memo prepared falsifies deposition of complainant in court and vice- versa.
25 While on this, it would be pertinent to mention that PW-1 Dr. Rajender Singh who gave opinion regarding the questioned conversation and specimen voice of the accused, during course of his cross examination had admitted that he did not have any formal Degree or Diploma in voice identification and had only studied sound as one of the CC No. 115/2008 Page38 of 53 subjects. So much for the "Expert Witness" relied upon by the investigating agency.
26 It would also not be out of place to mentin herein that the telephone Number being used by the complainant in this case has been shown as 9818101021. As per PW-2, records of the mobile company showed it to be in the name of one Shamshad S/o Hafeez resident of Ghaziabad, UP. Complainant when examined as PW-4 during course of his cross examination specifically claimed that he did not know any person by the name of Shamshad S/o Hafeez R/o Ghaziabad, UP and that his own home town was East Godawari, Andhra Pradesh. One is left guessing as to how the investigating agency claimed that the complainant was using this telephone No. 9818101021 or how could it connect this number with the complainant.
27 The complainant in his own written complaint had claimed that the accused gave his name and mobile number on a paper slip. The said paper slip during course of trial was proved as Ex.PW-4/5. Surprisingly, during course of investigation, despite specimen handwriting of the accused having been taken, this paper slip was never sent to any handwriting expert for comparison purposes. Perhaps the investigating agency was afraid of meeting failure in this regard.
28 The complainant in his complaint further stated that he had contacted one Mr. Wasim, a friend of his CC No. 115/2008 Page39 of 53 employer and Shri Wasim gave him Rs.60,000/-. As per complainant this amount was received by him for payment to the accused as bribe money.
29 During course of his deposition in court, however the complainant claimed that during course of telephonic conversation accused had demanded Rs.60,000/- as part payment. As per him this talk was taking place in CBI office and was being recorded and thereafter CBI officers asked him to arrange the said amount of Rs.60,000/- which he arranged. This testimony of the complainant runs contrary to his claim made in the complaint. As per complaint Ex. PW-4/1, the complainant had gone to CBI office with sum of Rs.60,000/- while during course of his testimony in court complainant claimed that after he had gone to CBI office he was called upon by CBI officers to arrange sum of Rs.60,000/- which he arranged.
30 Submission made by Ld counsel for accused regarding missing link evidence requires a close look. It had been claimed by complainant during course of his deposition in court, and was case of the prosecution that two cassettes were prepared in respect of the pre-trap proceedings and while one was sealed the other was kept for investigation purposes. There is nothing on record as to where the two recorded sealed cassettes or the three bottles of washes had been kept. Neither any Malkhana Incharge of CBI Malkhana has been examined in this regard nor any Malkhana Register CC No. 115/2008 Page40 of 53 has been placed on record to show safe custody of this property. It would also be pertinent to mention herein that the cassettes had been sent to CFSL alongwith forwarding letter which came to be proved during trial as Ex. PW-12/C (D-11). One of the nature of examination required as mentioned in the said letter was preparation of two CDs after removing the disturbances. The CFSL report Ex. PW-1/2 (D-14) mentions that the audio cassettes had been sent to the Physics Division of CFSL CBI for transferring the conversation into CD (Compact Disc) and the report Ex. PW-1/3 mentions about the CD having been prepared. Interestingly, when the accused applied for supply of copy of CD the investigating agency replied that the copy was not relied upon and could not be supplied to the accused. This court is amazed at the conduct of the investigating agency and it appears that the dirt has been swept under the carpet or atleast an attempt has been made in this regard. Firstly, the request for preparation of a CD by removing disturbances leaves this court to believe that the recorded conversation could be edited/altered at behest of the investigating agency. Secondly, after the CDs were prepared, non supply of copies of those CDs by the investigating agency to the accused further supports opinion of this court that more has been hidden from the court then is being revealed.
31 Apparently, when the link evidence regarding safe custody of the alleged recorded conversation and the hand CC No. 115/2008 Page41 of 53 washes and pocket wash are missing, sanctity of seal and claim of the investigating agency regarding genuineness of samples sent to CFSL is lost. While on this, it would be pertinent to mention that as per case of the prosecution seal used on the seized articles in this case was 80/04. The TLO PW-9 had specifically claimed that seal was changed every year. The incident of the present case is of the year 2005. No explanation has come on record from the investigating agency as to why seal of the year 04 was used in the year 05. 32 Besides the aforesaid, there are some material contradictions in testimonies of the prosecution witnesses which shake case of the prosecution from the very foundation thereby making it suspect. PW-4 during course of his deposition claimed that after accepting the money from him, accused counted the same and kept money in pocket of pant of his worn trouser. He had further claimed that on asking of Inspector of CBI accused took out the money from his pant and gave the same to the Inspector. This was the story put forward by the witness during course of his examination in chief recorded on 16.12.09. It was subsequently during course of his cross examination by Ld. PP for CBI that the witness admitted that V.K. Batra was asked to recover the tainted bribe amount from left side front trouser pocket of accused which he recovered. In this regard the shadow witness A.K. Sarkar (PW-5) has claimed during course of his examination in chief recorded on 17.8.09 that complainant CC No. 115/2008 Page42 of 53 gave him Rs.60,000/- and, it was he who handed over the same to the accused. It was during course of examination in chief conducted on another date that he claimed that money was handed over to the accused by the complainant. Even then, witness claimed that accused kept the same in the left and the right side pockets of his pant. He further went on to state that Shri Batra recovered the bribe amount from pockets of pant of the accused. He had further claimed that inner linings of both pockets of pant worn by accused were washed. PW-6 V.K. Batra claimed that it was he who took out money from pocket of pant of accused which was worn by him, but he did not remember from which pocket the money had been taken out. During course of his examination in chief which was conducted on 13.8.2010 witness claimed that Rs.50,000/- had been recovered from right side pocket of pant whereas Rs. 10,000/- was recovered from left side pocket of pant of the accused. It was again on 11.10.2010 that he claimed that the tainted amount was recovered from left side pocket of pant worn by the accused. Interestingly, the witness during course of his cross examination came forward with a story not uttered by any other witness when he claimed that before leaving the CBI office the currency notes were wrapped in a paper where- after on which tape was pasted. PW-7 Ranjit Jha also claimed that accused kept Rs.50,000/- in the left side pocket of pant which he was wearing while he kept Rs.10,000/- in the right side pocket. He claimed that some CBI officer officer CC No. 115/2008 Page43 of 53 took out money from pockets of pant of the accused. 33 All this goes to show that different witnesses have deposed differently as regards recovery of tainted money from possession of the accused. No single concrete story in this regard has been put forward by the investigating agency. 34 There is yet another dent in the story put forward by the investigating agency. As per case of the investigating agency, pre-trap conversation/verification memo had been prepared on 3.10.05. The same was proved during trial as Ex. PW-4/2. Investigating agency wants us to believe that this was regarding conversation recorded in the cassette Q-1. A perusal of this document reveals that the complainant was asked to contact the accused in presence of two independent witnesses A.K Sarkar and V.K Batra in order to verify demand of bribe from him. Now both these so-called independent witnesses i.e. PW-5 (A.K. Sarkar) and PW-6 ( V.K. Batra) during course of their examination in chief had claimed that on 3.10.05 they were sitting in CBI office in connection with some other case when they were called by Inspector Umesh claiming that some recording was going on and they should hear the same. Both of them claimed that when they went to the room, a conversation was being recorded regarding seizure of some passports and demand of money/negotiations concerning money. Now, if PW-5 & 6 are to be believed, the conversation recorded was already in progress when they entered room. If it was so, how could CC No. 115/2008 Page44 of 53 their introductory voices be recorded in the cassette Q-1 as the transcript (Ex. PW-6/4) mentions their introductory voices before the actual recording is reflected. All this goes to show that either the witnesses are deposing falsely or the recording, transcript and the allegations are false. The manner of preparation of documents and the investigation further are reflected on perusal of the recovery memo. As per recovery memo the digital recorder which had been handed over to the complainant was taken back after the washes had been taken and bottles prepared. Surprisingly, none of those proceedings are reflected in any of the recorded conversation which has been put up for perusal before this court. PW-6 V.K. Batra during course of his deposition had claimed that all the papers were prepared after they had gone back to CBI office. He claimed that CBI officer had noted down the main points and had prepared the documents in CBI office. This by itself puts in doubt genuineness of the documents in this case as the documents, as per investigating agency were being prepared side by side while the proceedings were being conducted.
35 It has appeared on record during course of testimonies of the so-called independent witnesses that there were some other persons alongwith the complainant who had accompanied him during course of proceedings. PW-5 A.K. Sarkar in this regard claimed that there were two people with the complainant in CBI office and that he could not name CC No. 115/2008 Page45 of 53 those persons. He further claimed that he could not say if the complainant or the said two persons i.e. Waseem and Shyam were with him in the said vehicle by which they had gone to CBI office. PW-6 V.K. Batra in this regard had claimed that when they left the CBI office there were two persons with the complainant whose name he did not know and the complainant had travelled to the spot alongwith those two other persons in the same vehicle. The investigating team or the trap team, as it may be called, has nowhere put forth even an inkling regarding presence of these two persons. Not only this, this part of testimony of PW-5 & 6 has also not been challenged. This, when looked in light of defence of accused that those two persons were Wasim and Ghanshyam, assumes great importance. It is defence of the accused that he had been falsely implicated in this case at behest of Wasim. Investigating team is silent about presence or identity of these two persons.
36 PW-7 Ranjit Jha was Manager of Raj Guest House where the incident allegely took place. During course of his testimony in court he claimed that when the accused wanted to check room No. 303, he sent one of his staff members alongwith the accused. He further claimed that when accused did not come back for some time, he himself went upstairs and heard the complainant asking the accused to accept Rs.5,000/- or Rs.6,000/- and release passports. He claimed that accused refused the said offer. Witness further CC No. 115/2008 Page46 of 53 claimed that in the evening time around 7.30-7.45 PM when he again visited room of the complainant, he saw some talk taking place between the accused and the complainant. He claimed that initially there was a talk of Rs.1.5 Lacs or Rs.2 Lacs which was reduced to Rs.80,000/- and finally it was struck at Rs.60,000/- which amount was paid by the complainant to the accused. Now this was never case of the prosecution. As per case of the prosecution no bargaining had taken place when accused visited the complainant in the evening on 3.10.2005. Neither this fact is deposed to by the complainant nor is reflected in the conversation. 37 Yet another aspect which appears from the evidence on record is that the Guest House Manager Ranjit Jha alongwith Room Boy Bobby Suleman had been apprehended and beaten by CBI officer. The said Bobby Suleman, it had been claimed by the investigating agency ran away and could never be apprehended. Ranjit, it has subsequently appeared on record, had a Mama posted as an Inspector in CBI, ACB. The fact that Ranjit despite allegation to the effect that balance amount of Rs.20,000/- was to be paid to him was not even made a suspect or accused in this case and rather was made a witness whose statement was got recorded U/s 164 Cr. P.C. goes to support claim of the accused regarding his false implication in this case. 38 It would be pertinent to mention herein that the complainant had claimed that it was he who had called up CC No. 115/2008 Page47 of 53 Inspector Umesh Vashisth and thereafter two Inspector came near the Guest House on foot. A perusal of call details would reveal that no call had been made from mobile phone of complainant to that of Inspector Umesh Vashisth and rather a call was made by Umesh Vashisth to the complainant at 7.36 PM.
39 It was mentioned in the recovery memo Ex.
PW-7/1 that after accused had accepted the bribe amount, he alongwith complainant and the shadow witness (A.K. Sarkar) came out of the room No. 303 and at that stage he was apprehended by CBI team which was present outside the room. In this regard the shadow witness PW-5 A.K. Sarkar during course of his examination in chief claimed that after the accused had kept the bribe amount, complainant gave the pre-appointed signal through his mobile phone while he himself gave the same by scratching his head with his hand whereupon the CBI team alongwith Mr. Batra who all were waiting outside rushed inside the room. All this, as per claim of prosecution had taken place around 9.00 PM. The independent witness V.K. Batra on the other hand claimed that while he alongwith CBI officer was standing outside the hotel, somebody came and informed them to come up whereupon they went there. As per him, they had gone inside the guest house at about 11.30PM/12.00 midnight. TLO PW-9 Umesh Vashisth claimed that he was outside Room No. 303 when accused alongwith shadow witness and the Guest CC No. 115/2008 Page48 of 53 House Manager came out and on seeing the CBI team present outside the room A.K. Sarkar gave pre-appointed signal whereupon CBI team caught hold of accused from his wrist.
40 This apparently shows that all the relevant witnesses regarding apprehension of accused had given different story regarding his apprehension. One is left guessing as to what is the true account in this regard. 41 While on recovery memo, it would be pertinent to point out that although wash of left inner pocket of pant of the accused had been taken on basis of allegation that accused had kept the bribe money in his pant pocket, the pant in question was never seized.
42 Courts should not be oblivious of the need for caution and circumspection, bearing in mind that one can conceive of cases where an honest or strict Government official may be falsely implicated by a vindictive favour seeking person to whose demand for showing favours, or for according a special treatment by giving a go-by to the rules, the official refuses to yield.
43 It had been observed by Hon'ble Mr. Justice Ajit Bharihoke in Brahm Singh Vs. State (Crl. Appeal 413/10) that mismatch between allegation made in the complaint and evidence of prosecution led in court and non examination of material witnesses casts doubt upon the fairness of investigation and correctness of prosecution story. As CC No. 115/2008 Page49 of 53 already pointed out herein above, there are material contradictions/"mismatches" between allegations made by complainant in his complaint and the evidence whatsoever led in court. The investigating agency apparently failed to examine material witnesses like Bobby @ Suleman whose presence at the spot was admitted by the investigating agency; Inspector Prem Nath who allegedly had transferred the recorded conversation from DVR to the cassettes; Waseem who as per investigating agency was the person who had given bribe amount of Rs.60,000/- to the complainant; any official of Bonanza Tours & Travels who could prove genuineness of claim of the complainant regarding his being their employee and about his being in lawful possession of the passports; Mrs. Lakshmi who as per the hotel register was sharing the room with the complainant. Non examination of these material witnesses leads this court to draw an inference that in case they were examined, they would not have supported case of the investigating agency as has been put forth in this case. The view of this court finds ample support from the observations made in Narendra C Bhatt Vs. State of Gujarat (2009 Cr.L.J. (NOC) 604 wherein it was observed that the prosecution is not supposed to examine each witness cited, but a material witness who is required to be examined should be examined, and when a witness is not to lead evidence which can be said to be duplication in nature and such witness is competent to state CC No. 115/2008 Page50 of 53 certain additional relevant facts, then non examination of such witnesses by prosecution makes the prosecution case infirm. 44 Observations made by this court hereinabove put in doubt genuineness regarding voice identification of the accused. It was observed in Nilesh Dinkar Vs. State [III (2011) SCT 35] that courts have to be extremely cautious in basing conviction purely on basis of voice identification as it is at best suspect, if not wholly unreliable. In this regard, it may be mentioned that the link evidence regarding safe custody of the recorded conversation is missing, Compact Disc claimed to have been prepared on request of the investigating agency were never placed on record and CBI had refused to hand over copies of the same to the accused despite accused having demanded the same.
45 It would also be pertinent to mention herein that although complainant had admitted his signature on the specimen voice recording memo, he had nowhere stated about specimen voice of the accused having been recorded in his presence.
46 All the infirmities of investigating team as pointed out herein-above can be termed as minuscule as compared to the discrepancy which has been observed by this court on perusal of record and which was neither pointed out by Ld. PP for CBI nor by Ld. Counsel for the accused. As per recovery memo Ex.PW-7/1 and as per testimony of the trap laying officer, bribe money had been recovered from left side CC No. 115/2008 Page51 of 53 pocket of pant worn by the accused. Wash of inner lining of the said pocket had reportedly been taken and the pink solution then converted into a glass bottle upon which paper slip was pasted and it was marked as LSFTPW. There is nothing wrong in it. The discrepancy arises on perusal of the forwarding letter of the investigating agency which had been sent to CFSL, CBI for chemical analysis of the said wash. What appears to have been sent vide the forwarding letter Ex. PW-12/A is a bottle with a paper slip mentioning "LSPPW". Even the CFSL report Ex. PW-11/1 which confirmed presence of phenolphthalein in the solution terms it as "LSPPW". As per investigating agency, the glass bottle was labled as "LSFTPW" when its mouth was closed with a lid and a paper wrapper applied on it and seal affixed. What has infact been sent to CFSL and examined therein was the bottle with label "LSPPW". Apparently, bottle with the label "LSFTPW" had never been sent to CFSL for examination. This confirms the view mentioned herein-above by this court that genuineness of identity of the samples sent to CFSL are in doubt. It would be pertinent to mention herein that as per Recovery Memo Ex.PW-7/1, the pant worn by the accused was never seized in this case. Infact, there is no document on record regarding seizure of Pant of the accused. All this coupled with the fact that public witnesses have deposed differently regarding recovery effected from the accused, puts in doubt claim of the investigating agency regarding recovery having been effected CC No. 115/2008 Page52 of 53 from pant pocket of the accused. Nothing could be said by ld. PP qua this lapse of the Investigating Agency. 47 During course of his submissions before this court, Ld. PP for CBI has made a sincere determined effort to support case of the prosecution. However, in view of glaring infirmities which have appeared on record, thereby denting the investigation of this case, despite his best efforts, Ld. PP could not save the sinking boat of prosecution in this case. 48 All the material facts and circumstances of the case mentioned herein-above lead this court to form an opinion to the effect that prosecution has failed to prove its case against the accused. Fault in this case, in opinion of this court is not of the prosecution but rather of the infirmity which had crept in the case from the stage of investigation itself. Accordingly, this court is of considered opinion that accused is entitled to be acquitted in this case and he is accordingly ordered to be acquitted.
Announced in the open court (M.R. SETHI)
on 21.12.2012 SPECIAL JUDGE-IV, CBI (PC ACT)
TIS HAZARI COURTS, DELHI
CC No. 115/2008 Page53 of 53