Delhi District Court
Cbi vs Hari Ram on 19 December, 2025
IN THE COURT OF GAURAV RAO, SPECIAL JUDGE (CBI)
(PC ACT)-01, ROUSE AVENUE DISTRICT COURTS, NEW
DELHI.
CC No. 48/2022
RC No. DAI-2022-A-0024/CBI, ACB Delhi
CBI v. Hari Ram
CNR No. DLCT11-000498-2022
Under Section 7 of PC Act, 1988
Central Bureau of Investigation
.........Prosecution
Versus
Hari Ram
S/o Sh. Gurumukh Singh
R/o House no. A-203, Second Floor,
Opposite Darshana Park, Jeewan Nagar,
New Delhi-110014.
Permanent Address:
Village Khkirthala Post Chidwa
Tehsil Nawgoan, District Alwar,
Rajasthan.
.........accused
Date of institution : 18.08.2022
Date of arguments : 09.12.2025
Date of judgment : 19.12.2025
Decision : Convicted
JUDGMENT
BRIEF FACTS AS PER THE CHARGE SHEET
1. It is the prosecution case that the RC No. DAI-2022- A-0024/CBI, ACB Delhi was registered against accused Hari Ram, Police Constable, Delhi Police posted at Sarai Kale Khan CC No. 48/2022 CBI v. Hari Ram 1/231 Police Chowki under Police station Sunlight Colony on 05.05.2022, u/s 7 of the Prevention of Corruption Act 1988 (as amended in 2018 & hereinafter referred to as PC Act) on the basis of complaint lodged by Shri Pramod Singh Tomar and verification conducted by Insp. Mahendra Singh, CBI, ACB Delhi.
1.1 It was alleged in the compliant that Shri Pramod Singh Tomar was running a shop in the name & style of "Welcome Travels" at Gate No. 4, Station Road, Sarai Kale Khan, nearby Taxi Stand, New Delhi and accused Hari Ram was demanding a bribe of Rs 5000/- per month from him for smooth running of the shop since last four months and was continuously harassing him & his staff (Mr. Shaan Mohammad) as well as his wife (Smt. Rani Tomar) through Mobile No. 9999028935. Furthermore he was demanding Rs. 20.000/- for the last four months @ Rs. 5,000/- per month and as the complainant did not want to pay the said bribe, he lodged the complaint with SP, CBI, ACB, Delhi for taking legal action against accused Hari Ram.
1.2 The said complaint dated 04.05.2022 was registered as CO-22/2022 and marked to Insp. Mahendra Singh, CBI, ACB, New Delhi for verification which was conducted on 05.05.2022 by him in the presence of independent witness Sh. Sumit Sheoran, Inspector, CGST, Delhi West Commissionerate, Pitampura Division, 7th Floor Ambedkar Bhawan, Rohini, New Delhi which verification confirmed the demand of bribe of Rs 4,000/- per month on the part of accused Hari Ram. The CC No. 48/2022 CBI v. Hari Ram 2/231 verification proceedings were reflected in Verification Memorandum dated 04.05.2022.
1.3 After registration of the case FIR a trap team was constituted on 05.05.2022 at about 10.00 hrs and the Pre-Trap Memorandum dated 05.05.2022, included inter-alia assembly of trap team including independent witnesses & their mutual introduction, exhibition of the typed complaint and factum of verification, production of bribe amount of Rs 16,000/- by the complainant, application of phenolphthalein powder on the bribe amount and explanation cum demonstration of the purpose & significance of its use, mutual personal search by the team members etc. 1.4 The trap team comprising of Insp. Sandeep Kumar Tiwari, TLO, Insp. Umesh Kaushik, Insp. C.M.S. Negi, Insp. Ajay Kumar Singh, Insp. Mahendra Singh, Insp. Bahadur Singh, Insp. Satish Kumar Bana, SI Mukesh Kumar Pandey, SI Dharam Bir, Insp. Devendra Gautam & subordinate staff of CBI, ACB Delhi and independent witnesses namely Sumit Sheoran & Shri Lokesh Kumar, SSA, Engg. Department, O/o Executive Engineer, Building -1, Rohini Zone, North DMC, Rohini, Sector
-5, Delhi-110085 as well as complainant Shri Pramod Singh Tomar assembled at CBI, ACB New Delhi for the purpose of laying a trap.
1.5 The DVR & the memory card used during verification were taken into possession and the CBI brass seal used during verification was taken back from the Verification CC No. 48/2022 CBI v. Hari Ram 3/231 Officer Insp. Mahender Singh and independent witness respectively. On the direction of Insp. Sandeep Kumar Tiwari, Trap Laying Officer (TLO), tainted money was kept by independent witness Sh. Sumit Sheoran in the right side front pocket of jeans pant worn by the complainant with instructions not to touch it and to hand over the same to accused on his specific demand/direction or to some other person as directed by the accused. The complainant was allowed to carry his mobile phone and all team members washed their hands with soap & water.
1.6 Sh. Sumit Sheoran was directed to act as a shadow witness, to remain with the complainant with a view to see the transaction and overhear the likely conversation, if any, between the complainant and the accused. Further, DVR having SD Card was carried by the complainant discreetly to record the conversation which was likely to take place between him and the accused. The complainant and shadow witness were asked to give signal to the trap team members either by scratching their head with both hands or by giving a missed call/ call on the mobile number of the TLO immediately after the transaction is over. The other independent witness namely Sh. Lokesh Kumar as well as other members of the trap team were also instructed by the TLO to remain in the nearby vicinity, discreetly for the said purpose and to rush immediately to the spot upon the receipt of the signal from the complainant/TLO.
1.7 To record the conversation that might take place between the complainant and the accused, memory cards of 16 CC No. 48/2022 CBI v. Hari Ram 4/231 GB of Simmtronics make each were arranged and after ensuring the blankness of DVR, a new memory card of Simmtronics make was inserted in the said DVR and the introductory voices of both the independent witnesses were recorded by SI Devendra Gautam and it was thereafter switched off. A leather bag (Trap Kit) was arranged and its contents displayed to team members. The DVR was to be discreetly kept in person with the complainant at the spot by switching it on for further proceedings in this case. The Pre-Trap proceedings/memorandum concluded at 11:30 hrs. on 05.05.2022 and was read over & explained to the team, whose members appended their signatures on it and which memorandum was taken at the spot of trap.
1.8 The trap team comprising of independent witnesses, complainant and sub-ordinate staff of CBI, ACB, Delhi left the branch, reached in the vicinity thereof at around 12.05 PM and parked the vehicles in discreet manner at a distance. It was decided to record all the telephonic conversations to be held between the complainant and the accused through DVR by putting the complainant's mobile on speaker mode.
1.9 It was decided to wait for the accused's call for further course of action and all the team members waited in discreet manner at the Indraprastha Park which was nearby the said police booth, Sarai Kale Khan, Delhi. At about 02:07 PM, a missed call was received on the mobile phone 8920150174 of the complainant from the mobile phone number 9999028935 of the accused and as per directions of TLO, a call was made by complainant at about 02:33 PM to the accused, however, the said CC No. 48/2022 CBI v. Hari Ram 5/231 call was not answered by him. At about 02:46 PM, a call was received by the complainant from the accused and during the said call accused informed the complainant that he was on night duty the day before and would come today at around 05.00 PM at Police Booth, Sarai Kale Khan, Delhi.
1.10 At about 04:25 PM, a missed call was received on the mobile phone of the complainant from the accused and as per directions of TLO a call was made by complainant to the accused at about 04:35 PM, however, the said call was showing busy line. At about 04:38 PM, another call was received by complainant from the accused and during the said call, accused directed the complainant to meet him at Police Booth, Sarai Kale Khan. All these calls were made and received in presence of both independent witnesses by keeping the mobile phone of the complainant in loudspeaker mode and was simultaneously recorded in memory card through DVR.
1.11 Thereafter the team members along with the complainant and the independent witnesses moved towards the said police booth and the DVR in switch on mode was kept in the left side jacket pocket worn by complainant by SI Devendra Gautam. The complainant was directed to give the tainted bribe money on the specific demand of the accused or to any other person on his directions. He was further directed to give the pre- decided signal immediately after delivery of bribe and Sh. Sumit Sheoran was also directed to give the same signal to the trap team after transaction of bribe if he happens to see the same. The CBI trap team members and witness Sh. Lokesh Kumar took positions CC No. 48/2022 CBI v. Hari Ram 6/231 nearby the Police Booth, Sarai Kale Khan and at about 05:00 PM, the complainant entered the said Police Booth while the independent witness Sh. Sumit Sheoran waited just outside the entry gate of the Police Booth, Sarai Kale Khan, Delhi.
1.12 At about 05:05 PM, the complainant was seen coming out of the said Police Booth with a uniformed police personnel and they were seen having conversation just outside the entry of the Police Booth, Sarai Kale Khan, Delhi. Thereafter, the uniformed police personnel went inside the Police Booth while the complainant was seen going towards the adjacent road without giving the pre-decided signal. SI Devendra Gautam who was also nearby followed the complainant, took back the DVR from him, switched it off and on being enquired by SI Devendra Gautam about the transaction of the tainted bribe amount, the complainant informed that he had met the accused who was in uniform. He further informed that accused had demanded Rs. 8,000/- from him and had also directed him to keep the said amount in the drawer of the table in the room inside the said police booth where he had the conversation with him. SI Devendra Gautam alerted all the CBI team members and the witnesses who then immediately rushed towards & entered the said Police Booth where the accused was found present.
1.13 The TLO confronted & challenged the accused for having demanded and accepted the bribe amount of Rs.8,000/- on which the accused became perplexed, kept mum and his face turned pale. Insp. Umesh Kaushik and Insp Sandeep Kumar Tiwari caught the right and the left hand wrists of the accused CC No. 48/2022 CBI v. Hari Ram 7/231 respectively. Subsequently, the accused accepted that he had demanded & accepted the bribe amount of Rs.8,000/- from the complainant. He also accepted that he had directed the complainant to put the bribe amount of Rs 8,000/- inside the table drawer lying inside the said Police Booth and that on his directions the complainant had kept the bribe amount of Rs. 8,000/- inside the said table drawer. He further disclosed that after the exit of the complainant from the said police booth he had taken out the said bribe amount of Rs. 8,000/- from the table drawer and had kept the same inside the left side rear pocket of a pant hanging on the wall hanger of the inner room of the said police booth, which inner room was used by the police personnel for taking rest.
1.14 On being asked to narrate the incident, the complainant told that he entered the police booth, met the accused and they had some conversations about the demand of money wherein the accused told him that he was only required to pay for two months i.e. Rs 8,000/- while the complainant told him that as per his directions he had brought Rs. 16,000/- for four months. Later in the conversation, the accused directed him to keep the bribe amount of Rs. 8,000/ inside the drawer of the table on which the complainant put the bribe of Rs 8,000/- in the drawer of table lying at the Police Booth.
1.15 Thereafter he came out of the said police booth with the accused, had some conversation with him there also and the accused assured him that now he need not worry. After the conversation the accused went inside the said police booth while CC No. 48/2022 CBI v. Hari Ram 8/231 complainant moved towards the road and the complainant further also clarified that he forgot to give the pre decided signal out of nervousness. However, when he was eriquired by CBI officials about the delivery of bribe to the accused he informed about the delivery of bribe of Rs 8.000/- on which CBI team entered the Police Booth and apprehended the accused. The independent witness Shri Sumit Sheoran was also directed to narrate the sequence of events and he confirmed that he had seen the complainant entering the police booth and later having conversations with the accused just outside the entry of the said police booth.
1.16 The conversations recorded in the DVR were heard and it was found that the sequence of events as narrated by the complainant and the witness corroborated the recorded conversations. The TLO asked the accused whether he was under
directions from his seniors for demanding & accepting the said bribe amount from the complainant on which he denied having received any such directions from any of his seniors or colleagues.
1.17 CBI team took the accused inside the room and on his indication, the said pant in which he claimed to have kept the tainted bribe amount, was searched by independent witness Lokesh Kumar and the said amount of Rs. 8,000/- was recovered by the independent witness from the left side rear pocket of the pant as pointed by the accused. Both the independent witnesses were asked by the TLO to tally the recovered 16 GC Notes amounting to Rs. 8,000/- with the ones mentioned in the pre-trap CC No. 48/2022 CBI v. Hari Ram 9/231 memorandum and found to be tallying. The witnesses confirmed that the said recovered notes were amongst the ones mentioned in the pre-trap memorandum and the said 16 GC Notes numbers were ticked in the pre-trap memorandum by them. The tainted bribe amount of Rs 8,000/- was kept in a brown colour envelope and sealed with CBI brass seal. The envelope was signed by both independent witnesses and the TLO.
1.18 Thereafter, as per directions the remaining tainted amount of Rs. 8,000/- lying with the complainant in his right side jeans pocket was recovered by Sh. Lokesh Kumar and both the independent witnesses tallied the so recovered remaining tainted amount of Rs. 8,000/- (16 GC Notes of Rs 500/- denomination each) with the details of GC Notes mentioned in the Pre-Trap Memorandum and found the said GC Note numbers tallying with the remaining 16 GC notes of denomination 500/- as mentioned in the pre-trap memorandum. The tainted bribe amount of Rs.
8,000/- recovered from the complainant was kept in a brown colour envelope and sealed with CBI Brass seal which envelope was signed by both independent witnesses and the TLO. However, the said GC notes mentioned in the pre trap memorandum were not ticked for the purpose of differentiating between the recovered bribe amount from the accused and those recovered from the complainant. The relevant portion of the pre- trap memorandum mentioning the GC Note numbers was signed by both the independent witnesses as a token of tallying the same with the recovered amount.
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1.19 Right Hand Wash (RHW), Left Hand Wash (LHW),
Left Rear Pant Pocket Wash (LRPPW) of the accused and Table Drawer Wash were subjected to separate four sodium carbonate solution test and the solutions turned pink. Pant of the accused was sealed in a big yellow colour envelope which was signed by the TLO & both independent witnesses and the said envelope was sealed with CBI brass seal. The changing of the colour of the solution is indicative of the fact that the accused had touched the currency notes and handled it.
1.20 On the direction of TLO, one rough site plan (not to scale) denoting the location of the CBI team members, the independent witnesses, the complainant and the accused around the time of transaction of bribe amount was prepared by SI Devendra Gautam which was signed by him, both the independent witnesses, complainant and the TLO.
1.21 SD card was taken out from the DVR in the presence of witnesses and investigation copy of the same was prepared in the official laptop with the help of Write Blocker. The memory card taken out from the DVR was also kept in its original paper cover which was marked as 'Q-2 in RC-24(A)/2022' and the said original paper cover was signed by both the witnesses and the TLO. The said original paper cover containing memory card was kept in a brown envelop and sealed with the CBI brass seal and marked as Q-2 in RC-24(A)/2022' which was also signed by both the witnesses and the TLO.
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1.22 The accused was asked to give his specimen sample
voice which he agreed to give voluntarily. The introductory voice of the both independent witnesses were recorded in the said memory card through DVR before recording the specimen voice of accused. Thereafter specimen voice of the accused, in line with his recorded conversation during the proceedings was taken in the Memory Card through DVR in the presence of independent witnesses by SI Dharambir. The concluding voices of both independent witnesses were also taken after recording the specimen voice and it was kept back in its original cover. The independent witnesses, accused and TLO signed on the said cover of the memory card marked as 'S-1 in RC 24(A)/2022' and this memory card was then put in brown colour envelope, which was sealed with CBI brass seal and marked as "S-1 in RC 24(A)/2022".
1.23 The complainant was asked to give his specimen sample voice which he agreed to give voluntarily. The introductory voice of both the witnesses was recorded in the said memory card through DVR before recording of sample voice of the complainant and thereafter, the specimen voice of complainant was recorded in the memory card through DVR in the presence of both witnesses by SI Dharambir. The concluding voices of both independent witnesses were also taken. This memory card was kept in its original cover and marked as 'S-2 in RC-24(A)/2022' which was also signed by the complainant, independent witnesses and TLO. This Memory card was then put in brown colour envelope which envelope was sealed with CBI brass seal and marked as 'S-2 in RC- 24(A)/2022' and the CC No. 48/2022 CBI v. Hari Ram 12/231 complainant, independent witnesses and the TLO signed on the sealed envelope.
1.24 The DVR used for recording the conversation between the accused and the complainant was also signed by both the independent witnesses and the TLO and it was kept in a brown colour envelope, marked as "DVR used in RC-24(A)/2022" and the said envelope was also signed by both the independent witnesses and the TLO.
1.25 The mobile phone of the accused was seized vide his arrest cum personal search memorandum and the same was sealed with CBI brass seal in the brown envelope which was signed by the TLO and both independent witnesses which envelope was marked as "Mobile of accused in RC 24(A)/2022". A Post- Trap Memorandum dated 05/06.05.2022 was prepared and all the post trap proceedings were incorporated therein, which memo was duly signed by all the trap team members including independent witnesses and the complainant.
1.26 Transcription of Q-1 (verification) & Q-2 (trap proceedings) were prepared which clearly shows motive/reward, demand, acceptance of bribe amount of Rs 8,000/- on the part of the accused.
1.27 During investigation exhibits i.e bottle containing right and left hand fingers washes, Left Rear Pant Pocket Wash of the accused and Table Drawer Wash were sent to CFSL, New Delhi for chemical analysis and CFSL Expert has given positive CC No. 48/2022 CBI v. Hari Ram 13/231 opinion for presence of phenolphthalein powder in the washes vide Report No CFSL-2022/C-483 dated 31.05.2022 which confirmed that accused had dealt with the tainted money.
1.28 Voice of the accused, recorded during the verification & post-trap proceedings was identified by ASI Rohitash of PS Sunlight Colony as he had worked with the accused and is/was acquainted with his voice.
1.29 Documents were taken on record which along with statement of the witnesses revealed that the accused was posted at Sarai Kale Khan Police Chowki under PS Sunlight Colony, New Delhi and from the certified copy of E-Chittha along with certificate u/s 65B of Indian Evidence Act from 04.05.2022 to 05.05.2022 of PS Sunlight Colony, New Delhi seized from PS Sunlight Colony Delhi it is evident that on 04.05.2022 from 10.00 PM to 06.00 AM the accused was in night duty, M/Cycle Patrolling and on 05.05.2022 he was on duty from 10.00 AM to 06.00 PM in PS Reserve-I. 1.30 The CAFs, CDRs and Cell ID chart of mobile phone No. 8920150174 along with 65B Certificates for period from 01.04.2022 to 06.05.2022 of complainant and accused's mobile No. 9999028935 for the same period were obtained from the Nodal Officer, Reliance Jio Pvt. Limited, Delhi which clearly corroborates the evidence of verification & trap proceedings. In addition to the calls considered for verification & trap proceedings, there are many others calls that took place between complainant and the accused.
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1.31 The CDRs, CAFs and Cell ID Charts alongwith
certificates u/s 65B of Indian Evidence Act of mobile number 8882906295 of Smt. Rani Tomar, wife of the complainant obtained from the Nodal Officer, Reliance Jio Pvt. Limited, Delhi and of mobile number 9971307746 of Shri Shaan Mohd, staff of the complainant from 01.04.2022 to 06.05.2022 collected from the Nodal Officer, Bharti Airtel Ltd., Delhi & which number was registered in the name of his brother in law Sh. Nabi Alam clearly proves that accused had called them.
1.32 As per the charge sheet the aforesaid facts disclosed commission of offence punishable under section 7 of the PC Act on the part of the accused and the sanction for his prosecution, u/s 19 of the PC Act was accorded by the competent authority.
1.33 CFSL report bearing no. CFSL-2022/P-651 dated 31.10.2022 in respect of the voices was received on 19.01.2023 along with additional list of witnesses and was taken on record.
Cognizance & Charge
2. Vide order dated 03.09.2022, the cognizance of the offence was taken and accused summoned by the Ld. Predecessor of this court. After compliance of Section 207 Cr.P.C, the arguments on charge were heard and vide order dated 15.02.2023 charge for the offence punishable under Section 7 of the PC Act was framed against accused to which he pleaded not guilty and claimed trial.
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Prosecution Evidence
3. In order to prove its case, prosecution examined 19 witnesses in all.
3.1 So as to avoid repetition and for the sake of brevity, the deposition of these witnesses is not being adverted to in detail herein below as the same has been dealt with at length at the time of appreciating the factual as well as the legal aspects of the case and while considering the rival contentions raised at bar viz-a-viz their deposition. Nonetheless their role, sum & substance of their deposition has been discussed succinctly herein below.
3.2 PW1 Parveen Kumar, Alternate Nodal Officer from Reliance Jio Infocom proved his forwarding letter dated 20.06.2022 as Ex. PW1/A along with the CDR, Customer application form and Cell ID Chart of mobile phone numbers 8882906295, 9999028935 and 8920150174 as Ex. PW1/B, Ex. PW1/C, Ex. PW1/D, Ex. PW1/E, Ex. PW1/F, Ex. PW1/G & Ex. PW1/H and certificate u/s 65-B of Indian Evidence Act as Ex. PW1/I. 3.3 PW2 Sh. Rajiv Vashisht, Nodal Officer from Bharti Aritel Ltd. proved his forwarding letter dated 18.06.2022 as Ex. PW2/A along with the Call detail record, Customer application form & Cell ID Chart of mobile phone number 9971307746 along with certification u/s 65-B of Indian Evidence Act as Ex. PW2/B, Ex. PW2/C & Ex. PW2/D respectively.
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3.4 PW3 Sh. V. B. Ramteke, Principal Scientific Officer
(Chemistry), CFSL, New Delhi proved his chemical examination report dated 31.05.2022 as Ex. PW3/A along with acknowledgment of receipt of exhibits i.e. 04 sealed glass bottles sealed with the seal impression CBI, ACB, 2022 46 N.D in Chemistry Division CFSL on 20.05.2022 as Ex. PW3/B. He identified sealed bottles with the seal of CFSL marked as RHW, LHW, LRPPW, table drawer wash in RC no. 24/A/2022 as were examined by him as Ex. PW3/P-1 to P-4 respectively. He also identified one yellow envelope containing seal impression alongwith the cloth wrappers removed from the mouth of Ex. (bottles) Mark as RHW, LHW, LRPPW and Table drawer wash as Ex. PW3/C as well as four cloth wrappers which were removed from exhibit (bottles) as Ex. PW3/P-5 (Colly) as were kept in the said envelope.
3.5 PW4 DCP Shri Kishan Meena is the Sanctioning Authority who proved his forwarding letter dated 01.08.2022 as Ex. PW4/A and sanction order u/s 19 of the PC Act against the accused as Ex. PW4/B. 3.6 PW5 Shaan Mohd. deposed that in the year 2022, he was working as Manager in Welcome Tour and Travels situated at Sarai Kale Khan, New Delhi which shop was owned by complainant Pramod Singh Tomar. He deposed that he does not know any person by the name of Ct. Hari Ram and that he was provided one mobile phone with the sim card by Sh. Pramod CC No. 48/2022 CBI v. Hari Ram 17/231 Singh Tomar for the office purpose only. He further deposed that at that time he was also having his personal mobile phone bearing number 9582864081 which he was using for his personal purpose. He deposed that deceased Navi Alam, who expired 5 years ago, was his brother-in-law and whose photograph he identified on Customer Application Form in respect of mobile number 9971307746 as Ex. PW2/C (Colly). He deposed that he is not aware who was using said mobile number during relevant period in the year 2022.
He was cross examined by Ld. SPP for the CBI and except for admitting that CBI had made enquries from him in connection with this case & also recorded his statement, he denied the remaining suggestions given to him.
3.7 PW6 Pramod Singh Tomar is the complainant who proved his complaint dated 04.05.2022 as Ex. PW6/A and deposed about the verification proceedings conducted by Insp. Mahender Singh in the presence of independent witness Sh. Sumit Sheoran. He deposed about the DVR & the memory card arranged by Insp. Mahender for verification proceedings, recording of voice of Sh. Sumit Sheoran in the same, calls being exchanged between him and the accused as well as the demand & reduction of bribe amount by the accused on his request, sealing proceedings of the memory card etc. He proved the verification proceedings, memo as Ex. PW6/B and identified the memory card used in the verification proceedings as Ex. P-1 part of Ex. Q-1. He also deposed about the pre-trap proceedings dated 05.05.2022 which included production of bribe amount of Rs. 16,000/- by him, its treatment with phenolphthalein powder, CC No. 48/2022 CBI v. Hari Ram 18/231 demonstration of use of such powder, instructions regarding giving of signal after transaction of bribe etc. and proved the pre- trap memorandum Ex. PW6/C. Though he also deposed about the trap proceedings but did not completely support the prosecution story and was cross-examined by Ld. PP for the CBI during which cross-examination he supported the prosecution story on certain counts while failing to support the same on other aspects.
When file bearing no. 220504_1427 of Ex. P-1 was played in the laptop, he identified the introductory voice of Sumit Sheoron. When file no. 220504_1430 was played he stated that the voice appears to be his but he is not sure. When file nos. 220504_1431, 220504_1726 and 220504_1741 were played he identified the voices as his own voice and that of accused Hari Ram respectively.
He also identified SD Card make Simmtronics as Ex. P-6, part of Ex. Q-2 & P-5 and when its file no. 220505_1040 was played, he identified the introductory voice as that of Sumit Sheoron, when file no. 220505_1042 was played he stated that he cannot recall or identify the said voice, when file no. 220505_1446 was played he identified the voices as his own voice & that of accused Hari Ram, when file no. 220505_1638 was played he identified the voices as his own voice & that of accused Hari Ram and when file no. 220505_1700 was played he identified the voices as his own voice, of accused Hari Ram & the other civilians, police officials who were present at that time.
He also identified SD Card make Simmtronics Ex. S-1 part of Ex. P-7 & P-8 and when its file no. 220505_2310 was played he stated that he cannot recall or identify the said voice, when file no. 220505_2311 was played he stated that he cannot confirm CC No. 48/2022 CBI v. Hari Ram 19/231 whether the said voice is of accused Hari Ram and when file no. 220505_2313 was played he stated that he cannot recall or identify the said voice.
3.8 PW7 Constable Biswajit Barman, PS Sunlight Colony proved certified copy of E-Chitha dated 04.05.2022 & 05.05.2022 alongwith the certificate under Section 65B of Indian Evidence Act as Ex. PW7/B (colly) which were seized by the CBI vide production cum seizure memo dated 28.06.2022 i.e. Ex. PW7/A. 3.9 PW8 Inspector Vijay Shanwal, then SHO PS Sunlight colony deposed on similar lines as deposed by PW7.
3.10 PW9 Sub- Inspector Narendra Singh, PS Sunlight colony deposed on similar lines as deposed by PW7 and Ex. PW8.
3.11 PW10 Sh. Sumit Sheoran (independent witness) deposed about having participated in verification proceedings and pre-trap proceedings on similar lines as deposed by PW6. He proved the voice cum idenfication memo as Ex. PW10/A. He also deposed in detail about the trap proceedings, visit to the spot, handing over of DVR in switch on mode to the complainant, exchange of calls between the accused & the complainant, apprehension of the accused after the bribe transaction was over, recovery of bribe amount at the instance of accused, obtaining of his hand wash and seizure of the hand wash solution etc. He identified the hand washes as well as the pant & CC No. 48/2022 CBI v. Hari Ram 20/231 table drawer washes as Ex. PW3/P-1 to P-4 and also proved the post trap memorandum as Ex. PW10/B. He also deposed about the tallying of the recovered bribe amount with the particulars noted in the pre-trap memorandum and identified his own voice, that of independent witness Sh. Lokesh Kumar and the conversations in Ex. P-6 part of Ex. P-5 & Q-2. He also proved the voice cum identification memo as Ex. PW10/C while also proving the sample voice of the accused was recorded in Ex. P-8 part of Ex. P-7 & S-1, after recording of the introductory voice of Lokesh Kumar in the same. Similarly he identified the sample voice and introductory voice of complainant and Lokesh Kumar in Ex. P-10 part of Ex. P-9 & S-2. He also proved the DVR Ex. P-12, arrest of the accused vide Ex. PW10/D, mobile phone of accused as Ex. P-14 and the site plan as Ex. PW10/E. 3.12 PW11 Smt. Rani Tomar (complainant's wife) deposed that in the year 2022 her husband was running travel business in the name & style of Welcome Travels from gate no.4, Station road, Sarai Kale Khan, nearby taxi stand, New Delhi and that she is/was using a mobile phone which has dual sims in it and 9717194942 is her current acitive number. She identified her photograph on CAF i.e. Ex. PW1/A and also identified mobile no. 8882906295 while stating that this was the other number which she was using in the year 2022, which number is presently not operational. She deposed that she has knowledge regarding lodging of complaint with CBI, however, she does not know the context of the said complaint and that in the year 2022, she had received a call from Sarai Kale Khan Chowki and was asked to send her husband to police chowki on which she told that her CC No. 48/2022 CBI v. Hari Ram 21/231 husband was out of station. In the year 2022, she used to receive the calls from Sarai Kale Khan Chowki but she does not know the name of persons who used to make calls. She voluntarily stated that she remembers only that she was asked to send her husband or her staff to the police chowki.
She was cross-examined by Ld. PP for the CBI and she denied all the suggestions given to her, failed to identify the accused claiming that she had never seen him and also disowned her statement Mark PW11/A. 3.13 PW12 ASI Rohitash Saini, PS Sunlight Colony deposed that in July 2021 on the directions of his SHO, he had gone to CBI office where he was made to hear a recording and compare the recording with the written document/piece of paper and that whatever was heard by him in the recording was duly recorded in the documents/paper and after hearing the same, he signed the documents/papers. He deposed that there were two documents/papers and he was not inquired anything else about the voice in the recording.
He was cross-examined by Ld. PP for the CBI and he stated that his statement was not recorded by the CBI and denied having been asked to identify the voice in the recording or that he identified the voice of the accused. He admitted his signatures on voice identification cum transcription memo Ex. PW12/A but stated that he had not gone the contents of the same.
Thereafter when file nos. 220504_1427, 220504_1430, 220504_1431, 220504_1726, 220504_1741 of Ex. P-1, part of Ex. Q1 and Ex. P-2 were played, he stated that he cannot identify the voice in the said recordings.
CC No. 48/2022 CBI v. Hari Ram 22/231 Similarly when file no. 220505_1040, 220505_1042, 220505_1446, 220505_1638, 220505_1700 of Ex. P-6 part of Ex. Q-2 and Ex. P-5, were played, he stated that he cannot identify the voice in the said recordings.
3.14 PW13 Sh. Lokesh Kumar (independent witness) deposed about the pre-trap and post-trap proceedings on similar lines as deposed by PW10 Sh. Sumit Sheoran. Additionally he proved the envelopes Ex. PW13/A and Ex. PW13/B in which the money recovered from the complainant and the accused were seized. He also proved the pant of accused as Ex. PW13/C and identified the recordings of the memory card when the same were played in the court.
3.15 PW14 Insp. Mahender Singh is the Verification Officer who has deposed about the verification proceedings on similar lines as deposed by PW6 & PW10.
3.16 PW15 Sh. Mukesh Kumar, UDC, Survey of India, R.K. Puram, New Delhi (independent witness) has deposed about the playing & hearing of voice recordings on 22.07.2022 in the presence of Insp. Devender & ASI Rohtash Kumar and preparation of voice identification cum transcript memo Ex. PW12/A (colly). He also identified the recordings in Ex. P-1 and Ex. P-6 when the same were played during the trial.
3.17 PW16 Sh. Arun Kumar Gupta, Senior Scientific Assistant (Physics), CFSL, DFSS, New Delhi proved his forensic voice examination report dated 31.10.2022, in respect of exhibits CC No. 48/2022 CBI v. Hari Ram 23/231 Q-1 in CO-22/2022, Q-2 in RC-24(A)/2022, S-1 in RC-24(A)/2022, S-2 in RC-24(A)/2022 & DVR used in RC-24(A)/2022 as Ex. PW16/B along with forwarding letter dated 28.06.2022 as Ex. PW16/A vide which the above exhibits were received. He also identified the exhibits during the trial Ex. PW16/C to Ex. PW16/G. 3.18 PW17 Insp. Sandeep Kumar Tiwari (Trap Laying Officer) deposed in detail about trap and post-trap proceedings as deposed by PW6, PW10 and PW13.
3.19 PW18 Sh. Kanhiya Lal, Retd. ACP/SED, DCP office Sarita Vihar deposed that vide letter Ex. PW18/A (colly) dated 24.06.2022 he had provided service book record, personal bio-data & copy of transfer posting details of accused Hari Ram to the CBI.
3.20 PW19 Inspector Davinder Kumar is the IO of the case who filed the charge sheet after conclusion of investigation. He proved that the documents pertaining to the present case were handed over to him after entrustment of investigation to him on 09.05.2022. He also proved letter dated 19.05.2022 i.e. Ex. PW19/A vide which the exhibits were sent to CFSL for chemical examination and various documents as proved by other prosecution witnesses.
Statement of Accused
4. After conclusion of prosecution evidence, statement CC No. 48/2022 CBI v. Hari Ram 24/231 of accused Hari Ram under Section 313 Cr.P.C was recorded on 20.05.2025 wherein he denied all the incriminating evidence put to him as wrong and incorrect. He pleaded innocence and examined five witnesses in his defence i.e. DW1 to DW5.
Defence evidence
5. DW1 Head Constable Neeraj Kumar deposed that he was posted at PS Sunlight Colony from the year 2021 till 14.5.2022 as Constable and performed various duties. He further deposed that there were two police officials posted at Sarai Kale Khan Chowki, which falls under the jurisdiction of PS Sunlight Colony, namely Ct. Hari Ram and Head Ct. Hari Ram. He deposed that Head Ct. Hari Ram used to reside at the police booth near Sarai Kale Khan Chowki which police booth consisted of three rooms, one barrick & two toilets. He deposed that on 05.05.2022 when he reached at the police booth, at about 04.30 p.m., he found Ct. Hari Ram, Ct. Akash, Ct. Naveen & 2-3 other police officials present there. Ct. Akash & Ct. Naveen were in police uniform and all others present there were in Civil Clothes. He deposed that in the year 2022, he was knowing complainant namely Pramod Singh Tomar who ran his Tour & Travel Shop near Sarai Kale Khan Police Booth under the name & style of Welcome Tours & Travels and he was having criminal antecedents.
He deposed that on 05.05.2022 at around 5:00 pm, the complainant came in police booth while he & others were present there and informed that he wants to meet Hari Ram. Accused Hari Ram at that time stood up and said that he was Hari Ram CC No. 48/2022 CBI v. Hari Ram 25/231 and on this, the complainant shook hands with him. At that time, complainant said that yesterday i.e. 04.05.2022, he had met some other person named Hari Ram and accused Hari Ram is not the same person with whom, he had met yesterday. He deposed that on this, accused Hari Ram stated to the complainant that he might have met Head Ct. Hari Ram and he may wait by saying that Head Ct. Hari Ram must be coming. He deposed that on this, complainant sat on the chair in front of the table and waited for around 15-20 minutes and he does not know who exactly but one of the police official present there asked the complainant to call Head Ct. Hari Ram. Accused Ct. Hari Ram looked into the room and found the uniform as well as other clothes of Head Ct. Hari Ram were hanging on the wall and he told the complainant that he must be about to come. He deposed that the complainant started fiddling with the drawer of the table and they asked him not to do so as the same contains official documents upon which the complainant left the police booth and after sometime, 3-4 persons entered the police booth and inquired about Ct. Hari Ram and also asked him about the money which he had taken from the complainant, on which, he told them that he had not taken any money from the complainant. He deposed that they also told those persons that no money was exchanged or talks related to money were held in the police booth and those officials told that they were from the CBI. He deposed that CBI officials then called the complainant inside the police booth, asked him about the money and he pointed towards the drawer while stating that the money is in the drawer and then he left the police booth. He further deposed that the CBI officials took out the money from the drawer and confronted Ct. Hari Ram about the money who CC No. 48/2022 CBI v. Hari Ram 26/231 again reiterated that he had not taken any money. He deposed that they also objected to the allegations raised by the CBI and thereafter, the CBI official went inside the room in the police booth alongwith the money taken out from the drawer and thereafter, called one of his colleague inside the room and he kept the money in the back pocket of the grey trouser hanging on the wall and called his colleague inside and he took out the money from the back pocket of the trouser at the asking of that CBI official. He deposed that thereafter, he stated that Hari Ram had accepted the money which was denied by Hari Ram and the CBI officials even slapped Hari Ram upon which they all raised protest, however, they threatened them and made them sit in the barracks. After few minutes, CBI official took accused Hari Ram with them by saying that they are taking him for inquiry.
He deposed that during the relevant time, work of Rapid Metro was going on and the same is continuing today near gate no. 4, Sarai Kale Khan which leads to traffic jam and police used to remove the parked vehicles, rehri, patri etc. in front of the shops etc. He deposed that as far as he recalls, the complainant was involved in number of cases including a dacoity/robbery and that no demand of money was ever raised to the complainant by accused Hari Ram on that day in the police booth in his presence nor any money was ever accepted by him and no recovery was effected at the instance of accused Hari Ram in his presence on that day.
5.1 DW2 Sh. Pankaj Singh deposed that in the year 2022, he was working with Welcome Tours & Travel which is CC No. 48/2022 CBI v. Hari Ram 27/231 owned by Pramod Singh Tomar. This shop is situated near gate no. 4, Sarai Kale Khan Railway Station and mobile no. 8882906295 was being used at the said shop. He further deposed that a call was received on the above mobile number from one Hari Ram and when he answered the same, accused Hari Ram asked for Md. Irshad who was working on a Rehri/stall/food outlet in front of Welcome Tours & Travel where they used to have food at times. He was asked by Hari Ram about the whereabouts of Md. Irshad and told him that there were warrants in his name. He further deosed that he told him that he was not there at the Rehri/stall and on the asking of Hari Ram, he went to the owner of the said Rehri/stall and inquired about Md. Irshad informing him that he had received a call from the Chowki asking about his whereabouts and the owner of the stall told him that Md. Irshad had left the work around one year back.
5.2 DW3 Sh. Sushil Kumar deposed that he is running a Chole Bhature Rehri/food stall at Sarai Kale Khan and a shop in the name & style of Welcome Tours and Travels is situated in front of his said Rehri/food stall. Md. Irshad was his employee at the said stall and he was involved in one liquor matter in which he had stood his surety. He further deposed that he knows accused Hari Ram (correctly identified) and in April 2022, he had come to his stall/rehri in search of Md. Irshad and he was accompanied with SI Dinesh who inquired from him about Md. Irshad and he informed him that he had not been working with him since the last one year. They did some writing work and thereafter they left. He identified the certified copy of one warrant Mark DW3/A and stated that it is the same warrant CC No. 48/2022 CBI v. Hari Ram 28/231 which was prepared in his presence and written by accused Hari Ram and signed by SI Dinesh.
5.3 DW4 Constable Naveen Kumar Meena deposed on the same lines as deposed by DW1.
5.4 DW5 Sh. Prakash Saxena proved E-KYC of CAF in respect of mobile phone bearing no. 9366038059 in the name of Satish Kumar Bana alongwith Certificate under section 63 of Bhartiya Sakshiya Adhiniyam, 2023 as Ex. DW5/A (colly).
Findings
6. I have heard the rival contentions raised at bar by Ms. Bindu & Ms. Jyoti Solanki, Ld. PPs for the CBI and Sh. Sanjeev Bhardwaj, Ld. Defence Counsel. I have also carefully considered & examined the evidence recorded in the matter, traversed the material placed on record by the prosecution in this case and gone through the detailed written arguments filed by Ld. Defence Counsel and the supporting case laws.
6.1 Ld. Defence Counsel relied upon Mahindra Singh Vs. State of MP 2022 (7) SCC 157, Sudesh Kaushik Vs. CBI CRL.A. 629/2009 dated 08.12.2022, Dashrath Singh Chauhan Vs. CBI (2019) 17 SCC 509, N. Sunkanna Vs. State of AP 2015 AIR SCW 6764, Selvaraj Vs. State of Karnataka (2015) 9 SCR 381, State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede 2009 (4) CC Cases (SC) 31, State of Rajasthan Vs. Mohan Lal 2009 (2) RCR (Criminal), Kanti Prasad Tyagi Vs. State of Delhi 2014 (3) RCR (Cr) 570 Delhi, C. Sukumaran Vs. CC No. 48/2022 CBI v. Hari Ram 29/231 State of Kerala I (2015) SLT 694, B. Jayaraj Vs. State of Andhra Pradesh (2014) 13 SCC 55, P. Satyanarayana Murthy Vs. The District Inspector of Police and anr 2015 (4) JCC 2674, Nilesh Dinkar Paradkar Vs. State of Maharashtra (2011) 4 SCC 143, Prem Singh Yadav Vs. CBI 2011 (2) JCC 1059, Chote Lal Vs. Rohtash and ors Criminal Appeal No. 2490/2014 dated 14.12.2023, M.K. Harshan Vs. State of Kerala (1996) 11 SCC 720, Suresh Kumar Vs. State of Haryana Crl. Appeal No. 423SB/1994 dated 30.07.2008, State of Rajasthan Vs. Daulat Ram AIR 1980 SC 1314, State Vs. K. Narasimhachary AIR 2006 SC 628, Ajay Gupta Vs. State through CBI CRL.A. 469/2003 dated 28.10.2022, Jahan Singh Vs. CBI-The State 2020 SCC Online Del 2123, Anil Kumar Tito @ Anil Kumar Sharma @ Titto Vs. State of NCT of Delhi 2015 SCC Online Del 9867, Amarjit Singh and anr Vs. State (Delhi Admn) 1995 JCC 91, Ram Dutt Tyagi Vs. State through CBI CRL.A. 779/2022 dated 15.05.2024, Joginder Singh Malik Vs. CBI CRL.A. 1302/2010 dated 08.12.2022, Mahal Singh Vs. State of Delhi CRL.A. 618/2000 dated 01.09.2023, Dr. S.M. Mannan Vs. CBI Writ Petition No. 24119/2022 dated 22.04.2024, P. Manjunath Vs. State of Karnataka 2022 SCC Online Kar 1834, Mir Mustafa Ali Hasmi Vs. The State of AP SLP (Crl) No. 9091/2022 dated 10.07.2024, Sunil Kumar Sharma Vs. State (CBI) 139 (2007) DLT 407, Sita Ram Vs. CBI AIRONLINE 2020 DEL 820, Prithvi Singh Yadav Vs. CBI CRL.A. 407/2002 dated 18.02.2025, S.K. Bhatia & Ajay Kumar Goel Vs. CBI CRL.A 1256/2014 & 1135/2014 dated 19.08.2019, Megh Singh Vs. State of Punjab (2003) 8 SCC 666, Arjun Panditrao Khotkat Vs. Kailash Kushanrao Gorantyal and ors (2020) 7 SCC 1, P. CC No. 48/2022 CBI v. Hari Ram 30/231 Somaraju Vs. State of Andhra Pradesh Criminal Appeal No. 1770/2014 dated 28.10.2025, K.C. Singh Vs. CBI Criminal Appeal no. 976/2010 dated 10.08.2011, Manish Mathur Vs. State of Rajasthan SB Civil Writ petition no. 12684/2012 dated 19.12.2012 and Ashok Kumar Aggarwal Vs. CBI and ors 2016 CRI. LJ 2410 in support of his arguments.
6.2 Ld. PPs for the CBI relied upon M. Narsinga Rao v. State of AP Supreme Court 2001 CRI. L. J. 515, Madhukar Bhaskar Rao Joshi v. State fo Maharashtra 2000 AIR SCW 4018, Syed Ahmed v. State of Karnatka 2012 (8) SCC 527, Krishna Mochi & ors. v. State of Bihar Appeal (Crl.) 761/2001 dated 15.04.2022, Tahir v. State (Delhi) (1996) 3 SCC 338, Koli Laxman Bhai v. State of Gujarat 1999 SCC 8624, Gura Singh v. State of Rajasthan (2001) 42 ACrC 393, CM Sharma v. State of Andhara Pradesh (2013) 2 SCC (Crl. 89), State of U.P. v. M.K. Anthony AIR 1985 SC 48 Supreme Court, Sushil Kumar Tiwari v. Hare Ram Sah & ors. 2025 LiveLaw (SC) 864, Bhogni Bhai v. State of Gujarat AIR 1983 SC 759 , Faquira v. State of UP AIR 1976 SC 915, State of Punjab v. Karnail Singh AIR 2003 SC 3609, State of Haryana v. Tek Singh 1999 SC , Neeraj Dutta v. State (Govt. NCT of Delhi) 2022 LiveLaw (SC) 1029, B. Hanumantha Rao v. State of Andhra Pradesh AIR 1992 SC 1201, Iqbal Moosa Patel v. State of Gujarat 2011 SCC (Cri.) 654, Gurubachan Singh v. Satpal Singh 1990 SCC (Cri) 151, Mangal Lal v. State of Punjab 878-SB of 1997 dated 30.08.2001, Darshan Lal v. CBI Crl. A No. 73/2001 dated 31.7.2009 Delhi High Court and Dashrath v. State of Maharashtra 2025 INSC 654 in support of the prosecution arguments.
CC No. 48/2022 CBI v. Hari Ram 31/231
6.3 In nutshell the allegations against the accused are
that while being posted as Constable at Sarai Kale Khan Police Chowki under Police Station Sunlight Colony he had demanded undue advantage/bribe of Rs. 20,000/- from complainant Parmod Singh Tomar for permitting/letting him smoothly run his shop/business and ultimately accepted Rs. 8000/- from him and thus thereby he committed offence punishable u/s 7 of the PC Act. With such being the allegations it will be trite to refer to the provisions of Section 7 and 20 of PC Act, 1988 which reads as under:-
"7. Offence relating to public servant being bribed.--Any public servant who,--
(a) obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or
(b) obtains or accepts or attempts to obtain, an undue advantage from any person as a reward for the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or another public servant; or
(c) performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person, shall be punishable, with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
Explanation1.--For the purpose of this section, the obtaining, accepting, or the attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by public servant, is not or has not been improper. Illustration.--A public servant, 'S' asks a person, 'P' to give him an amount of five thousand rupees to process his routine ration card application on time. 'S' is guilty of an offence under this section.
CC No. 48/2022 CBI v. Hari Ram 32/231 Explanation 2.-- For the purpose of this section,--
(i) the expressions "obtains" or "accepts" or "attempts to obtain" shall cover cases where a person being a public servant, obtains or "accepts" or attempts to obtain, any undue advantage for himself or for another person, by abusing his position as a public servant or by using his personal influence over another public servant; or by any other corrupt or illegal means;
(ii) it shall be immaterial whether such person being a public servant obtains or accepts, or attempts to obtain the undue advantage directly or through a third party.
20. Presumption where public servant accepts any undue advantage.--Where, in any trial of an offence punishable under section 7 or under section 11, it is proved that a public servant accused of an offence has accepted or obtained or attempted to obtain for himself, or for any other person, any undue advantage from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or attempted to obtain that undue advantage, as a motive or reward under section 7 for performing or to cause performance of a public duty improperly or dishonestly either by himself or by another public servant or, as the case may be, any undue advantage without consideration or for a consideration which he knows to be inadequate under section 11."
6.4 Section 7 as it existed prior to 26.07.2018 was different from the present Section 7 and it specifically referred to "any gratification" whereas the substituted/amended Section 7 does not use the word "gratification" but it uses a wider term "undue advantage". To understand the essential facts/ ingredients which the prosecution needs to establish to constitute an offence u/s 7 and its interplay with section 20 it will be worthwhile to go through the following observations of the Hon'ble Apex Court in V. Sejappa v. State by Police Inspector Lokayukta, Chitradurga 2016 (3) JCC 1488:-
"10. In order to constitute an offence under Section 7 of the Prevention of Corruption Act, 'proof of demand' is a sine quo CC No. 48/2022 CBI v. Hari Ram 33/231 non. This has been affirmed in several judgments including a recent judgment of this Court in B. Jayaraj v. State of Andhra Pradesh (2014) 13 SCC 55, wherein this Court held as under:-
"7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P.(2010) 15 SCC 1 and C.M. Girish Babu v. CBI (2009) 3 SCC 779." The same view was reiterated in P.Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh and Anr. (2015) 10 SCC 152."
...........
18. It is well settled that the initial burden of proving that the accused accepted or obtained the amount other than legal remuneration is upon the prosecution. It is only when this initial burden regarding demand and acceptance of illegal gratification is successfully discharged by the prosecution, then the burden of proving the defence shifts upon the accused and a presumption would arise under Section 20 of the Prevention of Corruption Act......
19. After referring to Surajmal v. State (Delhi Administration) (1979) 4 SCC 725, in C.M. Girish Babu v. CBI, Cochin, High Court of 13 "18. In Suraj Mal v. State (Delhi Admn.) (1979) 4 SCC 725, this Court took the view that (at SCC p. 727, para 2) mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe." In State of Kerala and Anr. v. C.P. Rao (2011) 6 SCC 450, it was held that mere recovery of tainted money is not sufficient to convict the accused and there has to be corroboration of the testimony of the complainant regarding the demand of bribe.
20. While dealing with the contention that it is not enough that some currency notes were handed over to the public servant to make it illegal gratification and that the prosecution has a further duty to prove that what was paid was an illegal gratification, reference can be made to following observation in CC No. 48/2022 CBI v. Hari Ram 34/231 Mukut Bihari and Anr. v. State of Rajasthan (2012) 11 SCC 642, wherein it was held as under:-
"11. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused, when the substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as bribe. Mere receipt of amount by the accused is not sufficient to fasten the guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification, but the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. 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 on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before 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. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness and in a proper case the court may look for independent corroboration before convicting the accused person."
6.5 The proof of demand of undue advantage, thus is the gravamen of the offence u/s 7 of the PC Act and mere acceptance of any amount allegedly by way of undue advantage or recovery thereof dehors the proof of demand, ipso facto, would not be sufficient to bring home the guilt against the accused. In view of the settled legal principles adumbrated above and having regard to the profuse reference to the evidence on record, made during the course of arguments, the essential ingredients of the offence are adverted to and analysed in detail herein below.
CC No. 48/2022 CBI v. Hari Ram 35/231
Demand
6.6 The foremost essential fact which the prosecution
needs to establish, that too beyond reasonable doubt, to bring home the guilt against the accused u/s 7 of the PC Act is that demand seeking undue advantage/illegal gratification/bribe was raised by him and that this demand was raised to the complainant.
6.7 As far as the demand is concerned, it was argued by Ld. PPs for the CBI that the material on record which includes the statement of the complainant, independent witness apart from the Verification Officer and the CFSL report sufficiently establishes demand of undue advantage/bribe by the accused. On the contrary, it was argued by Ld. Defence Counsel, while relying upon the testimony of the complainant and defence witnesses (DW1 & DW4) that the prosecution miserably failed to prove the demand. Ld. Defence Counsel further relied upon the testimony of the complainant's wife and his employee to discredit the prosecution's case of demand.
6.8 On a careful appreciation of the evidence and the supporting material, I am of the considered opinion that the prosecution case of demand stands duly established on record.
A. Demand stands proved from the complaint and the complainant's deposition.
6.9 The present prosecution came to be lodged on the
CC No. 48/2022 CBI v. Hari Ram 36/231
basis of complaint Ex. PW6/A (D-2) given by complainant Sh. Pramod Singh Tomar (PW6). According to Ex. PW6/A Constable Hari Ram i.e. the accused, who was posted at Sarai Kale Khan Police Chowki under Police Station Sunlight Colony, had been demanding a bribe of Rs. 5000/- per month for permitting/letting the complainant to smoothly run his shop/business and he had been continuously harassing the complainant, his wife Smt. Rani Tomar as well as his staff Sh. Shan Mohd in this regard. The total demanded bribe was Rs. 20,000/- @ Rs. 5000/- per month for four months. The image of the complaint is reproduced hereunder:-
6.10 Hence in Ex. PW6/A complainant categorically alleged demand of bribe by the accused and during his deposition he corroborated the fact that he had given the said CC No. 48/2022 CBI v. Hari Ram 37/231 complaint to CBI on 04.05.2022. The relevant portion of his deposition wherein he proved his complaint and reiterated the allegations of demand by the accused is reproduced hereunder:-
"In the year 2022, I was running business of Tour and Travels in the name and style of Welcome Travels situated at Sarai Kale Khan near Taxi stand. My wife name if Rani Tomar. Shaan Mohammad who was working as my employee in said shop in the year 2022. Somewhere in April 2022, I was informed by my said employee Shaan Mohd. that for last few days the police personnels including the beat constable Hari Ram had been visiting their shop and said Ct. Hari Ram had been raising demand of Rs. 5000/- per month for running the shop. I was also told that Ct. Hari Ram had also asked to meet him and threatened that otherwise he would not allow him to run the shop. My wife Rani had also received a call from her Hari Ram in this regard and she informed me that Hari Ram had raised demand of Rs. 5000/- per month by making a telephonic call to her on her mobile phone. I do not remember at this stage the mobile phone number of my wife but the same is saved in my mobile phone and I can tell the same by checking my mobile phone.
After coming to know about the aforementioned demand raised by Hari Ram, I prepared a complaint against him and visited the CBI office on 04.05.2022, where I filed the said complaint.
At this stage, witness is shown document D-2 i.e. a typed complaint dated 04.05.2022 addressed to SP, CBI, ACB, Delhi. The witness identifies the same to be the complaint given by him to CBI and also identifies his signature on the same at point A. Same is now exhibited as Ex. PW6/A".' 6.11 During his cross-examination not even once it was suggested to PW6 that he had never visited the CBI office on 04.05.2022 or that he had never given any such complaint or that the said complaint was a false one. The only cross-examination of PW6 qua complaint Ex. PW6/A is reproduced hereunder:-
"I am 12th pass. I can read and writing English but I am not well conversant with the language.......On 04.5.2022, I had gone to CBI office at around 10:00-11:00 am. I had gone alone, nobody accompanied me at that time."
6.12 In addition to proving his complaint Ex. PW6/A, the CC No. 48/2022 CBI v. Hari Ram 38/231 complainant during his examination in chief categorically stated that it was Constable Hari Ram i.e. the accused who had raised the demand from him, which fact was also informed by him to the SP, CBI at the time when he gave the complaint i.e. on 04.05.2022. The relevant portion of his deposition in this regard is reproduced hereunder:-
"On 04.05.2022, after my gate pass was made at the Reception, I met Inspector Mahender Singh of CBI, who also introduced me to the SP of the CBI. Thereafter, the SP of CBI inquired from me regarding my complaint and I also informed him that a demand is being raised from me by police officials including Ct. Hari Ram and they threatened that otherwise they will not allow me to run my business."
6.13 It was one of the arguments of Ld. Defence Counsel that by merely getting the complaint exhibited, the prosecution cannot sufficiently establish its case of demand of bribe/undue advantage against the accused as during the trial the complainant turned hostile, however, I find no merits in the said arguments. It is not merely a case where the complainant has simpliciter exhibited his complaint and there is no other evidence to support the complaint, the allegations of demand & acceptance of bribe. Though no doubt the complainant failed to support the prosecution story in entirety and made certain false statements, whose effect has been discussed in detail in the later part of the judgment, nonetheless there is sufficient ocular, technical and documentary evidence on record which clearly establishes the prosecution case of demand & acceptance of demand of bribe, undue advantage by the accused.
6.14 Ld. Defence Counsel further argued that according to PW6, apart from the accused, there were other police CC No. 48/2022 CBI v. Hari Ram 39/231 personnel who were also allegedly demanding bribe from him and that he had disclosed their names to Inspector Mahender Singh/PW14 as well as SP, CBI, however, they told him that at one time a complaint can be made against one official only and not the others. It was argued that the said statement made by the complainant itself proves the falsity of the complaint and that it was as fabricated one given at the behest of the IO, SP, CBI.
6.15 As far as the said arguments are concerned, at the outset, it is to be seen that complaint Ex. PW6/A was only against the accused and not against any other police personnel. Though according to PW6's deposition, police personnel including accused had been visiting his shop, however, as far as demand of bribe is concerned, PW6 had categorically deposed that the demand was raised by the accused only and not only he did not name any other police official, during his examination in chief, but he also did not state that the demand was also raised by any such other police official. The relevant portion of his examination in chief in this regard read as " Somewhere in April 2022, I was informed by my said employee Shaan Mohd. that for last few days the police personnels including the beat constable Hari Ram had been visiting their shop and said Ct. Hari Ram had been raising demand of Rs. 5000/- per month for running the shop.........said Ct. Hari Ram had been raising demand of Rs. 5000/- per month for running the shop. I was also told that Ct. Hari Ram had also asked to meet him and threatened that otherwise he would not allow him to run the shop. My wife Rani had also received a call from her Hari Ram in this regard and she informed me that Hari Ram had raised CC No. 48/2022 CBI v. Hari Ram 40/231 demand of Rs. 5000/- per month by making a telephonic call to her on her mobile phone". Hence, according to PW6, the demand was raised by accused Hari Ram only who had also called his wife in this regard, which fact stands duly corroborated on record from the CDR/call records which have been discussed at length in this judgment.
6.16 As far as the statement made by PW6 during the cross-examination wherein he claimed that he had disclosed the names of other police officials who had been demanding bribe from him to Insp. Mahender and SP CBI, in my considered opinion, the said statement was a deliberate improvement merely to create confusion in the mind of court and to give benefit to the accused as the following discussion would establish that during the trial, the complainant was won over by the accused and to a certain extent, he deposed falsely at his behest. Most importantly, I find no reason why PW14 or SP, CBI would shield the other police personnel or not take the complaint against them. Furthermore, not only PW6 failed to give the name of the said other police personnel during the cross-examination but even the Ld. Defence Counsel made no efforts to elicit their names from PW6. Also the defence failed to establish through the CDR of PW6 or PW5 or PW11 that any other police personnel from police chowki Sarai Kale Khan had called the complainant or his employee/PW5 or his wife/PW11 and demanded bribe/undue advantage. On the contrary, there is ample proof on record that calls were made by the accused to PW5, PW11 & PW6 and the purpose of these calls was none other than to pressurize them to pay the bribe.
CC No. 48/2022 CBI v. Hari Ram 41/231
B. Corroboration of complaint by PW5 & PW11, their CDRs
and that of PW6 and the accused.
6.17 Coming back to the complaint, the complainant's
employee Shan Mohd. (PW5), whose name appears in the complaint and who was also pressurized by accused Hari Ram for bribe, was examined as PW5. No doubt PW5 turned hostile and claimed that he does not know any person by the name of Constable Hari Ram i.e. the accused and during his cross- examination by Ld. Sr. PP for the CBI he denied that he had informed the CBI that he was using mobile phone no. 9971307746 which was subscribed in the name of his brother-in- law Nabi Alam while stating that he was not aware as to who was using the said mobile number in 2022. Though he also denied that Constable Hari Ram had raised demand of Rs. 5000/- or that similar demands were raised by him to the complainant's wife Smt. Rani Tomar, however, certain crucial facts in support of the prosecution case did emerge during his deposition.
6.18 Firstly, as per CAF Ex. PW2/C (colly) (D-14) the said mobile phone bearing no. 9971307746 is registered in the name of Sh. Nabi Alam who is PW5's brother in law. According to PW5 Sh. Nabi Alam had expired around 5 years back i.e. prior to 2018 and he identified Sh. Nabi Alam's photograph on Ex. PW2/C (colly). The CDR of the said mobile number for the period w.e.f. 01.04.2022 to 06.05.2022 is on record along with Cell ID Chart Ex. PW2/D as was duly proved by PW2 Nodal Officer from Bharti Airtel. Similarly, the CDR of mobile phone CC No. 48/2022 CBI v. Hari Ram 42/231 bearing no. 9999028935 for the same period is also on record as Ex. PW1/D as was proved by PW1 Sh. Praveen Kumar, Nodal Officer from Reliance Jio Infocom who also proved it's CAF along with KYC as per which it is registered in the name of Hari Ram s/o Gurumukh Singh i.e. the accused. The above CDRs duly establish the calls between accused Hari Ram and mobile number 9971307746 which according to the prosecution was used by Sh. Shan Mohd/PW5. The CDR Ex. PW2/B (colly) proves that on 01.5.2022 at about 20:36 hrs, call was made by the accused to PW5. On 02.5.2022, PW5 had called the accused at about 10:13 hrs and 10:30 hrs. The location chart/Cell ID chart Ex. PW2/D shows the location of mobile number 9971307746 on 01.05.2022 at Nizamuddin Railway Station which is in the vicinity of the complainant's shop and on 02.05.2022 the location of the first call is again at Nizamuddin Railway Station and that of the second call near Sarai Kale Khan i.e. where the complainant was running his Tour & Travel Business. PW5 being an employee of complainant, who was running the Tour & Travel business, his CAF explains the location of the mobile phone at Nizamuddin Railway Station. The location of the said mobile phone is mostly near Nizamuddin Railway Station or Sarai Kale Khan or at Sangam Vihar where PW5 was residing. This duly establishes that not only the said mobile number was used by PW5 but also the fact that accused Hari Ram had been calling/talking to PW5. It is/was for accused Hari Ram to explain why he had been calling/talking to PW5 but he failed to explain the same and the only purpose of these calls was to seek bribe/demand of bribe and harass the complainant, his wife, his staff/PW5 to pay up the same as was duly mentioned in Ex.
CC No. 48/2022 CBI v. Hari Ram 43/231
PW6/A.
6.19 The CDR of mobile no. 9971307746 i.e. Ex. PW2/B
(colly) further reveals that number of calls were exchanged between the said number and mobile no. 8882906295 of PW11 Smt. Rani Tomar i.e. complainant's wife and 8920150174 belonging to the complainant which further proves that mobile number 9971307746 was used by PW5 only and none else. Infact, after the calls were exchanged between PW5 and the accused, the next call was made by PW5 to the complainant as stands proved from their CDRs.
6.20 Secondly, PW5, during his cross-examination by Ld. Defence counsel, admitted that mobile number 8882906295 was also used in the complainant's shop for office purposes and that all the employees were using the said mobile number. According to the prosecution this phone number was being used by complainant's wife Smt. Rani Tomar (PW11) to whom also Constable Hari Ram had demanded the bribe as is evident from complaint Ex. PW6/A. PW11 during her testimony admitted her photographs on the CAF Ex. PW1/A (in fact Ex. PW1/C) of the said mobile number while also stating that she was using the said mobile number in the year 2022. As per Ex. PW1/C the said number is registered in her name and as per Ex. PW1/B i.e. CDR of the said mobile number, calls were exchanged between the said number and the accused's mobile number 9999028935 which becomes more evident from Ex. PW1/D dated 23.04.2022, at about 18:10 hrs. The calls to PW11 and PW5 were made prior to the complaint. But for raising demand for CC No. 48/2022 CBI v. Hari Ram 44/231 undue advantage/bribe/illegal gratification, which compelled PW6 to give complaint Ex. PW6/A, there was no occasion for accused Constable Hari Ram to call the complainant's wife or for that matter PW5 and if there was any valid reason for these calls, it was for the accused to explain the same which he miserably failed to do so. There is just no explanation/ justification coming forward from the accused for these calls. Thus, the fact that accused was demanding bribe & harassing the complainant, his wife and employee Sh. Shan Mohd. for the same, as is/was mentioned in complaint Ex. PW6/A, stands duly corroborated from the above CDRs and further proves the genuineness, authenticity of the complaint.
6.21 No doubt the accused tried to justify the calls made to the complainant's wife on mobile no. 8882906295 through the deposition of DW2, however, the said attempt went futile and was merely an after thought. At best, if the deposition of DW2 is believed, there is justification coming forward for only one call. Most importantly, when this call was made i.e. the date/month was neither proved by DW2 nor by the accused. As discussed above, not only to the complainant's wife but also to the mobile number used by PW5 as well as to the complainant's, number of calls were made by the accused and the purpose of the same was to raise demand of bribe/undue advantage.
6.22 It will be worthwhile to point out that during his cross-examination by Ld. PP for the CBI, complainant/PW6 stated that he had met Hari Ram, who is none other than the accused, upon being informed by his staff about visit of police CC No. 48/2022 CBI v. Hari Ram 45/231 officials demanding bribe/money and mobile number of one of the police official was also handed over to him. According to PW6 he made a call on that number and subsequently met the police official whom he had called. The said police official is/was none other than the accused. The relevant portion of his cross-examination in this regard is reproduced hereunder:-
"Ques: In what connection had you met HC Hari Ram prior to said date when you visited police booth?
Ans: Because I was told by my Staff that few persons from the police chowki were visiting my shop and were demanding money and they also handed over me the phone number of one of them whom I made a call on phone and subsequently met him on 04.4.2022 and the name of said person was subsequently revealed as HC Hari Ram.
When I met him on 04.4.2022, I asked HC Hari Ram about the reason of demanding money and he said that the payment for few months perhaps 4 months, were due. The said payment which was said to be due, was the monthly payment which used to be paid by my Manager to the beat personnels. Vol. I never made any such payment only my staff used to deal with that."
6.23 Though undoubtedly PW11 did not take the name of the accused nor deposed that any bribe was demanded by him, however, she did state that in the year 2022 she had been receiving calls from PS Sarai Kale Khan Chowki with directions to send her husband there. The relevant portion of her testimony in this regard is reproduced hereunder:-
"In the the year 2022, I had received a call from Sarai Kale Khan Chowki and was asked to send my husband to police chowki on which I told that my husband was out of station. In the year 2022, I used to receive the calls from Sarai Kale Khan Chowki but I do not know the name of persons who used to make calls. (Vol. Only I remember that I was asked to send my husband to police chowki or my staff)"
6.24 These calls as per the CDRs, as discussed above, were made by none other than the accused who admittedly was posted as Sarai Kale Khan Police Chowki. No doubt PW11 had CC No. 48/2022 CBI v. Hari Ram 46/231 also turned hostile and during cross-examination by Ld. PP for the CBI she denied that she had received call from Constable Hari Ram from Police Chowki Sarai Kale Khan who demanded a bribe of Rs. 5000/- per month for four months for allowing smooth running of shop/business by her husband and also failed to identify him claiming that she had never seen him and also stated that her statement was not recorded by the CBI, however, I have no hesitation in concluding that she was deposing falsely at the instance of accused, to save him. As discussed above, but for the demand there was no reason for the accused to call her or for that matter PW5.
6.25 The transcripts Ex. PW10/A (colly) & Ex. PW10/C (colly) of the recorded conversations in Ex. P-1 & Ex. P-6 not only proves that PW5 & PW11 were deposing falsely but it further proves that the accused had been harassing PW5, PW11 & the complainant/PW6 and demanding undue advantage/bribe as was rightly mentioned in complaint Ex. PW6/A. The transcripts have been discussed at length in the later part of the judgment and the relevant images of the transcripts proving the exchange of calls between PW5, PW11 with the accused and the pressure on them to fulfill the demands of the accused is reproduced hereunder:-
Ex. PW10/A (colly) CC No. 48/2022 CBI v. Hari Ram 47/231 CC No. 48/2022 CBI v. Hari Ram 48/231 CC No. 48/2022 CBI v. Hari Ram 49/231 Ex. PW10/C (colly) *Note: A is the complainant and B is the accused 6.26 When the CDRs, incriminating material in the form of call record was put to the accused during his examination u/s 313 Cr.P.C. the only explanation furnished by him regarding the calls as reflected in the CDRs between him and PW5, PW6 & PW11 was "It is incorrect" which is no explanation at all. He CC No. 48/2022 CBI v. Hari Ram 50/231 failed to explain as to how the CDRs or the deposition of PW1 or PW2 is incorrect and he did not even once deny exchanging of calls with PW5, PW6 & PW11. The purpose of recording statement u/s 313 Cr.P.C. is to give the accused an opportunity to explain the incriminating material as appearing against him and if the accused simpliciter answers "It is incorrect" same is just a vague denial with no logical explanation as to how the record/evidence is incorrect.
6.27 In Nar Singh vs State of Haryana AIR 2015 SUPREME COURT 310 it has been held as under:-
"11. The object of Section 313 (1)(b) Cr.P.C. is to bring the substance of accusation to the accused to enable the accused to explain each and every circumstance appearing in the evidence against him.........
12. Elaborating upon the importance of a statement under Section 313 Cr.P.C., in Paramjeet Singh alias Pamma v. State of Uttarakhand, (2010) 10 SCC 439 (para 22), this Court has held as under:
5 "Section 313 CrPC is based on the fundamental principle of fairness.............This provision is mandatory in nature and casts an imperative duty on the court and confers a corresponding right on the accused to have an opportunity to offer an explanation for such incriminatory material appearing against him...........
13. In Basava R. Patil & Ors. v. State of Karnataka & Ors., (2000) 8 SCC 740, this Court considered the scope of Section 313 Cr.P.C. and in paras (18) to (20) held as under:-
"18. What is the object of examination of an accused under Section 313 of the Code? The section itself declares the object in explicit language that it is "for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him".
6.28 The following observations made in Premchand Vs. The State of Maharashtra 2023 LiveLaw (SC) 168 as regards importance of Section 313 Cr.P.C. are also relevant in this regard:-
CC No. 48/2022 CBI v. Hari Ram 51/231 "16. ..............However, judicial experience has shown that more often than not, the time and effort behind such an exercise put in by the trial court does not achieve the desired result. This is because either the accused elects to come forward with evasive denials or answers questions with stereotypes like 'false', 'I don't know', 'incorrect', etc. Many a time, this does more harm than good to the cause of the accused. For instance, if facts within the special knowledge of the accused are not satisfactorily explained, that could be a factor against the accused. Though such factor by itself is not conclusive of guilt, it becomes relevant while considering the totality of the circumstances........"
6.29 Infact though in his statement recorded under section 313 Cr.P.C, accused denied having exchanged/made calls with/to to the mobile no. 8882906295, which was registered in the complainant's wife's name, however, he examined DW2 to justify the call made on the said mobile number. This itself proves the falsity, hollowness of his claim.
6.30 As far as the effect of a witness's (PW5 & PW11) turning hostile and the weightage to be attached to the testimony of such witnesses is concerned, the law is well settled now that the testimony/evidence of such a witness need not be completely discarded, which legal position has been discussed at length in the later part of this judgment. Moreover, a witness may lie but not the document/CDR which stands duly proved on record and which squarely establishes exchange of calls between the accused and PW5, PW6 & PW11.
6.31 Though it was argued by Ld. Defence counsel, that the CDRs of mobile phone of PW5, PW6 & PW11 and for that matter of the accused were not legally proved for want of complete certificate u/s 65B of Indian Evidence Act as well as CC No. 48/2022 CBI v. Hari Ram 52/231 for non fulfillment of requirement of section 65B of Indian Evidence Act, however, I find no merits in their arguments. Ld. Defence Counsel failed to explain that how the certificates Ex. PW1/I or Ex. PW2/B (colly) are not in accordance with law or how PW1 & PW2 were not competent to issue the said certificate or furnish the details. As proved by PW1 & PW2, being Nodal Officers, they had accessed the CDRs & other details using their unique user ID & password and they having provided the details after taking print out from the computer it was these officials whose certificates under section 65 B of the Indian Evidence Act was required to lend genuineness, authenticity to the details furnished by them.
6.32 It makes no difference that same printer is/was used by other Nodal Officers or that other Nodal Officers also had access to CDRs as was stated by PW1 & PW2. The only purpose of the printer is to give a print as per the command given by the computer and the printer on it's own cannot print anything unless so commanded. Furthermore, the CDR could be accessed only with the personal user name & password provided to the Nodal Officers. For obvious security reasons, the user name & the password do not and cannot be reflected on the CDR and as far as non reflection of the IP address of the computer on the CDR is concerned, as pointed out by Ld. Defence Counsel, same is not required and it also makes no difference that the main server where all CDRs are stored is located in Mumbai as the deposition of PW1 & PW2 and their certificates under section 65B of the Indian Evidence Act sufficiently ensures the genuineness of the information provided by them vide Ex.
CC No. 48/2022 CBI v. Hari Ram 53/231
PW1/A to Ex. PW1/H & Ex. PW2/A to Ex. PW2/D.
6.33 The defence miserably failed to prove any
manipulation or tampering with Ex. PW1/A to Ex. PW1/H & Ex. PW2/A to Ex. PW2/D and most importantly, I find no reason why PW1 & PW2 would create or provide false record in the form of CDR, CAF etc. to the investigating agency. They were absolutely unknown to the accused and had no reasons to depose falsely against him or create or provide false record against him or for that matter qua PW5, PW6 & PW11. The Nodal Officers were examined by the prosecution from two different mobile subscriber companies. Defence could not prove anything on record to suggest that both these Nodal Officers deposed falsely at the instance of the IO. Also, as per the Cell ID/location chart, the location of the accused was exactly at the same place as the accused was/had been at the time of verification and trap proceedings.
6.34 No doubt, PW1 & PW2 did state that the proforma of the certificate u/s 65 B of Evidence Act is available in their computer/system and that after filling up relevant entries pertaining to the documents, they take out the print outs but that by itself does not create any doubt upon the authenticity of the record/Ex. PW1/A to Ex. PW1/H & Ex. PW2/A to Ex. PW2/D. It is only a matter of convenience that a proforma of the certificate is available in the office of PW1 & PW2 and the same is also quite logical. The CDR/CAF/Cell ID Chart are required by different agencies in investigation of various matters. It is a matter of common knowledge that the mobile subscriber CC No. 48/2022 CBI v. Hari Ram 54/231 companies are providing the above details and issuing hundreds of supporting certificates u/s 65B to these agencies/departments. The mobile subscriber companies cannot be expected to type a fresh certificate every single time the same is required by the investigating agencies/departments. Same is practically not possible/feasible. If the contention of Ld. Defence counsel is accepted, then half of the company staff/officials would be kept busy only in typing the certificates for different agencies/departments. Instead of going into such technicalities the defence, if it wanted to create doubt upon the CDR/CAF/Cell ID Chart, should have brought some cogent material on record which could dispute/dislodge the prosecution case based upon Ex. PW1/A to Ex. PW1/H & Ex. PW2/A to Ex. PW2/D. There is no material whatsoever on record to even remotely create any iota of doubt on these documents and the arguments are absolutely bald and flimsy. As discussed above, the defence could not even remotely prove that Ex. PW1/A to Ex. PW1/H & Ex. PW2/A to Ex. PW2/D are forged, fabricated or doctored record. The Ld. Defence counsel could not prove that the mobile numbers in question did not belong to the accused or for that matter PW5, PW6 & PW11 respectively or that they belonged to someone else.
6.35 Though, Ld. Defence Counsel also pointed out that both PW1 & PW2 admitted that at the time of issuance of mobile number 8920150174 & 9971307746, the physical copy of any document of residential proof was not taken and, therefore, the prosecution miserably failed to prove that the said mobile numbers were issued in the name of the complainant and CC No. 48/2022 CBI v. Hari Ram 55/231 deceased Mr. Nabi Alam respectively, however, the said argument is also meritless. As far as mobile no. 8920150174 of the complainant is concerned, PW1 categorically stated, during his cross-examination, as under:-
"However, since the Aadhar card is a bio metric document, therefore, the subscriber/applicant mentioned his Aadhar Card number on the CAF and we verified the same. It is correct that I did not personally verified the same"'.
6.36 Similarly, PW2 regarding mobile no. 9971307746 in the name of deceased Mr. Nabi Alam stated as under:
"However, the original was brought by the subscriber and seen and since the Aadhar Card is a bio metric document, therefore, the subscriber/applicant mentioned his Aadhar card number on the CAF and he was asked to give his thumb impression on some device at the retailer end upon which the detail and genuineness of Aadhar Card is verified through the govt. website of Aadhar card".
6.37 Ex. PW1/G, testimony of PW1 coupled with the deposition of PW6 leaves no doubt that mobile number 8920150174 was used by the complainant. Similarly, Ex. PW2/C & Ex. PW2/D, testimony of PW2 as well as that of PW11 leaves no doubt that mobile no. 9971307746 was issued/registered in the name of deceased Mr. Nabi Alam and that the same was used by PW11. It is not the defence's case that the said aadhar cards did not belong to PW6 or deceased Mr. Nabi Alam. Similarly, nothing was brought on record to prove that PW6 was not using the mobile number 8920150174 or that mobile no. 9971307746 was not issued in the name of deceased Mr. Nabi Alam. Without bringing on record any cogent material which could even remotely create doubt upon the prosecution's case based upon the testimony of PW1 & PW2, the defence cannot simply go into the technicalities or attack certificate u/s 65B of the Evidence CC No. 48/2022 CBI v. Hari Ram 56/231 Act. Last but not the least, recourse to the technical flaws or procedural lapses, if any, which do not prejudice the accused in any manner whatsoever cannot be permitted to be taken to defeat the ends of justice, the larger public interest which require that a guilty should not go free on mere technicalities.
C. Proof of demand during verification of complaint Ex. PW6/A, the recorded conversation.
6.38 Complaint Ex. PW6/A was verified by Verification Officer/Insp. Mahender Singh/PW14, which verification was conducted in the presence of complainant and independent witness Sh. Sumit Sheoran/PW10. The said proceedings were reduced into writing in the form of verification memo dated 04.05.2022 i.e. Ex. PW6/B. For the purpose of the complaint's verification a digital voice recorder (DVR) make Sony and a new simmtronics 16GB SD card were arranged, thereafter the blankness of the SD card was ensured by recording the introductory voice of the independent witness by inserting the said memory card in the DVR. Thereafter calls were made by the complainant from his mobile phone bearing no. 8920150174 to the accused's mobile phone bearing no. 9999028935 which calls were duly recorded in the SD Card while the phone of the complainant was on speaker mode which fact also stands substantiated by CDR of complainant's above mobile number i.e. Ex. PW1/F. Two calls were made at about 14:31 hrs and during the second call, the accused informed the complainant that he would be available after about 2 hours and the place of meeting was accordingly decided as Sarai Kale Khan Police CC No. 48/2022 CBI v. Hari Ram 57/231 Booth. Another call was made by the complainant to the accused at about 17:27 hrs and this call was also recorded in the memory card Ex. P-1 through the DVR and the transcript is also available on record. Once it was confirmed by the accused that he has reached the police booth, it was decided that the complainant would meet him there.
6.39 Accordingly, the verification team comprising of the complainant, independent witness Sh. Sumit Sheoran/PW10 and the verification officer reached near police booth Sarai Kale Khan. At about 17:42 hrs, the accused called the complainant and at about 17:44 hrs, the complainant again called the accused. Finally the accused directed the complainant to come inside the police booth. All these calls except for the last two calls were heard by the members of the verification team as the complainant's phone was on speaker mode. As regards the last two calls as the complainant had gone to the police booth these calls and the following conversation between him & the accused were recorded in the memory card through DVR which was put in the recording and hold mode in the pocket of the complainant's trouser/jeans pant.
6.40 As per the verification memo, the complainant went inside the police booth while Sh. Sumit Sheoran/PW10 remained outside the police booth so as to not raise any suspicion in the mind of the suspect/accused and at about 5:55 pm, both of them came back to the parked CBI vehicle where independent witness Sh. Sumit Sheoran narrated the sequence of events and told the verification officer that complainant had met a person in police CC No. 48/2022 CBI v. Hari Ram 58/231 uniform near the police booth, had some conversation, and thereafter, the said police official & the complainant entered the police booth. He further informed that thereafter, the complainant came out, moved towards the parked CBI car and he followed him. Similarly was informed/narrated by the complainant who further told the verification officer that inside the police booth, the suspect, who is none other than the accused, demanded bribe of Rs. 5,000/- per month for allowing the functioning/running of the shop/travel business which after negotiation was settled as Rs. 4,000/- per month. Furthermore, the complainant was also directed by the accused to arrange the money by evening itself. In addition to the facts/sequence of events narrated by the complainant and the independent witness, the conversation recorded in the DVR was also heard, which corroborated their version. The SD Card, after it's investigation copy was made at the CBI office, was seized & sealed and the same has been duly proved on record as Ex. P-1 during the trial. The seal used in the proceedings was duly handed over to Sh. Sumit Sheoran/PW10 as stands duly proved on record. The verification memo Ex. PW6/B contains complete details of the verification proceedings.
6.41 Though it was vehemently argued by Ld. Defence Counsel that the complainant had not met the accused and he had met some other police official i.e. Head Constable Hari Ram, however, the said argument is absolutely untenable and has no merit whatsoever. There is just no doubt that it was the accused whom the complainant had met on the day of verification and it was he who had raised the demand of bribe/undue advantage.
CC No. 48/2022 CBI v. Hari Ram 59/231 The fact that it was the accused whom the complainant had met at Sarai Kale Khan police booth stands duly established not only from the CDR/CAF of the complainant i.e. Ex. PW1/F and the accused's mobile number i.e. Ex. PW1/D but also from the testimony of complainant/PW6, independent witness Sh. Sumit Sheoran/PW10 and Inspector Mahender Singh/PW14. CAF & CDR of mobile phone of the complainant and the accused, as has discussed above in detail, duly establish that on 04.05.2022 calls were exchanged between them and it was pursuant to these calls that the complainant met the accused at the police booth.
6.42 In addition to the CDRs it is to be seen that the complaint is/was accompanied with the photograph of the accused. This photograph was handed over by the complainant himself, enclosed with the complainant and the verification was conducted pursuant to the complaint. Hence at the time when the complainant met the accused he was well aware as to how the accused looks and therefore no occasion arises of any confusion or the complainant meeting some other police official.
6.43 Though it was argued by Ld. Defence counsel that the photograph was never proved or exhibited during the trial, the complainant never deposed about having submitted the photograph to CBI & even the independent witnesses did not depose about having seen the photograph during the investigation and therefore the said photograph has been placed on record after making manipulations, however, I find no merits in the said arguments. Once the complaint was exhibited there was no need to separately exhibit the photograph. The fact that CC No. 48/2022 CBI v. Hari Ram 60/231 the photograph was enclosed has been duly mentioned in the complaint Ex. PW6/A as "I am also enclosing the photo (printed on paper) of Sri Hari Ram" and therefore no question arises of any manipulation. Most importantly, it was not suggested to any prosecution witness except for PW17 that the said photograph is fabricated and placed on record by manipulation. Otherwise also I find no reason why the CBI, TLO or the Verification Officer etc. would manipulate, fabricate a document. They had no motive or enmity to falsely implicate the accused.
6.44 As regards the verification proceedings, meeting with accused Constable Hari Ram at the police booth and recording of conversation in Ex. P-1 on 04.05.2022, the complainant's/PW6's deposition reads as under:-
"Before leaving for Sarai Kale Khan, one DVR was arranged by Inspector Mahender Singh and the voice of independent witness Sumit was recorded in the same. Thereafter, Inspector Mahender Singh had asked me to make a call to Ct. Hari Ram from my mobile phone. The said call was not picked up by Ct. Hari Ram.
I again made a call to Ct. Hari Ram after reaching Sarai Kale Khan Police booth, the said call was connected. Ct. Hari Ram told me that he will be reaching the spot shortly as he was earlier on night duty.
At about 4-5 p.m I received a call from Ct. Hari Ram that he has reached the said police booth and asked me to meet him. Inspector Mahender Singh had told me that I alongwith witness Sumit will go out of the car to meet Ct. Hari Ram with the DVR on switched on mode.
Thereafter, I alongwith independent witness Sumit went to the police booth. I entered the booth while Sumit remained outside the booth. I met Ct. Hari Ram in the booth. He told me that monthly bribe amount in respect of 04 months was already due from me. I persuaded him to reduce the amount saying that Rs. 5000/- is too much and I would not be able to pay said amount as my business was also not going well. Thereafter, on my request, Ct. Hari Ram reduced the amount to Rs. 4000/- per month. Ct. Hari Ram asked me if I had brought money and when I said No, he asked me to come tomorrow with money. The said conversation was CC No. 48/2022 CBI v. Hari Ram 61/231 recorded in the DVR which was lying in switched on mode inside my jeans pant pocket.
Thereafter, I came out of the police booth and reached the car alaongwith the independent witness. In the car Inspector Mahender Singh switched off the DVR and took it from me and listened to the recorded conversation in the DVR. The Inspector asked me and the independent witness to narrate the sequence of events and we accordingly, told him whatever transpired during the incident. Thereafter, we left the spot with independent witness Sumit and Inspector Mahender Singh, for the CBI office. Ct. Hari Ram was wearing his police uniform when I met him in the police booth.
After reaching CBI office, Inspector Mahender Singh took out the memory card from the DVR and sealed the memory card and got the same signed from me as well as independent witness Sumit. The said seal and memory card were handed over to independent witness Sumit. Again said only said seal was given to independent witness in an envelope. I do not remember in whose possession the memory card remained but it was with CBI and was not handed over to independent witness Sumit. A verification memo dated 04.05.2022 was also prepared in respect of verification proceedings, which was signed by me, Inspector Mahender Singh and independent witness Sumit.
At this stage, attention of witness is drawn to verification memo (D-3). Witness identifies the same and his signature at point A. Verification memo is now exhibited as Ex. PW6/B (running into 05 pages). Inspector Mahender Singh and witness Sumit had also signed in my presence on Ex. PW6/B but today I am not able to identify their signatures. Thereafter, I was asked to come tomorrow i.e. on 05.05.2022 with the bribe amount of Rs. 16,000/- as demanded by Ct. Hari Ram.
At this stage, one yellow colour envelope bearing impression CFSL-2022/E-651, RC No. 24(A)/2022 and also exhibit Q-1 in CO 22/2022 remarked as Q1 has been produced by MHC(M). The same is opened with the permission of the court and found to contain one brown colour envelope in unsealed condition. The brown colour envelope is found to contain paper packing in respect of SD Card of make Simmtronics. The said paper packing contains one plastic cover further containing one SD Card. The paper packing bears impression Q1 in "CO-22/2022" and CFSL-2022/P65, Ex. "Q1 in CO-22/2022 remarked as Q1".
The witness is shown the paper packing cover. The witness identifies his signature on paper packing cover at point A. The paper cover alongwith SD card kept in plastic cover is now exhibited as Ex. P-1. The witness also identifies his signature on already opened brown colour envelope at point CC No. 48/2022 CBI v. Hari Ram 62/231 A. The same is now exhibited as Ex. P-2."
6.45 The above deposition of PW6 clearly establishes demand of bribe/ undue advantage by the accused. During his cross-examination, by Ld. Defence Counsel, PW6 stated as regards the meeting with accused on 04.05.2022, the calls exchanged between them and the demand raised by the accused as under:-
"On 04.05.2022, it took me around 20 minutes to reach in the vicnity of Sarai Kale Khan from CBI office. My phone was never taken by CBI official. Both voice calls and whatsapp calls were made and received. On 04.05.2022, the DVR was handed over to me in switched on mode at the moment when I reached the booth. At that time, Sh. Sumit Sheron was directed to accompany me and similar directions were given to me. The call was made while sitting in the car which was parked on the main road and there was traffic noise. There was no disturbance or hindrance in hearing the call/voice. The police booth which I visited on 04.05.2022, consists of two bed rooms, one barrack. There is a big parking outside the police booth. Sumit Sheorn was standing at a distance at around 5-7 yards from the police booth. Sumit Sheorn had on his own stopped at a distance of around 5-7 yards from the police booth. I came out of the police booth after 5-7 minutes. After coming out, I met Sh. Sumit Sheorn but he did not ask me about what transpired in the police booth. I alongwith Sumit Sheron went to the car and on reaching there, the CBI official switched off the DVR and asked me about what happened in the police booth and I told them about the demand raised by Ct. Hari Ram."
6.46 PW10 Sh. Sumit Sheoran during his examination in chief, corroborated the facts as recorded in verification memo Ex. PW6/B and while corroborating the testimony of PW6 he deposed as under:-
"The CBI officer arranged a new blank DVR and we were shown the same after taking it out from the packing and I was also told about the function of the DVR. A separate SD card of 16 GB was also arranged and same was inserted in the DVR to check its blankness. Thereafter, my introductory voice was recorded in said SD card in DVR.
CC No. 48/2022 CBI v. Hari Ram 63/231 Besides my introductory voice of complainant was also recorded.
On the instructions of Inspector Mahender Singh, complainant made telephonic Whatsapp call on the mobile phone of accused Hari Ram to know about his availability in the police station. The call was made by putting the mobile phone on speaker mode so as to record the conversation in DVR and further to enable us to know the likely conversation. The first call was not received by accused Hari Ram. After some time, complainant received a call from accused on his mobile phone and was asked to reach to Police chowki to meet the accused. Thereafter, I, Inspector Mahinder Singh and the complainant went to police chowki Sarai Kale Khan in the Honda Civic car of the complainant.
At the distance of about 100 mtr away from the police chowki the car was parked. The complainant was again asked to make a call to the accused after putting the mobile phone on speaker mode and during said call accused Hari Ram asked the complainant to come inside the police chowki. The DVR with the blank memory card was switched on and was put in the pocket of complainant and thereafter, I and the complainant got down from the car and went towards chowki. I was asked to watch the proceedings from some distance. Thereafter, complainant met one police official out side police chowki and he took the complainant inside while I kept standing outside. After some time complainant came out of the police chowki and went towards the parked car after seeing him, I also followed him and we both sat in the car where Inspector Mahender Singh was already there. The DVR was taken out from the pocket of the complainant and it was switched off. Thereafter, we all three came back to CBI office. We went to the cabin of DSP where the said recording of DVR was played and listened. A transcription was prepared of said DVR in my presence. The verification memo was also prepared by Inspector Mahender Singh in my presence upon which my signatures was also taken.
At this stage, witness is shown the verification memo (D-3) Ex. PW6/B. Witness identifies his signature on the same at point B on each page."
6.47 During the course of arguments Ld. Defence Counsel highlighted the statement of PW10 "On 05.05.2022, I first time met the suspect officer in the police booth at about 5 to 5:30 p.m after he was apprehended by the CBI. I do not CC No. 48/2022 CBI v. Hari Ram 64/231 remember, if I had seen any police personnel going inside or coming out from the police booth during the period I remained stationed outside the police booth on 04.05.2022" and argued that it was not the accused whom the complainant had met on 04.05.2022, however, I find no merits in the said arguments. PW10 during his deposition had categorically stated " Thereafter, complainant met one police official out side police chowki and he took the complainant inside while I kept standing outside" and he had duly identified the accused during the trial. It was not even once suggested to him that the complainant had never met the accused on 04.05.2022 or that the police official whom the complainant met on that day at the police booth was not accused/Constable Hari Ram or was some other police official. The word used by PW10 in the statement highlighted by Ld. Defence Counsel is "first time met". It is nowhere the prosecution case that PW10 had met the accused on 04.05.2022 or for that matter on 05.05.2022 before his apprehension post successful trap. Though he did not meet the accused on 04.05.2022 he had seen him and the complainant meeting at the police booth, from a distanace. Similarly, he had simply stated that " I do not remember, if I had seen any police personnel going inside or coming out from the police booth during the period I remained stationed outside the police booth on 04.05.2022". Whether any police official entered or left the police station is absolutely irrelevant. What is relevant is that the complainant and the accused had met at the police booth on 04.05.2022 as well as on 05.05.2022. As already discussed above, the meeting between the complainant and accused Hari CC No. 48/2022 CBI v. Hari Ram 65/231 Ram was pursuant to the telephonic calls between them as stands duly corroborated from the CDRs of their mobile phones.
6.48 Ld. Defence Counsel while relying upon Sudesh Kaushik (surpa) vehemently argued that shadow witness/ independent witness i.e. Sh. Sumit Sheoran/PW10 did not enter the police booth on the day of verification despite specific directions to remain with the complainant and see the transaction as well as overhear the conversation between them. It was argued that for reasons best known to PW10, he himself decided to remain at a distance from the police booth and admitted that he does not know what proceedings took place inside the police booth or with whom the complainant met in there. It was argued that the moment PW10 did not enter the police booth, it failed the entire purpose of joining the independent witness in the proceedings which is to ensure the genuineness of the proceedings.
6.49 As far as the above arguments are concerned, PW10 during his cross-examination explained as to why he did not enter the police booth on the day of trap. He did so so as to avoid raising any suspicion in the mind of the accused. In his words " I stayed outside the police booth as I thought that accompanying the complainant may arise to suspicion in the mind of suspect and he would not talk about the deal of bribe with the complainant". Nonetheless it stands duly proved on record that PW10 had followed the complainant to the police booth and saw the complainant meeting a police person in uniform who is/was CC No. 48/2022 CBI v. Hari Ram 66/231 none other than the accused. The relevant statement of PW6, PW10 and PW14 in this regard read as under:-
PW6 (examination in chief) "Thereafter, I alongwith independent witness Sumit went to the police booth. I entered the booth while Sumit remained outside the booth. I met Ct. Hari Ram in the booth." PW6 (Cross-examination) "Sumit Sheorn was standing at a distance at around 5-7 yards from the police booth. Sumit Sheorn had on his own stopped at a distance of around 5-7 yards from the police booth."
PW10 (examination in chief "..........I and the complainant got down from the car and went towards chowki. I was asked to watch the proceedings from some distance. Thereafter, complainant met one police official out side police chowki and he took the complainant inside while I kept standing outside."
PW10 (cross-examination) "............I was given instructions to remain close to the complainant before handing over the DVR. Inspector Mahinder Singh remained seated in the vehicle after the complainant and myself alighted the vehicle. We were instructed by Inspector Mahinder Singh to reach back to the same spot near the car after verification...................On the date of verification, I remained present at some distance at about 10 mtr or less than 20 mtr from the police booth, I stopped following the complainant when he proceeded to the police booth."
PW14 (examination in chief) "..........and Sh. Sumit Sheoren was asked to follow the complainant so as to watch and over hear the conversation between the complainant and accused Hari Ram. Sh. Sumit Sheoren was advised to maintain some distance from the complainant. Sh. Sumit Sheoren was keeping on watch on the complainant who was standing outside the police booth gate and talking to a police person in uniform. After sometime, complainant and the said police person who was infact accused Hari Ram and not known to Sh. Sumit Sheoren went inside the police booth."
6.50 As far as PW10's statement of the day of verification "It is correct that I do not know what proceedings took place inside the police booth or with whom the complainant met inside CC No. 48/2022 CBI v. Hari Ram 67/231 the police booth" is concerned, it has been discussed in detail in the later part of the judgment that it was the accused only with whom the complainant met on the day of verification and not any other police official. It has also been discussed above that PW10 categorically deposed that on the day of verification, the complainant had met a police official who was none other than the accused at the police booth and thereafter they both went inside. Whatever transpired inside the police booth, between the two of them was duly recorded in Ex. P-1 which has been exhaustively dealt in this judgment. Therefore just because PW10 was not privy to the conversation is of no consequence. It is settled law that it is the quality of evidence that matters and not the quantity. Just because the shadow witness did not overhear the conversation which took place between the complainant and the accused nor he witnessed the exchange of money/bribe that by itself does not entitle the accused to acquittal once there is sufficient credible evidence on record i.e. oral as well as scientific of not only the demand but the acceptance as well.
6.51 Accordingly Sudesh Kaushik (supra) does not come to the help of the accused. As far as Mohan Lal (supra) is concerned, the facts are/were entirely different as in the said case out of two complainant one was not examined and the other did not support the prosecution case. Furthermore independent witness also did not support the prosecution case. Whereas in the case at hand though not in its entirety, however, the complainant did support the prosecution case which found further strength from the testimony of two independent witnesses, who duly CC No. 48/2022 CBI v. Hari Ram 68/231 supported the prosecution case apart from the other, scientific/expert evidence.
6.52 In addition to PW10, Verification Officer Inspector Mahender Singh/PW14 who had also gone to the spot i.e. near the police booth alongwith the complainant and the independent witness Sh. Sumit Sheoran/PW10 categorically proved that it was accused Hari Ram whom the complainant had met at the police booth on 04.05.2022. The relevant portion of his deposition in this regard reads as under:-
"At around 5:15 pm, I alongwith the complainant and the independent witness left for Sarai Kale Khan police booth in complainant's car and reached there at about 5:25 pm. We parked our car near the coolie room which was near the police booth. Another call was made from the complainant's mobile to accused Hari Ram mobile and accused Hari Ram upon answering the call asked the complainant to immediately come to the police booth. This call was also recorded in the memory card with the aid of the DVR as the mobile phone of the complainant was on speaker mode. The DVR in 'switched on and hold mode' was kept in the left side pant pocket of the complainant and Sh. Sumit Sheoren was asked to follow the complainant so as to watch and over hear the conversation between the complainant and accused Hari Ram. Sh. Sumit Sheoren was advised to maintain some distance from the complainant. Sh. Sumit Sheoren was keeping on watch on the complainant who was standing outside the police booth gate and talking to a police person in uniform. After sometime, complainant and the said police person who was infact accused Hari Ram and not known to Sh. Sumit Sheoren went inside the police booth. Complainant and Sh. Sumit Sheoren were advised to come back at the parked vehicle after meeting with the accused"
At around 5:55 pm, complainant came back towards me near the parked vehicle and he was followed by Sh. Sumit Sheoren.
I asked Sh. Sumit Sheoren to narrate whatever he had witnessed. Sh. Sumit Sheoren told me that he had followed the complainant from at a distance as he was instructed and he saw complainant talking to a police person in uniform at the gate of the police booth and thereafter, the complainant and said police personnel went inside the CC No. 48/2022 CBI v. Hari Ram 69/231 police booth. Before Sh. Sumit Sheoren disclosed me the said fact, I took back the DVR from the complainant and switched it off. Thereafter, I asked the complainant to disclose to me as to what transpired between him and the accused. Complainant told to me that when he was going to the police booth, he was followed by Sh. Sumit Sheoren as instructed. Thereafter, he met the accused at the police booth, talked to him for a while and then both of them went inside. Complainant further told me that inside the police booth he sat on a charpai and accused Hari Ram sat in front of him in a chair. He further told me that accused Hari Ram initially demanded Rs. 5,000/- from him for allowing him to run his shop smoothly and upon negotiating he reduced it to Rs. 4,000/- per month. The complainant further told me that accused Hari Ram asked him to pay Rs. 4,000/- per month to him that day itself in the evening (objected to as hearsay) (objection over ruled as being first account, first person narration on the witness). Thereafter, I switched on the DVR and listened the conversation as recorded in the DVR at the spot itself particularly regarding the demand of bribe initially at the rate of Rs. 5,000/- per month and then its reduction to Rs. Rs. 4,000/- per month. Thereafter we left the spot and reached the CBI office at around 06.10 p.m. I removed the memory card from the DVR and prepared a copy of the same with the help of Write blocker in the presence of the complainant and independent witness. The memory card was kept in its cover and marked as Q1 in CO no. 22/2022. I, complainant and independent witness affixed our signatures on the cover. Thereafter it was put in another envelope. Again three of us signed on the said envelope. On the said envelope the particulars Q1 in CO no. 22/2022 was mentioned. The said number was of the complaint. Thereafter the verification proceedings were drawn on the said day in the form of verification memo and recommended registration of FIR against accused Hari Ram. The verification memo was signed by the independent witness, complainant and myself.
At this stage, attention of the witness is drawn to verification memo dated 04.05.2022 already Ex. PW6/B running into 5 pages. After seeing the same witness identified the verification memo as well as also identified his signatures at point C and that of complainant and independent witness A and B respectively on all the pages. On the verification memo the impression of the CBI seal was also taken at point D on all pages and the seal was handed over to the independent witness with directions to produce the seal as and when required."
CC No. 48/2022 CBI v. Hari Ram 70/231
6.53 Not even once it was suggested to PW14 that the
police personnel with whom the complainant had talked at the gate of the police booth on 04.05.2022 was not accused Hari Ram or that the complainant and accused Hari Ram never went inside the police booth. Having not suggested so and having not discredited the prosecution case in this regard I find no reason to disbelieve PW14 or the prosecution case based upon the same. Though Ld. Defence Counsel highlighted the statement made by PW14 during his cross-examination "I personally had not witnessed the complainant and the accused meeting with each other as I was sitting in the vehicle. Since I remained seated in the vehicle, therefore, I am not personally aware/witnessed as to whom the complainant had met, talked or what had transpired in the police post", however, as discussed above, there is sufficient evidence on record which proves that the complainant had met the accused only and no other police official.
6.54 The deposition of PW14 is not mere hearsay as was argued by Ld. Defence Counsel and in fact the said statement is admissible in evidence and highly relevant in view of Section 6 of the Indian Evidence Act 1872 which is reproduced hereunder:-
"6. Relevancy of facts forming part of same transaction. Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant whether they occurred at the same time and place or at different times and places.
Illustrations
(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact.
(b) A is accused of waging war against the [Government of India] [Substituted by A.O. 1950, for "Queen".]by taking part in an armed insurrection in which property is destroyed, troops are attacked, and goals are broken open. The occurrence of these CC No. 48/2022 CBI v. Hari Ram 71/231 facts is relevant, as forming part of the general transaction, though A may not have been present at all of them.
(c) A sues B for a libel contained in a letter forming part of a correspondence. Letters between the parties relating to the subject out of which the libel arose, and forming part of the correspondence in which it is contained, are relevant facts, though they do not contain the libel itself.
(d) The question is, whether certain goods ordered from B were delivered to A. The goods were delivered to several intermediate persons successively. Each delivery is a relevant fact."
6.55 The principle of law embodied in Section 6 of the Evidence Act is usually known as the rule of res gestae recognised in English law. The essence of the doctrine is that a fact which, though not in issue, is "so connected" with the fact in issue "as to form part of the same transaction" becomes relevant by itself. This rule is, roughly speaking, an exception to the general rule that hearsay evidence is not admissible. The rationale in making certain statement or fact admissible under Section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But it is necessary that such fact or statement must be a part of the same transaction. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or at least immediately thereafter so as to rule out any time for concoction. But if there was an interval, however slight it may be, which was sufficient enough for fabrication then the statement is not part of res gestae.
6.56 The testimony of the Verifying Officer/PW14 that the complainant immediately after coming out of the police station, having just met accused, told him about the demand raised by the accused is admissible in evidence in terms of CC No. 48/2022 CBI v. Hari Ram 72/231 Section 6 of the Indian Evidence Act 1872 and further proves that the demand was indeed raised by the accused. The spontaneity with which the complainant informed PW14 about the demand, absence of time interval between the meeting and the information/statement regarding the demand renders his statement admissible against the accused even though he personally did not witness the demand, as was otherwise vehemently argued by Ld. Defence counsel. As held in Neeraj Dutta (supra) "Normally, a hearsay witness would be inadmissible, but when it is corroborated by substantive evidence of other witnesses, it would be admissible".
6.57 During the course of arguments, Ld. Defence Counsel tried to negate the prosecution's case of demand while laying much emphasis on the statement made by PW6 during his examination in chief as well as cross-examination. It was argued that according to PW6 on the day of demand he had not met the accused/Constable Hari Ram but had met some other Hari Ram i.e. Head Constable Hari Ram who was also posted in the same police station. Ld. Defence Counsel highlighted the following statement of PW6, made during his examination in chief & cross- examination by Ld. PP for the CBI, to buttress his case:-
Examination-in-chief "After receipt of the call from the accused, I alongwith the CBI team proceeded towards the police booth. The CBI officials halted 100 meters before the police booth and asked to go to police booth and to handover the money to accused Hari Ram. When I entered the police booth, I saw some police officials in uniform and some people in civil dress sitting there. I greeted them and told them that I wanted to meet Hari Ram. One of them said, he was Hari Ram with whom I shook hand but I told him that I had met some other person with the name Hari Ram yesterday and I CC No. 48/2022 CBI v. Hari Ram 73/231 wanted to meet the same Hari Ram. He told that there was one more Head Ct. Hari Ram in their police station and asked me to wait as he was expected to come soon. After waiting for 15 minutes, I was advised to make a call on a phone number of Head Ct. Hari Ram. However, I did not make any call and the said person Hari Ram who was present in civil dress in the police station peeped in their adjoining room and said that the clothes of Head Ct. Hari Ram were hanging and, therefore, he was likely to soon come to the police station. However, I told him that I had brought some "Saaman" (Rs. 8,000/-) for HC Hari Ram and in the presence of aforementioned persons who were present in the police booth, I kept said money in the drawer of the table of the room where the said clothes of HC Hari Ram were hanging."
Cross-Examination "On 05.05.2022, at around 4:35 pm I received a call from accused Hari Ram and on the call he gave me directions to come inside the police booth. Again said: I do not know whether he is Constable or Head Constable.
I was given a DVR in switched on mode by the CBI officers which I had carried with me on 05.5.2022. When I entered the police booth, 5-6 persons were sitting there out of which 2/3 were in uniform. I inquired about Hari Ram, upon which, one person claimed himself to be Hari Ram but I told him that he is not the Hari Ram whom I met yesterday. On this, the person who was sitting there asked me to wait stating that Hari Ram would be coming in a while. After 2-3 minutes, I again inquired from the persons sitting there about Hari Ram upon which, they asked me to call Hari Ram. I also told them that I was carrying some "Saaman" for Hari Ram i.e. the money and I had kept the same in the drawer of the table. It is correct that I kept the money in the drawer as directed by Hari Ram. When I was about to leave the police booth, Hari Ram was standing at the gate of the police booth and I told him that I have brought the money and I tried to take out the money from the drawer and hand it over to Hari Ram but Hari Ram asked me to let it be in the drawer itself and asked me to sit."
6.58 However, I have absolutely no hesitation in concluding that the above statements, so far they are inconsistent with the prosecution case, are nothing but absolute falsehood, made at the behest of the accused. The confusion which the CC No. 48/2022 CBI v. Hari Ram 74/231 complainant tried to create, but could not succeed on account of other material on record, is/was that on the day of verification he had met one HC Hari Ram and not accused Ct. Hari Ram, however, there is just no doubt that on the day of the verification as well as the trap, the complainant had met accused Ct. Hari Ram only and no other police official by the name of HC Hari Ram.
6.59 As discussed above, the meeting between the complainant and the accused took place pursuant to the telephonic call as stands duly established from the CDR and the testimony of the other prosecution witness including independent witnesses. Infact, even while making inconsistent statement, the complainant stated "Because I was told by my Staff that few persons from the police chowki were visiting my shop and were demanding money and they also handed over me the phone number of one of them whom I made a call on phone and subsequently met him on 04.4.2022" which further proves that the complainant had met the accused only and the meeting was subsequent to the phone calls as proved by the CDR. The number on which the call was made belongs to accused Constable Hari Ram and not any other police official or Head Constable Hari Ram as the CDRs squarely establish. Moreover, he was already aware about how the accused looks as he had annexed his photograph with the complaint. Therefore, his claim of having met HC Hari Ram and not Ct. Hari Ram is a blatant lie, stated at the behest of the accused. It will also be pertinent to highlight that during his entire examination in chief, before his cross-
examination started he had always referred to the accused as CC No. 48/2022 CBI v. Hari Ram 75/231 Constable Hari Ram and he did not even once refer to him as HC Hari Ram.
6.60 PW6's lies got further exposed when he stated " I cannot identify HC Hari Ram as I met him only for a short duration only". Not only he had met Ct. Hari Ram and not HC Hari Ram but it was not a short duration meeting as was claimed by PW6/complainant and for which reasons, he claimed that he cannot identify the said HC Hari Ram. The reason for not identifying the said HC Hari Ram was because he had never met him and he had met only Ct. Hari Ram. As per the recorded conversation in Ex. P-1, the duration of their meeting was around 13 minutes 18 seconds. It was sufficient duration/time to be well acquainted with someone's looks, appearance and to not to forget a person's face. Moreover, according to him he had allegedly met the said HC Hari Ram again on the trap day when he was about to leave the police booth as HC Hari Ram was standing at the gate of the police booth, which statement otherwise is false to that extent as he had met Ct. Hari Ram only at the police booth and not the other Hari Ram/HC Hari Ram. Nonetheless if he allegedly met him twice he would definitely identify/recognize him if he was shown to him. The fact remains that this entire story was concocted just to give benefit to the accused. The discussion as above, the testimony of the independent witness and the verification officer, recorded conversations & the CDRs leaves no doubt that the complainant had met accused Hari Ram only on the day of verification when the demand of bribe was raised and it was him only whom he met on the day of the trap and the bribe amount was paid to him only on that day.
CC No. 48/2022 CBI v. Hari Ram 76/231
6.61 Just like the day of verification, similarly on the day
of the trap, the meeting between the accused and the complainant took place pursuant to the telephonic calls as duly recorded in Ex. P-1 & Ex. P-6. At the cost of repetition, the statements made by PW6 during his cross-examination are reproduced here under:-
"Because I was told by my Staff that few persons from the police chowki were visiting my shop and were demanding money and they also handed over me the phone number of one of them whom I made a call on phone and subsequently met him on 04.4.2022................
On 05.05.2022, at about 4:35 pm I received a call from accused Hari Ram and on the call he gave me directions to come inside the police booth."
6.62 The recordings in Ex. P-1 & Ex. P-6, especially Ex. P-6, alongwith their transcripts which have been discussed in detail in this judgment leaves no doubt that the complainant had met only accused Ct. Hari Ram. The type of conversation which complainant had with Ct. Hari Ram on 05.5.2022 i.e. the trap day shows a continuity, conversation with a known person and not someone whom the complainant would meet for the first time. Had the complainant met HC Hari Ram on 04.05.2022 and Ct. Hari Ram on 05.05.2022, the conversation would have been entirely different. Had he met two different individuals on these two different dates, the talks which took place on 05.5.2022 would not have taken place. The transcript Ex. PW10/C has been discussed in detail in the later part of the judgment and the relevant portion of the said transcript as recorded in Ex. P-6 which further proves that it was the same Hari Ram/accused whom the complainant had met on both the dates, in this regard is reproduced here under:-
CC No. 48/2022 CBI v. Hari Ram 77/231
6.63 It will also be worthwhile to point out that though he
tried to create confusion about having met two different Hari Ram i.e. Head Constable Hari Ram and Constable Hari Ram, nonetheless, as he himself was not sure and was deposing falsely, therefore, did not know what exactly to state, how much to lie that he also went on to state " Again said: I do not know whether he is Constable or Head Constable".
6.64 The fact that it was the accused who had accepted the bribe amount and it was at his instance that the same was recovered during the trap proceedings, as stands duly proved on CC No. 48/2022 CBI v. Hari Ram 78/231 record through the hand washes and the testimony of PW17, PW10 & PW13, which has been discussed in detail at the time of dealing the acceptance aspect, further proves that the demand was raised by the accused only and the confusion he tried to create regarding the identity of the accused was solely on account of the fact that he was won over by him and wanted to save him, hence he had deposed falsely. In fact during cross-examination by Ld. Defence Counsel, PW6 stated as under:-
"I alongwith Sumit Sheron went to the car and on reaching there, the CBI official switched off the DVR and asked me about what happened in the police booth and I told them about the demand raised by Ct. Hari Ram. (Vol. I know only Ct. Hari Ram whom I had met and I do not know any Head Ct. Hari Ram who was also claiming himself to be Hari Ram)."
6.65 Most importantly, the CDR of the complainant's mobile phone i.e. Ex. PW1/F & that of the accused i.e. Ex. PW1/D as well as the recorded conversation in memory card Q2 itself proves the falsity of the complainant's claim that he had met some other Hari Ram/HC Hari Ram and not the accused at the time of acceptance/trap proceedings. The calls which were exchanged between the accused and the complainant were duly recorded in memory card Ex. P-6 as was not only proved by PW6 but also by PW10, PW13 & PW17 etc. The recorded conversations and their transcripts Ex. PW10/A (colly) & Ex. PW10/C (colly) leaves absolutely no doubt that it was accused only whom the complainant had met and not any other police official/HC Hari Ram and that the story created in this regard is nothing but an afterthought. The conversation/the transcript of file no. 220505_1446 & 220505_1638 categorically proves that accused Hari Ram was present at the police booth and it was only CC No. 48/2022 CBI v. Hari Ram 79/231 once he himself i.e. accused Hari Ram confirmed his presence at the booth that the complainant went to meet him there. The conversation/the transcript of file no. 220505_1700 unambiguously proves that the complainant had met the accused and not any other police official/HC Hari Ram.
6.66 At this stage, it will be worthwhile to point out that as is evident from Ex. P-6 & Ex. PW10/C, it further stands proved vide Ex. PW7/A & Ex. PW7/B, as proved by PW7 to PW9, that accused Ct. Hari Ram was posted at Police Post Sarai Kale Khan on 04.05.2022 i.e. on the day of verification as well as on 05.05.2022 i.e. at the time of trap proceedings and his presence at the police booth was according to his official duties. As per Ex. PW7/B, accused Hari Ram was on night duty from 10:00 pm to 6:00 am on 04.5.2022 i.e. the night previous to the trap day. This further proves that it was accused Hari Ram only whom the complainant had met on 05.5.2022. Furthermore, as per the recording in Ex. P-6 as well as it's transcript Ex. PW10/C (colly), the complainant expressed sorry for not being able to meet the accused on 04.5.2022 itself and from Ex. P-1, it's transcript Ex. PW10/A (colly) it is evident that the accused had asked the complainant to arrange the money by the evening of 04.5.2022 itself. All this, the continuity in the talks, the CDRs and the recordings leaves no doubt that it was the accused only whom the complainant had met. The image of Ex. PW10/C (colly) proving the said facts and also the fact that demand was raised afresh at the time of acceptance is reproduced hereunder:-
CC No. 48/2022 CBI v. Hari Ram 80/231 CC No. 48/2022 CBI v. Hari Ram 81/231 CC No. 48/2022 CBI v. Hari Ram 82/231 CC No. 48/2022 CBI v. Hari Ram 83/231 CC No. 48/2022 CBI v. Hari Ram 84/231 CC No. 48/2022 CBI v. Hari Ram 85/231 6.67 The above transcript and the recording in Ex. P-6 leaves no doubt that on both the dates it was the accused only whom the complainant had met. Had he met two different Hari Ram's, conversation in Ex. P-6 would have been entirely different. There is nothing in Ex. P-6 or Ex. PW10/C to suggest that complainant had met accused Hari Ram for the first time on 05.5.2022 because had that been the case at the very beginning of the conversation he would have expressed surprise/shock and told the accused that he does not know him or that he had not met him on 04.5.2022. Similarly, there is nothing in the conversation that he was suggested by the other police officials to call the said Hari Ram/HC Hari Ram whom he had allegedly met on 04.5.2022. Also there is nothing in the conversation/recording to the effect that when he was leaving the police booth on 05.5.2022, the said HC Hari Ram came there and he offered to take the money out of the drawer and handed over to him but HC Hari Ram refused. Hence, there is just no doubt that on both the dates the complainant had met the accused only i.e. Ct. Hari Ram and it was he who had raised the demand and that the bribe amount was kept in the table's drawer by the complainant only as per the directions of the accused. The transcript clearly establishes that the complainant told the accused that he had brought the money, as was demanded by him and the accused instructed him to keep the money in the table's drawer.
6.68 If indeed complainant had met Constable Hari Ram/accused for the first time on 05.05.2022 and was advised to call the other Hari Ram/Head Constable Hari Ram, by Constable Hari Ram/accused and other police officials present in the police CC No. 48/2022 CBI v. Hari Ram 86/231 booth, then why he did not make the call could not be explained by the complainant. Fact remains that he had met Constable Hari Ram/accused only on both the dates, which meetings took place pursuant to, in continuity of the calls and therefore he did not make any such call nor was he ever advised by the accused or by other police officials to do so. It has also been discussed, at the time of dealing with the acceptance aspect, that it sans logic that PW6 would keep the money/bribe amount in the table's drawer on the instructions of someone else and not on the instructions of the person who had demanded it. He would not have left the police booth without ensuring that the amount was received by the person who had been demanding it and harassing for it i.e. accused Constable Hari Ram.
6.69 However, just because PW6 did not support the prosecution story on certain counts, made few false statements, turned hostile, that by itself does not render his entire testimony worthless or washed of the record. The law is fairly well settled now as regards the weightage to be attached to the testimony of a witness who has been declared hostile. Evidence of such a witness need not be totally rejected or treated as effaced or washed off the record altogether. It can be accepted to the extent his version is found to be dependable and is consistent with the case of the prosecution or defence on a careful scrutiny thereof (Balu Sonba Shinde v. State of Maharashtra 2003 SCC (Crl.)
112).
6.70 In Shamsher Singh @ Rameshwar v. State of Haryana, (P&H) 2006(2) R.C.R.(Criminal) 867 it was further CC No. 48/2022 CBI v. Hari Ram 87/231 held that these days it is not an uncommon practice that a witness is won over and he turns hostile.
6.71 Similarly in Nisar Khan @ Guddu v. State of Uttaranchal (SC) 2006(1) Apex Criminal 340 though the PWs turned hostile/resiled from their statement the court upheld the conviction while observing that it seemed PWs were won over either by money, by muscle power, by threats or intimidation, but same cannot form the basis of acquitting the accused. Similar observation were made in Manoj Kumar v. State of Punjab (P&H) (D.B.) 2005(2) R.C.R.(Criminal) 813 and Swaran Singh v. State of Punjab (SC) 2000(2) R.C.R.(Criminal) 762.
6.72 In T. Shankar Prasad vs State Of Andhra Pradesh AIR 2004 SUPREME COURT 1242 it has been held as under:-
"The fact that PW-1 did not stick to his statement made during investigation does not totally obliterate his evidence. Even in criminal prosecution when a witness is cross-examined and contradicted with the leave of Court by the party calling him, his evidence cannot as a matter of law be treated as washed off record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process the credit of the witness has not been completely shaken he may after reading and considering the evidence of the said witness, accept in the light of other evidence on record that part of his testimony which he found to be creditworthy and act upon it. As noted above, PW-1 did not totally resile from his earlier statement. There was only a half- hearted attempt to partially shield A-
...............................In State of U.P. v. Dr. G.K.Ghosh (AIR 1984 SC 1453) it was observed that in case of an offence of demanding and accepting illegal gratification, depending on the circumstances of the case, the Court may feel safe in accepting the prosecution version on the basis of the oral evidence of the complainant and the official witnesses even if the trap witnesses turn hostile or are found not to be independent. When besides such evidence, there is circumstantial evidence which is CC No. 48/2022 CBI v. Hari Ram 88/231 consistent with the guilt of the accused and not consistent with his innocence, there should be no difficulty in upholding the conviction."' 6.73 In Attar Singh vs State of Maharashtra AIRONLINE 2012 SC 466 it was held as under:-
"13. .......... It could not be ignored that when a witness is declared hostile and when his testimony is not shaken on material points in the cross-examination, there is no ground to reject his testimony in toto as it is well-settled by a catena of decisions that the Court is not precluded from taking into account the statement of a hostile witness altogether and it is not necessary to discard the same in toto and can be relied upon partly. If some portion of the statement of the hostile witness inspires confidence, it can be relied upon. He cannot be thrown out as wholly unreliable. This was the view expressed by this court in the case of Syed Akbar vs. State of Karnataka reported in AIR 1979 SC 1848 whereby the learned Judges of the Supreme Court reversed the judgment of the Karnataka High Court which had discarded the evidence of a hostile witness in its entirety. Similarly, other High Courts in the matter of Gulshan Kumar vs. State (1993) Crl.L.J. 1525 as also Kunwar vs. State of U.P. (1993) Crl.L.J. 3421 as also Haneefa vs. State (1993) Crl.L.J. 2125 have held that it is not necessary to discard the evidence of the hostile witness in toto and can be relied upon partly. So also, in the matter of State of U.P. vs. Chet Ram reported in AIR 1989 SC 1543 = (1989) Crl.L.J. 1785; it was held that if some portion of the statement of the hostile witness inspires confidence it can be relied upon and the witness cannot be termed as wholly unreliable. It was further categorically held in the case of Shatrughan vs. State of M.P. (1993) Crl.L.J. 3120 that hostile witness is not necessarily a false witness. Granting of a permission by the Court to cross-examine his own witness does not amount to adjudication by the Court as to the veracity of a witness. It only means a declaration that the witness is adverse or unfriendly to the party calling him and not that the witness is untruthful. This was the view expressed by this Court in the matter of Sat Paul vs. Delhi Administration AIR 1976 SC
294. Thus, merely because a witness becomes hostile it would not result in throwing out the prosecution case, but the Court must see the relative effect of his testimony. If the evidence of a hostile witness is corroborated by other evidence, there is no legal bar to convict the accused. Thus testimony of a hostile witness is acceptable to the extent it is corroborated by that of a reliable witness. It is, therefore, open to the Court to consider the evidence and there is no objection to a part of that evidence being made use of in support of the prosecution or in support of the accused."
CC No. 48/2022 CBI v. Hari Ram 89/231
6.74 In Neeraj Dutta (supra) it has been held as under:-
"52. From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross- examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-
examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto.
67. Therefore, this Court cautioned that even if a witness is treated as "hostile" and is cross-examined, his evidence cannot be written off altogether but must be considered with due care and circumspection and that part of the testimony which is creditworthy must be considered and acted upon. It is for the judge as a matter of prudence to consider the extent of evidence which is creditworthy for the purpose of proof of the case. In other words, the fact that a witness has been declared "hostile" does not result in an automatic rejection of his evidence. Even, the evidence of a "hostile witness" if it finds corroboration from the facts of the case may be taken into account while judging the guilt of the accused. Thus, there is no legal bar to raise a conviction upon a "hostile witness" testimony if corroborated by other reliable evidence."
6.75 In Prithvi Singh Yadav (supra) it was held by the Hon'ble High Court of Delhi as under:-
"The factum of complainant turning hostile by itself would not lead to finding of acquittal. It is open to the prosecution to prove the demand of illegal gratification by relying on other witnesses and leading other including circumstantial evidence. When a witness turns "hostile" his evidence is not discarded automatically. Rather, a careful and circumspect endeavour is made to cull out that part of the testimony which is creditworthy and corroborated by other reliable evidence."' CC No. 48/2022 CBI v. Hari Ram 90/231 6.76 During the course of arguments, Ld. Defence Counsel laid much emphasis on the statement made by DW1 and DW4, according to which, on the day of trap i.e. 05.05.2022 when the complainant came to the police booth and asked to meet Hari Ram, accused Constable Hari Ram stood up and told him that he was Hari Ram upon which the complainant told him that he had met some other Hari Ram yesterday i.e. on 04.05.2022 and upon this Constable Hari Ram told the complainant that he might have met Head Constable Hari Ram and he can wait for him at the police booth as he was about to come. It was argued by Ld. Defence Counsel that the law is well settled that the defence witnesses are entitled to equal treatment at par with the prosecution witness and therefore there is no reason to disbelieve DW1 and DW4 or that their testimony is a tainted one. It was argued that the testimony of DW1 & DW4 itself proves that the complainant had never met the accused on 04.05.2022 and instead he had met Head Constable Hari Ram on that day, therefore, no demand was ever raised by the accused. However, I find no merits in the said arguments.
6.77 No doubt DW1 deposed as under:-
"On 05.5.2022 at around 5:00 pm, Pramod Singh Tomar came in police booth while I & others were present there. After Pramod Singh Tomar came inside the booth, he said that he wants to meet Hari Ram. Accused Hari Ram at that time stood up and said that he was Hari Ram and on this, Pramod Singh Tomar shook hand with him. At that time, Pramod said that yesterday i.e. 04.5.2022, he had met some other person named Hari Ram and accused Hari Ram is not the same person with whom, he had met yesterday. On this, accused Hari Ram stated to Pramod that he might have met Head Ct. Hari Ram and he may wait by saying that Head Ct. Hari Ram must be coming. On this, Pramod sat on the chair in front of the table and waited for around 15-20 minutes. I CC No. 48/2022 CBI v. Hari Ram 91/231 do not know who exactly but one of the police official present there asked Pramod to call Head Ct. Hari Ram. Accused Ct. Hari Ram looked into the room and found the uniform as well as other clothes of Head Ct. Hari Ram were hanging on the wall and he told Pramod that he must be about to come."
and on similar lines is the deposition of DW4, however, considering the overall facts & circumstances of the case, I have no hesitation in concluding that DW1 and DW4 deposed falsely in favour of the accused in order to save him. Being his colleague, being posted in the same police station/chowki they had all the reasons to depose falsely. It has already been discussed above that no doubt remains that on both the occasions i.e. on the day of verification as well as the day of trap, complainant had met accused Constable Hari Ram only, not Head Constable Hari Ram and that both these meetings took place pursuant to & in continuation of the phone calls between them. The CDR and the other material on record completely negates the claim of DW1 and DW4.
6.78 In fact not only DW1 & DW4 deposed falsely that the complainant on meeting Constable/accused Hari Ram on 05.05.2022 told him that he had met some other Hari Ram on 04.05.2022 but even on the aspect of the acceptance of bribe amount, which acceptance has been dealt in the later part of this judgment, they made false statements just to benefit the accused. The demand as well as the acceptance stands duly proved on record in view of the oral testimony of the complainant, independent witnesses as well as the scientific/forensic evidence and DW1 & DW4's claim just like the accused's that the money was kept by the complainant in the drawer in a clandestine CC No. 48/2022 CBI v. Hari Ram 92/231 manner is absolute falsehood. Though they claimed that they saw and objected to the complainant fiddling with the table's drawer, however, surprisingly and rather deliberately they did not see or state that they saw the the complainant keeping the money in table's drawer. If indeed they had seen and objected to the complainant fiddling with the drawer, then they would have also witnessed the complainant keeping the money in it. This is more so when they claimed that they were aware about the criminal antecedents of the complainant. That being the case it is highly inconceivable that they would have allowed him to enter the chowki/booth much least fiddle with the table's drawer. In fact PW6 claimed "However, I told him that I had brought some "Saaman" (Rs. 8000/-) for HC Hari Ram and in the presence of aforementioned persons who were present in the police booth, I kept said money in the drawer of the table of the room where the said clothes of HC Hari Ram were hanging.............I also told them that I was carrying some "Saaman" for Hari Ram i.e. the money and I had kept the same in the drawer of the table........I had kept the money after telling everyone present there that I am keeping money in the drawer". Had that been the case, DW1 & DW4 and for that matter other police officials present there would not allowed the complainant to keep the money in drawer under any circumstances. In fact truth remains as was stated by PW6 "It is correct that I kept the money in the drawer as directed by Hari Ram" and as is evident from Ex. P-6, the money was kept by the complainant in the table's drawer on the directions, instructions of the accused. During his cross-examination by Ld. Defence Counsel, PW6 stated "Vol. I was trying to give him money but he asked me to keep the same in the drawer." The CC No. 48/2022 CBI v. Hari Ram 93/231 relevant image of the transcript Ex. PW10/C completely corroborating the said facts in this regard is reproduced as under:-
CC No. 48/2022 CBI v. Hari Ram 94/231
6.79 It is also to be noted that neither DW1 nor DW4
gave any written representation or any complaint to the SHO or ACP or the Commissioner of Police or for that matter CBI or before any court that the accused has been falsely implicated which they would have definitely done had the accused been falsely implicated in their presence.
6.80 It will also be pertinent to highlight that from the recordings and the transcripts, as have been reproduced above, it emerges on record that at the time when the demand was raised and bribe/undue advantage was accepted by the accused, the accused claimed that he had to not only satisfy his superiors by giving monthly but that he had staff also to take care of and he had to share the bribe with the staff. Some of the extracts of the transcripts read as "Call upper tak pahunch jaati hai baat ko satisfied karna hota hai ussko.......", "Iss baar kam se kam mera 15 hazar rupey...." , "Teen de gaya.....chaar to staff hai mera inko laga ke". This explains why DW1 & DW4 deposed in facour of the accused.
6.81 Most importantly, the accused did not care to examine Head Constable Hari Ram in his defence despite the claim that the complainant had met Head Constable Hari Ram and not him on the day of verification. No efforts whatsoever were made to prove the same.
CC No. 48/2022 CBI v. Hari Ram 95/231
6.82 Ld. Defence Counsel also laid emphasis on the
statement of PW12/ASI Rohitash Saini who stated as "It is correct that apart from accused Hari Ram there was one another official by the name of Hari Ram i.e. HC Hari Ram posted at PS Sunlight Colony. The said HC Hari Ram might have visited the Chowki. Again said: He used to come to the Chowki " and argued that it was Head Constable Hari Ram whom the complainant had met on 04.05.2022 and not the accused, however, I find no merits in his arguments. The discussion as above leaves absolutely no doubt that it was accused Constable Hari Ram whom the complainant had met on 04.05.2022 and that he did not meet any other police official or HC Hari Ram on 04.05.2022 or for that matter 05.05.2022. Fact remains accused Constable Hari Ram tried to exploit the fact that another police official with the same name as his was posted at Police Station Sunlight Colony and create confusion, in collusion/connivance with the complainant, in the mind of the court, but he miserably failed to do so. There is absolutely no doubt that it was the accused only whom the complainant had met. This is more so, when the accused miserably failed to prove that he was not present at police post Sarai Kale Khan either on 04.05.2022 or on 05.05.2022 and also failed to examine HC Hari Ram in support of his claim. If indeed it was HC Hari Ram whom the complainant had met on 04.05.2022, then the accused would have definitely examined the said HC Hari Ram to prove his case. Infact the testimony of PW7, PW8 & PW9 as discussed above coupled with the CDR, Cell ID Chart of the accused mobile phone leaves no doubt about the presence of the accused at the police booth on both the dates at the time of verification and trap proceedings.
CC No. 48/2022 CBI v. Hari Ram 96/231
6.83 The CDR & the Cell ID Chart of the accused's
mobile no. 9999028935 as well as the complainant's mobile no. 8920150174 as discussed above coupled with Ex. P-1 and Ex. PW10/A (colly) establish that the first call on the day of verification was made by the complainant to the accused at about 14:31:06 hours, however, the said call could not be connected and thereafter another call was made immediately at 14:31:40 hours. During the second call the accused informed the complainant that he will come to the police booth in the evening, after around 1 to 2 hours. The third call on the said day was made at about 17:27 hours and during the said call the accused informed the complainant that he has reached the police booth and asked the complainant to come there. In fact during the said call the accused told the complainant "Haa bus mein hi hoon abhi booth pe aa jao" i.e. he was alone at the police booth which further rules out presence of any other police official much least HC Hari Ram at the police booth. Thereafter the next call was made by the accused to the complainant at about 17:42 hours and during this call the complainant informed the accused that he has reached the police booth. Another call was exchanged at about 17:44 hours as made by the complainant and it was during the continuity of this call that the complainant met the accused at the police booth. It was only after meeting the accused in person at the police booth, that the complainant ended the call which only lasted around 6 seconds. As per the Cell ID Chart of the complainant and the accused the location of their mobile phone is coming of the same place i.e. " 405872001ad32 Krishan Kumar s/o Shiv Raj Plot no. E-88, Sarai Kale Khan, New CC No. 48/2022 CBI v. Hari Ram 97/231 Delhi-13" which is in the vicinity of the police booth and which further proves that it was only the accused whom the complainant had met and not any other police official or the alleged HC Hari Ram on the day of verification. The relevant portion of the image of transcript Ex. PW10/A (colly) in this regard is reproduced hereunder:-
6.84 The CDR and the Cell ID charts, as discussed above, coupled with Ex. P-6 and Ex. PW10/C (colly) also prove that on 05.05.2022 the first call was made by the complainant to the accused at about 14:33 hours, but the said call was not answered and at about 14:46 hours, the accused called the complainant and he confirmed that he would reach the police booth at about 17:00 hours as at the time of the said call he was at his house, after performing the night duty the previous night.
Thereafter, another call was made by the accused to the complainant at about 16:35 hours which could not be connected and at about 16:38 hours, the accused again called the complainant wherein, he confirmed that he has reached at the police booth and he called the complainant there who told him that he will be there in 15-20 minutes. As per Cell ID Chart Ex.
CC No. 48/2022 CBI v. Hari Ram 98/231 PW1/H (colly) when call was made by the accused to the complainant at about 16:38 hours, the location of the mobile phone of the accused is reflected as Near Pole No. PH F38, Indraprastha Park, Near Coach Care Center, Nizamuddin, Delhi-110013 i.e. in the vicinity of the police booth. Infact it is not disputed that the accused was present at the police booth on 05.05.2022 when the complainant reached there. According to DW1 "On 05.5.2022 at around 5:00 pm, Pramod Singh Tomar came in police booth while I & others were present there. After Pramod Singh Tomar came inside the booth, he said he wants to meet Hari Ram. Accused Hari Ram at that time stood up and said that he was Hari Ram and on this, Pramod Singh Tomar shook hand with him".
6.85 It has already been discussed above that the recorded conversation in Ex. P-6, it's transcript Ex. PW10/C (colly) and CDR Ex. PW1/D & Ex. PW1/G makes it crystal clear that the complainant had met accused Hari Ram only and no other police official by the name of Hari Ram ever came there on that day during the trap proceedings. The story created by PW6 and DW1 & DW4 stands completely negated, falsified from the recorded conversation in Ex. P-6 and it's transcript Ex. PW10/C (colly). There is no such conversation as allegedly took place between Constable Hari Ram about Head Constable Hari Ram when the complainant went to the police booth on the day of trap or between the complainant and Head constable Hari Ram who allegedly came to the police booth when he was leaving the same.
CC No. 48/2022 CBI v. Hari Ram 99/231
6.86 The memory card used in the verification
proceedings, wherein the demand of bribe/undue advantage as was raised by the accused was duly recorded, is/was proved on record as Ex. P-1 and the transcript of the said recorded conversation is on record as Ex. PW10/A. The transcript was prepared in the presence of the complainant and the independent witness as stands duly proved on record through the testimony of PW10 and PW19 Insp. Devender. The said transcript and it's recording in Ex. P-1 specifically file nos. 220504_1431 to 220504_1741 coupled with the CDRs leaves no doubt that it was accused Hari Ram whom the complainant had met on 04.05.2022 and that he had raised demand of bribe/undue advantage. The relevant portion of the depositions of PW10 & PW19 regarding the preparation of transcripts on the basis of recorded conversations is reproduced hereunder:-
PW10 "We went to the cabin of DSP where the said recording of DVR was played and listened. A transcription was prepared of said DVR in my presence. The verification memo was also prepared by Inspector Mahender Singh in my presence upon which my signatures was also taken.
At this stage, witness is shown the verification memo (D-3) Ex. PW6/B. Witness identifies his signature on the same at point B on each page.
At this stage, witness is shown the voice identification cum transcription memo (D-17). Witness identifies his signature on the same at point B on each page. The voice identification cum transcription memo is now exhibited as Ex. PW10/A (colly).
The DVR and the memory card were sealed and put in an envelope, upon which my signatures were also taken." PW19 "Attention of the witness has been drawn to voice identification cum transcript memo already Ex. PW10/A (colly). After going through the same, the witness states that the investigation copy of recorded conversation marked as Q1 was played in his presence as well as in the presence of Sh.
Pramod Singh Tomar & Sh. Sumit Sheoren. After hearing the CC No. 48/2022 CBI v. Hari Ram 100/231 said conversation, Sh. Sumit Sheoren identified his voice and Sh. Pramod Singh Tomar identified his voice as well as that of the accused. Thereafter, the Hindi typed transcription of the recorded conversation was prepared and signed by complainant Sh. Pramod Singh Tomar at point A, independent witness Sh. Sumit Sheoren at point B and myself at point C on each page as the said transcription was prepared exactly in terms of the recorded conversation and matched with the same."
6.87 The transcript Ex. PW10/A (colly) in this regard is reproduced hereunder:-
CC No. 48/2022 CBI v. Hari Ram 101/231 CC No. 48/2022 CBI v. Hari Ram 102/231 CC No. 48/2022 CBI v. Hari Ram 103/231 CC No. 48/2022 CBI v. Hari Ram 104/231 CC No. 48/2022 CBI v. Hari Ram 105/231 CC No. 48/2022 CBI v. Hari Ram 106/231 CC No. 48/2022 CBI v. Hari Ram 107/231 6.88 The conversation as recorded in file no.
220504_1741 leaves absolutely no doubt that the demand of bribe/undue advantage/illegal gratification was raised by the accused. It proves that the accused was pressurizing the complainant, his staff to pay up the bribe or else he would not let the complainant carry on his business peacefully. Not only bribe in the form of money but the transcript and the recorded conversation reveals that the accused was also demanding/deriving other benefits from the complainant in the form of liquor bottles. The detailed conversation also highlights the initial adamancy of the accused in reducing the bribe amount and ultimately conceding to the repeated requests of the complainant to reduce the amount.
6.89 In fact in file nos. 220504_1726 & 220504_1741 of Ex. P-1, the conversation between the complainant and the accused started with the telephonic calls and thereafter, continued in person inside the police booth when the accused met the complainant at the gate of the police booth and thereafter both of them went inside. Same is writ large from the recording as well as the transcript, as reproduced above and the verification memo Ex. PW6/B which gets further corroboration from the CDR. The relevant portion of the same is reproduced hereunder:-
CC No. 48/2022 CBI v. Hari Ram 108/231
6.90 As stands established from the testimony of PW6,
PW10 and PW14, for the purpose of verification a new memory card/SD card make Simmtronics i.e. Ex. P-1 was arranged and after it was opened & taken out from its original packing it was inserted in a DVR Ex. P-12 to verify its blankness and thereupon the introductory voice of independent witness Sh. Sumit Sheoran was recorded in the same. The said recording is in file no. 220504_1427 of Ex. P-1. Not only the complainant/PW6 but even Sh. Sumit Sheoran/PW10 and Insp. Mahender Singh/PW14 duly proved these facts while also identifying the voice in the same as that of PW10. As already discussed above, whatever telephonic calls were exchanged between the accused and the complainant, at the time of verification of complaint Ex. PW6/A, same were duly recorded in Ex. P-1. Complainant duly identified his voice in the recordings 220504_1430 as well as in 220504_1431, 220504_1726 and 220504_1741 and also that of the accused. The fact that it was the accused only who had raised the demand stands further duly proved from the recorded conversation in Ex. P-1. When file no. 220504_1741 of Ex. P-1 was played in the court, during the testimony of PW6, he duly identified his voice and that of accused Hari Ram in the same. Specific, repeated demands and negotiation of the bribe amount stands duly established from the said recording and its transcript Ex. PW10/A (colly). The relevant portion of the testimony of PW6, PW10 and PW14 in this regard is reproduced hereunder:-
PW6 "At this stage, one yellow colour envelope bearing impression CFSL-2022/E-651, RC No. 24(A)/2022 and also exhibit Q-1 in CO 22/2022 remarked as Q1 has been produced by MHC(M). The same is opened with the permission of the court and found to contain one brown CC No. 48/2022 CBI v. Hari Ram 109/231 colour envelope in unsealed condition. The brown colour envelope is found to contain paper packing in respect of SD Card of make Simmtronics. The said paper packing contains one plastic cover further containing one SD Card. The paper packing bears impression Q1 in "CO-22/2022" and CFSL-2022/P65, Ex. "Q1 in CO-22/2022 remarked as Q1". The witness is shown the paper packing cover. The witness identifies his signature on paper packing cover at point A. The paper cover alongwith SD card kept in plastic cover is already exhibited as Ex. P-1. The witness also identifies his signature on already opened brown colour envelope at point A. The same is already exhibited as Ex. P-2.
The SD card is now inserted in the laptop brought by ASI Mukesh Kumar from Malkhana, CBI which is found to contain 05 files bearing no. 220504_1427, 220504_1430, 220504_1431, 220504_1726 and 220504_1741.
File no. 220504_1427 is played in the laptop and after hearing the file, the witness identifies the introductory voice as that of Sumit Sheoron.
File no. 220504_1430 is played in the laptop and after hearing the file, the witness states that the voice appears to be his but he is not sure.
File no. 220504_1431 is played in the laptop and after hearing the file, the witness identifies the voices as his own voice and of accused Hari Ram.
File no. 220504_1726 is played in the laptop and after hearing the file, the witness identifies the voices as his own voice and of accused Hari Ram.
File no. 220504_1741 is played in the laptop and after hearing the file, the witness identifies the voices as his own voice and of accused Hari Ram.
PW10 "...............The DVR with the blank memory card was switched on and was put in the pocket of complainant and thereafter, I and the complainant got down from the car and went towards chowki. I was asked to watch the proceedings from some distance. Thereafter, complainant met one police official out side police chowki and he took the complainant inside while I kept standing outside. After some time complainant came out of the police chowki and went towards the parked car after seeing him, I also followed him and we both sat in the car where Inspector Mahender Singh was already there. The DVR was taken out from the pocket of the complainant and it was switched off. Thereafter, we all three came back to CBI office. We went to the cabin of DSP where the said recording of DVR was played and listened. A transcription was prepared of said DVR in my presence. The verification memo was also prepared by Inspector Mahender Singh in my presence upon which my signatures was also CC No. 48/2022 CBI v. Hari Ram 110/231 taken.
At this stage, one yellow colour envelope duly sealed with the court seal is produced by MHC(M) Ct. Finny Sam with the description CFSL-2022/P-651 RC 24(A)/2022 Ex. Q-1. Same is opened with the permission of the court. It is found containing one brown colour envelope already Ex. P-2. Witness states that it bears his signature at point B. The brown envelope also found containing SD card already Ex. P-1 same is taken out from the plastic packing and is played on the official laptop of CBI.
Ex. P-1 is found containing 05 files. File no.220504_1427 dated 04.05.2022 time 2:27 p.m is played. Witness identifies the voice as his own voice, which was recorded as introductory voice to check the blankness of the SD card. File no.220504_1431 dated 04.05.2022 time 2:31 p.m is played. Witness identifies the same to be the same conversation which took place on 04.05.2022 in the CBI office between the complainant and the police personnel, whose name later on was revealed as Hari Ram before proceeding to the spot.
File no.220504_1741 dated 04.05.2022 time 5:41 p.m is played. Witness identifies the same to be the same conversation which took place on 04.05.2022 between the complainant and accused Hari Ram as the same was played in the CBI office in our presence for the preparation of transcription of said conversation."
PW14 "File namely 220504_1427 is played in the laptop and the witness identifies the voice as introductory voice of Sh. Sumit Sheron recorded by him on 04.05.2022 at CBI office.
File namely 220504_1430 is played in the laptop and the witness identifies the voice to be that of complainant Pramod Singh Tomar recorded by him on 04.05.2022 at CBI office.
File namely 220504_1431 is played in the laptop and the witness identifies the voice to be that of accused Hari Ram and complainant Pramod Singh Tomar recorded by him on 04.05.2022 at CBI office.
File namely 220504_1726 is played in the laptop and the witness identifies the voice to be that of accused Hari Ram and complainant Pramod Singh Tomar recorded by him on 04.05.2022 near the Coolie Room Sarai Kale Khan.
File namely 220504_1741 is played in the laptop and the witness identifies the voice to be that of accused Hari Ram and complainant Pramod Singh Tomar recorded by him on 04.05.2022 near the Coolie Room Sarai Kale Khan."
6.91 During his cross-examination PW6 categorically
CC No. 48/2022 CBI v. Hari Ram 111/231
denied the defence suggestion that no such calls as were recorded in Ex. P-1 were made or that no recordings were made during the verification on 04.05.2022. The relevant portion of his cross-examination in this regard is reproduced hereunder:-
"It is wrong to suggest that neither any calls were made or received by me on 04.05.2022 or that no recordings of those calls or any conversation was done in the DVR. It is wrong to suggest that any such recordings are false, fabricated or manipulated. It is wrong to suggest that no verification proceedings were conducted on 04.05.2022.
It is wrong to suggest that the recordings contained in Q-1, Q-2 & S-1 are false, fabricated and manipulated."
6.92 The defence arguments that complainant was a tutored witness as he admitted that he was shown his statement on the day of his deposition, prior to his statement being recorded have also no merits. PW6, as discussed above, had turned hostile and it appears that he stated about having been shown his statement accordingly. Even if he was shown his statement, still PW6 stated that he was not asked to make any specific statement. Furthermore a witness can always refresh his memory and there is no bar to it.
6.93 In fact PW6 categorically denied the defence's suggestion that the accused had never demanded or accepted bribe from him when he stated as " It is wrong to suggest that the accused had never demanded or accepted money from me or that he had not directed me to keep the money in the drawer." Similarly, PW10 during his cross-examination stated " The conversation in the memory card was heard by playing said memory card in the computer lying in the CBI office. I was made to also hear my own voice from said memory card on the date of verification............It is wrong to suggest that no CC No. 48/2022 CBI v. Hari Ram 112/231 recording was done on 04.05.2022 or that my introductory vice was recorded at subsequent stage by making me read a written script..............It is wrong to suggest that the recording contained in Q1, Q2, S1 and S2 are false and fabricated documents and do not contain the voices of the accused or the complainant or that the same are engineered, doctored and prepared after manipulation". No suggestion was given to PW10, during his cross-examination that the voice in Ex. P-1 is not of the accused.
6.94 Similarly, PW6 and PW17 identified the voice of accused in Ex. P-6, which was used in the trap proceedings. The relevant portion of deposition of PW6 is reproduced hereunder:-
"The paper cover alongwith SD card kept in plastic cover is already exhibited as Ex. P-6. The witness also identifies his signature on already opened brown colour envelope at point A. The same is already exhibited as Ex. P-5.
The SD card is now inserted in the laptop brought by ASI Mukesh Kumar from Malkhana, CBI which is found to contain 08 files bearing no. 220505_1040, 220505_1042, 220505_1115, 220505_1433, 220505_1446, 220505_1635, 220505_1638 and 220505_1700.
File no. 220505_1040 is played in the laptop and after hearing the file, the witness identifies the introductory voice as that of Sumit Sheoron.
File no. 220505_1042 is played in the laptop and after hearing the file, the witness states that he cannot recall or identify the said voice. It is wrong to suggest that I am deliberately not identifying the voice or that the same is of independent witness Sh. Lokesh, SSA (Engineer Department).
..........File no. 220505_1446 is played in the laptop and after hearing the file, the witness identifies the voices as his own voice and of accused Hari Ram.........
File no. 220505_1638 is played in the laptop and after hearing the file, the witness identifies the voices as his own voice and of accused Hari Ram.
File no. 220505_1700 is played in the laptop and after hearing the file, the witness identifies the voices as his own voice, of accused Hari Ram and the other civilians and police officials who were present at that time."
CC No. 48/2022 CBI v. Hari Ram 113/231
6.95 Sample voices of the accused and the complainant
were duly collected during the investigation as proved by PW17 Insp. Sandeep Kumar Tiwari and at that time to ensure the genuineness of the proceedings, blankness of the memory card Ex. P-8 & Ex. P-10, he had also recorded the introductory and concluding voice of both the independent witnesses i.e. PW10 Sh. Sumit Sheoran and PW13 Sh. Lokesh Kumar. This fact was also duly corroborated by both the independent witnesses. The relevant portion of the testimony of PW17 which is reproduced hereunder:-
"Thereafter the CBI team along with complainant, both independent witnesses and accused Hari Ram left the spot and reached the CBI office at about 07.30 pm. At the CBI office, we asked accused hari Ram whether he was willing to give his voice sample voluntarily and he agreed. Accordingly a new memory card of 16 GB Simmtroics was arranged. The original cover of the memory card was torn, the memory card was taken out and the same was put in a DVR. Its blankness was ensured in the presence of both independent witnesses in whose presence the entire proceedings were conducted. Introductory voices of both the independent witnesses was recorded in the said memory card with the help of said DVR. Thereafter accused Hari Ram's voice sample was taken and he was asked to use the same words as were used by him during the verification and trap proceedings. Thereafter concluding voice sample of both the independent witnesses was also recorded. Thereafter the said memory card was taken out of the DVR, put back in its original cover. The said cover was signed by me and both independent witnesses. The cover was marked as "S-1 in RC 24(A)/2022" and it was put in a brown colour envelope and same particulars were mentioned on the said envelope which was then sealed with the CBI brass seal. The said envelope was signed by me and both independent witnesses.
At this stage, one yellow colour envelope duly sealed with court seal is produced by MHC(M) which is already Ex. PW16/E. Same is opened with the permission of the court. It is found containing one brown colour envelope which is already Ex. P-7 and the witness identifies his signature at point C, that of Lokesh at point B, that of Sumit CC No. 48/2022 CBI v. Hari Ram 114/231 at point A and that of accused at point D. The brown envelope is also found containing SD card which is already Ex. P-8. The witness states that same bears his signature at point C, that of Lokesh at point B, that of Sumit at point A and that of accused at point D. The SD Card is taken out from the plastic packing and is played on the official laptop of CBI and is found containing 03 folders namely Capability_02, Music and Private. On opening Capability_02 and music they are found empty. On opening private folder it is found containing another folder namely Sony and after opening the same, it is found containing folder namely Rec_file. After opening folder Rec_file it is found containing two folders namely folder01 and radio01. Folder Radio01 is empty and folder01 contains 03 files.
File no. 220505_2310 dated 05.05.2022 time 11:10 pm is played. Witness identifies the voice of independent witnesses Sh. Lokesh Kumar and Sh. Sumit Sheron which was recorded as sample voice to check the blankness of the SD card.
File no. 220505_2311 dated 05.05.2022 time 11:11 pm is played. Witness identifies the voice of accused Hari Ram which was recorded as sample in his presence.
File no. 220505_2313 dated 05.05.2022 time 11:13 pm is played. Witness identifies the voice of independent witnesses Sh. Lokesh Kumar and Sh. Sumit Sheron which was recorded as their concluding voice after the sample voice of accused Hari Ram was recorded.
Thereafter a new memory card of 16 GB Simmtroics was arranged for recording the sample voice of the complainant who had volunteered to give the same. The original cover of the memory card was torn, the memory card was taken out and the same was put in a DVR. Its blankness was ensured in the presence of both independent witnesses in whose presence the entire proceedings were conducted. Introductory voices of both the independent witnesses was recorded in the said memory card with the help of said DVR. Thereafter complainant's voice sample was taken and he was asked to use the same words as were used by him during the verification and trap proceedings. Thereafter concluding voice sample of both the independent witnesses was also recorded. Thereafter the said memory card was taken out of the DVR, put back in its original cover. The said cover was signed by me and both independent witnesses. The cover was marked as "S-2 in RC 24(A)/2022" and it was put in a brown colour envelope and same particulars were mentioned on the said envelope which was then sealed with the CBI brass seal. The said envelope was signed by me and both independent witnesses. At this stage, one yellow colour envelope already Ex. PW16/F duly sealed with court seal is produced by CC No. 48/2022 CBI v. Hari Ram 115/231 MHC(M). Same is opened with the permission of the court and is found containing one brown colour envelope already Ex. P-9. Witness states that it bears his signature at point C, that of Lokesh at point B, Sumit Sheron at point A and that of complainant at point D. The brown envelope is also found containing SD card already Ex. P-10. The same bears his signature at point C, that of Lokesh at point B, Sumit Sheron at point A and that of complainant at point D. The SD Card is taken out from the original plastic packing and is played on the official laptop of CBI which is found containing 03 folders namely Capability_02, Music and Private. On opening Capability_02 and music they are found empty. On opening private folder it is found containing another folder namely Sony and after opening the same, it is found containing folder namely Rec_file. After opening folder Rec_file it is found containing two folders namely folder01 and radio01. Folder Radio01 is empty and folder01 contains 03 files.
File no. 220505_2318 dated 05.05.2022 time 11:18 pm is played. Witness identifies the voice of the other independent witnesses Sh. Lokesh Kumar and Sh. Sumit Sheron and says that their voice was recorded as introductory voice to check the blankness of the SD Card.
File no. 220505_2322 dated 05.05.2022 time 11:22 pm is played. Witness identifies the voice of the complainant Sh. Pramod Singh Tomar.
File no. 220505_2324 dated 05.05.2022 time 11:24 pm is played. Witness identifies the voice of independent witness Sh. Lokesh Kumar and Sh. Sumit Sheron as their concluding voice.
The voices in memory cards S-1 and S-2 were recorded on my instructions by SI Dharabvir in my presence."
6.96 Just like PW17, PW10 and PW13 identified the sample voice of the accused in Ex. P-8 & Ex. P-10. Just because the complainant failed to identify the sample voice of the accused is of no consequence considering the above discussion that he had deliberately made false statement to benefit the accused and also considering the other material on record including CDR, testimony of independent witnesses and the CFSL result which leaves no doubt that the voice in Ex. P-8 is of accused Hari Ram.
CC No. 48/2022 CBI v. Hari Ram 116/231
6.97 When the incriminating material i.e. the recordings
in Ex. P-1 and Ex. P-6 as well as sample voices in Ex. P-8 were put to the accused during his examination u/s 313 Cr.P.C., the accused simply stated "The alleged recording are false, fabricated, manipulated, tampered and does not contain my voice", however he failed to explain how the recordings are false, fabricated or manipulated etc. No evidence whatsoever was led by the accused to prove the alleged tampering or fabrication. A copy of the recording was provided to the accused and in case the accused wanted to prove the tampering, he could have got the recording examined through an independent expert to prove his claim. Having not done so mere bald averments of tampering, fabrication loose merits. The CDRs which have been discussed in detail above and the testimony of prosecution witnesses especially the complainant, the independent witnesses and the verification officer sufficiently proves the exchange and the recordings of these calls.
6.98 Ld. Defence Counsel tried to discredit the prosecution case based upon Ex. PW12/A when PW12 disowned the said document i.e. voice identification cum transcript memo vide which, as per the prosecution story, PW12 had identified the voice of accused Hari Ram in Ex. P-1 & Ex. P-6. Ld. Defence Counsel vehemently argued that failure on the part of PW12 to identify the voice of the accused further falsified the prosecution case that the voices in Ex. P-1 & Ex. P-6 are of the accused. As far as this argument is concerned, suffice would be to say that the testimony of PW6, PW10, PW13 & PW17 coupled with the CDR leaves absolutely no doubt that the voice in Ex. P-1 & Ex.
CC No. 48/2022 CBI v. Hari Ram 117/231 P-6 is of accused Hari Ram. These witnesses duly identified the voices of the accused in Ex. P-1 & Ex. P-6, therefore, failure on the part of PW12 to identify the voice of the accused is absolutely insignificant.
6.99 Moreover, I have absolutely no hesitation in concluding that PW12 deposed falsely as regard non- identification of voice of accused Hari Ram in Ex. P-1 & Ex. P-6 as well as qua preparation of Ex. PW12/A. Being posted at the same police station, being from the same fraternity, PW12 deposed falsely to save his colleague/the accused. I am absolutely not inclined to believe that being posted as ASI with Delhi Police, PW12 would sign Ex. PW12/A without reading the contents of the same. Moreover, it is also not palpable that ASI Rohitash/PW12 would not recognize his colleague's voice more so, when they were posted at the same police station.
6.100 It will also be worthwhile to point out that voice identification cum transcript memo Ex. PW12/A was prepared in the presence of independent witness PW15 Sh. Mukesh Kumar. PW15 proved that on being instructed by his office, he visited the CBI office on 22.7.2022 where he was introduced to ASI Rohitash Kumar and the voice recordings in Q1 & Q2 were heard by both of them where upon Ex. PW12/A was prepared. He further proved that ASI Rohitash Kumar/PW12 had heard the voice recordings in his presence and identified the voice as that of accused Hari Ram as he had worked with him. I find no reason whatsoever to disbelieve PW15 and his testimony further proves the falsity of PW12's claim and that he had deposed CC No. 48/2022 CBI v. Hari Ram 118/231 falsely at the instance of the accused. Being an independent witness, I find no reason why PW15 would depose falsely against the accused though, PW12 being a colleague of the accused, having worked with him had all the reasons to depose falsely so as to save the accused.
6.101 In addition to the testimony of PW6, PW10 and PW14 which leaves absolutely no doubt that the voices in Ex. P-1 as well as Ex. P-6 are of the complainant and the accused, the CFSL result Ex. PW16/B as proved by PW16 Sh. Arun Kumar Gupta, Senior Scientific Officer Physics CFSL, DFSS, New Delhi further proves that the voices in the said recording are indeed of the complainant and the accused. According to Ex. PW16/B, which report was given after comparison and detailed analysis of voices/recording in Ex. P-1 & Ex. P-6 with Ex. S-1 & S-2 (Ex. P-8 & Ex. P-10) i.e. sample voices of accused Hari Ram and complainant Pramod Singh Tomar, the voices in Ex. P-1 & Ex. P-6 are the probable voices of accused Hari Ram and complainant Pramod Singh Tomar.
6.102 As far as the CFSL result Ex. PW16/B is concerned, it was argued by Ld. Defence Counsel that PW16 was not qualified to act as an expert of electronic evidence as he did not possess any qualification in the field of linguistic and phonetics though his report Ex. PW16/B talks about acoustic, phonetic and linguistic examination of voices. It was argued that PW16 admittedly had no qualification in the form of any diploma or degree in the field of linguistic & phonetics and he had merely undergone training of one week in "Speaker Identification" which CC No. 48/2022 CBI v. Hari Ram 119/231 training, according to him, is not sufficient to impart qualification in the field of voice identification.
1.103 As far as these arguments are concerned, in my considered opinion though PW16 did not have any degree or diploma in the field of linguistic & phonetics, however, he did possess requisite experience and expertise to analyses the exhibits and give the report Ex. PW16/B. The experience and the expertise of PW16 is evident from the following statement made by him during his examination in chief:-
"I am D Pharma, M.Sc. (Physics), LLM, certificate course in Forensic Science, Training in Speaker Identification from FSL, Delhi. I have more than 20 years of experience in the field of forensic physics. I have assisted in more than 500 cases of speaker identification and reported more than 120- 125 cases of speaker identification. I have assisted my senior officers in scene of crimes. I have tendered evidence in various courts of law."
6.104 PW16's testimony while further establishing that the exhibits remained in sealed condition before their analysis also details the exhaustive manner in which the exhibits were examined before the report Ex. PW16/B was prepared. The relevant portion is reproduced hereunder:-
"At the time of receiving the envelopes/exhibits, the seals of the exhibits were tallied with the specimen seal and were found intact.
I started examination of the exhibits on 26.9.2022. Before examination, of the exhibits I also re-tallied the seal.
After opening the envelopes, they were found containing Q-1 in CO-22/2022, Q-2 in RC-24(A)/2022, S-1 in RC-24(A)/2022, S-2 in RC-24(A)/2022 & DVR used in RC-24(A)/2022 and the same were remarked as exhibit Q1, Q2, S1, S2 & DVR (Q3) respectively. The exhibits Q-1 contained 5 files, exhibit Q-2 contained 8 files and Ex. S-1 and Ex. S-2 contained 3 files. Ex. Q3 (DVR) did not contain any file. The screen printing of each exhibits were taken on record and kept in the office file. Subsequently, the voice of CC No. 48/2022 CBI v. Hari Ram 120/231 persons S-1 and S-2 were examined by way of auditory examination followed by spectographic examination. The S-1 contained the voice of person namely Hari Ram and S-2 contained the voice of person namely Pramod Singh Tomar. Auditory examination worksheets were made and clue words/clue sentence of both the persons were segrated from exhibit Q-1 and Q-2 as well as from their respective specimen voice. All the clue words/sentence were further subjected to spectographis analysis. Their first audible understandable words were also noted in the worksheet. In auditory examination, the voice of both the persons were similar in respect of their questioned and specimen voice. The spectrographic analysis, there are 12 clue words/sentences of person Hari Ram and 13 clue words/sentence of person Pramod Tomar were taken and spectrographer made. On careful examination of the spectrograph, the intonation pattern and formant frequency distribution and number of formants were observed. The voice of both the persons were found to be probable voice of both the persons with respect to their specimen voice. Subsequently, DVR (Q3) was also tested with respect to Q1, Q2, S1 & S2 and it was found that the files containing Q1, Q2, S1 & S2 could have been recorded through DVR (Q3) and report was prepared and subsequently put up for draft approval, after getting it's approval, it was again submitted to different expert for technical review and the same was concluded on 31.10.2022 and it was further sent to Technical Manager/Deputy Technical, CFSL for it's further approval and the same was forwarded to the concerned forwarding authority."
6.105 Hence Ex. PW16/B cannot be rejected merely because PW16 did not have any diploma or degree in the field of linguistic & phonetics, considering his vast experience and the detailed manner in which he examined the exhibits before arriving at the conclusion. Moreover, report Ex. PW16/B has only corroborative value and it duly corroborates the other material available on record as discussed above including the ocular testimony of the prosecution witnesses as well as the CDRs. It is well settled law as held by the Hon'ble Apex Court in Mahabir Prasad Verma Vs. Dr. Surinder Kaur 1982 (2) SCC 258 that the recorded conversation can be relied upon as a CC No. 48/2022 CBI v. Hari Ram 121/231 corroborative evidence and in the case at hand the recorded conversation in Ex. P-1 or for that matter in Ex. P-6 duly corroborates the other evidence on record which includes the testimony of PW6, PW10, PW13, PW14 and PW17. The acceptance/recovery of the tainted money is the most crucial piece of evidence corroborated by Ex. P-6.
6.106 Though while relying upon Ajay Gupta (supra) it was also argued that Ex. PW16/B is the probable report only and therefore it has no evidentiary value, however, I find no merits in the said arguments. Though the words used by PW16 in the report Ex. PW16/B are "Hence, the voices marked exhibits Q-1 (3) (H) to Q-1 (5) (H), Q-2 (5) (H), Q-2 (7) (H) & Q-2 (8) (H) are the probable voices of the person {Hari Ram} whose specimen voice is marked exhibit S-1 (2) (H)...........Hence, the voices marked exhibits Q-1 (2) (P) to Q-1 (5) (P), Q-2 (5) (P), Q-2 (7) (P) & Q-2 (8) (P) are the probable voice of the person {Pramod Singh Tomar} whose specimen voice is marked exhibit S-2 (2) (P)", however, the use of word probable cannot be read in isolation. PW16 before arriving at the said opinion had conducted auditory and spectrographic examination of the questioned as well as the specimen voice of the accused and after a detailed, exhaustive examination, analysis, he arrived at his conclusions. The detailed report leaves no doubt as regards the author of voices in recordings in Ex. P-1 and Ex. P-6.
6.107 It was also one of the arguments of Ld. Defence Counsel that the CFSL report Ex. PW16/B is not admissible in evidence because the CFSL was not notified u/s 79-A of the CC No. 48/2022 CBI v. Hari Ram 122/231 Information Technology Act 2000 (IT Act in short) by the Central Government to act as an expert of electronic evidence. It was argued that a bare reading of section 79-A of the IT Act and section 45A of the Indian Evidence Act 1872 reveals that such gazette notification is required for examination of electronic evidence or to act as an expert of electronic evidence. However I find no merits in his arguments. As far as Section 79-A of the IT Act is concerned, same is reproduced hereunder:-
"[79A Central Government to notify Examiner of Electronic Evidence. -The Central Government may, for the purposes of providing expert opinion on electronic form evidence before any court or other authority specify, by notification in the Official Gazette, any Department, body or agency of the Central Government or a State Government as an Examiner of Electronic Evidence. Explanation. -For the purposes of this section, "electronic form evidence" means any information of probative value that is either stored or transmitted in electronic form and includes computer evidence, digital audio, digital video, cell phones, digital fax machines.]"
6.108 The use of word 'may' reflects that it is not a mandatory provision and thus it is not necessary that every CFSL lab should be certified U/s 79-A I.T. Act.
6.109 A hyper-technical approach should not be adopted while interpreting the report of an expert unless any prejudice, on account of non observance of certain procedural, technical aspects, has been caused to the accused otherwise it will defeat the ends of justice.
6.110 It was also one of the argument of Ld. Defence Counsel that PW16 had admittedly used computers & printers for taking printout of the spectrograms which were used for spectrographic analysis, however, no certificate u/s 65B of Indian CC No. 48/2022 CBI v. Hari Ram 123/231 Evidence Act was issued in support of spectrograms which admittedly are not part of record. As regards this argument, suffice would be to say that there was no requirement of any such certificate as what PW16 proved is/was his original report Ex. PW16/B and not details of the techniques, instruments etc. used by him for arriving at his conclusion, report. Similarly, in my considered opinion no certificate was required merely because PW16 had transferred the data from the memory cards in SSL. All these were different techniques, procedure adopted by him for examining the exhibits and he was not required to give certificates for each steps he had undertaken for arriving at the conclusion, finalizing the report. As deposed by PW16 the data was transferred using write blocker to rule out any tampering, fabrication, addition etc. 6.111 As regards the fact that the exhibits were opened by PW16 on 26.09.2022 and resealed on 31.10.2022, suffice would be to say that as deposed by PW16 the exhibits remained in his safe custody, in his almirah which was accessible to him only. As already discussed above mere bald averments or surmises and conjectures in the absence of any real proof of tampering, fabrication cannot be entertained or given any weightage. If the defence wanted to prove tampering in the exhibits there were so many ways to prove the same. For similar reasoning I am not inclined to disbelieve the report merely because no hash value was obtained before and after conclusion of the examination by PW16. Nonetheless PW16 deposed that he used SSL for detecting tampering/editing/addition etc. The report, as already discussed above, is only being used as a corroborative piece of CC No. 48/2022 CBI v. Hari Ram 124/231 evidence and even if it is ignored, though I find no reason whatsoever to do so, there is sufficient material which the prosecution has been successful in bringing forth against the accused to establish his guilt. There is no reason, material before me to even remotely assume that the exhibits were tampered or fabricated at any stage. The report Ex. PW16/B specifically rules out tampering and the relevant portion reads as " Waveform, spectrographic and critical auditory examination of the audio recordings contained in exhibits 'Q-1', 'Q-2', 'S-1' & 'S-2' reveal that the audio recordings are continuous and no form of tampering detected".
6.112 The fact that names of alleged speakers of the voices in the recordings were also sent to PW16 along with the exhibits or that the forwarding memo contained the description of the contents of the exhibits is also of no consequence as the report Ex. PW16/B makes it crystal clear that it is a detailed, exhaustive report prepared after thorough examination and analysis of the exhibits. The names so sent had absolutely no bearing, impact on the independent analysis, examination conducted by PW16. Just because CFSL had the staff of CBI posted therein that by itself is no proof of the report being a concocted one. These are just flimsy arguments.
6.113 As far as the argument that the sample voices were not prepared by PW17 after making independent sentences by lifting common audible words nor unknown voices were mixed in the samples and that the identity of the accused as speakers was available with PW16 before starting the analysis is CC No. 48/2022 CBI v. Hari Ram 125/231 concerned, in my considered opinion I find no merits in the same. As discussed above in the case at hand I find absolutely no reason to assume that the exhibits, the recorded conversation contained in Ex. P-1 & Ex. P-6 were tampered with in any manner whatsoever. The exhibits were duly sealed and remained in the sealed condition till their examination as stands duly proved on record. The defence could not prove even remotely that there was any tampering, alteration, addition, deletion etc. with the exhibits i.e. Ex. P-1, Ex. P-6 or the DVR for that matter. The defence also could not even remotely prove that the DVR or the memory cards were not capable of recording the conversation. As regards the non mixing of the sample voices, the detailed discussion above, testimony of the prosecution witnesses as well as the CDR leaves no doubt that the recorded conversation did take place and it took place between the accused and the complainant in terms of the prosecution story. Recordings are not to be considered in isolation but in conjunction with the CDR and the ocular evidence of the independent witnesses, eye witnesses and the officials witnesses who had heard the conversations and seen the transactions as they unfolded. All the evidences compliment each other. There is absolutely no doubt in my mind, considering the evidence in its entirety as well as upon hearing the recorded conversation that the voices in the same belong to the accused. Furthermore while giving his report Ex. PW16/B, PW16 had in detail explained how in depth analysis/examination was done by him by selecting the common clearly audible sentences/words in the questioned recordings as well as the specimen voices in exhibits Ex. P1, Ex. P6, Ex. P-8 and Ex. P-9.
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6.114 As far as the recordings and the transcripts are
concerned, except for the bald arguments that these are false, fabricated & tampered no concrete material was brought on record, no evidence was led to prove the alleged tampering. If the defence wanted to prove that the recordings and transcripts were indeed tampered with there were various ways to prove the same. The exhibits having been seized & sealed at the spot, the seal handed over to the independent witness and the CFSL result authenticating the receipt of the articles in sealed condition, there is sufficient proof that there was no tampering or fabrication whatsoever in the recordings or the transcripts which otherwise stand duly corroborated by the CDRs and which itself is a sufficient proof of their genuineness. The calls were made and they were duly recorded in Ex. P-1 & Ex. P-6 and the transcripts Ex. PW10/A (colly) & Ex. PW10/C (colly) completely tally with the recordings. Mere suggestions, allegations in the absence of proof is nothing but a witch hunt.
6.115 Ld. Defence Counsel laid much emphasis on the following statements of PW6 & PW13 to argue that the recordings were tampered with:-
PW6 "On 05.05.2022, we reached near the spot at around 12:00 Noon. I do not remember whether any documentation was done at the CBI office before leaving for the spot. I do not know the name of the CBI official who handed over the DVR on switched on mode prior to proceeding to the police booth. Thereafter the team leader had directed all the team members as to where they had to take position and also directed the independent witnesses to accompany me to the police booth to hear and watch the transaction."
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PW13
"The DVR in switched on mode was handed over to the complainant before he went to the police booth in my presence as well as the other team members. After the DVR was handed over to the complainant in switched on mode, the complainant as well as Sh. Sumit Sheoren were instructed that Sh. Sumit Sheoren shall remain with the complainant in the police booth to hear and see what transpires."
6.116 It was argued that none of these facts are there in the recordings which itself proves that the recordings were fabricated, however, I find no merits in his submissions. No question arises of any fabrication or tampering or false implication. The effect which the time gap has on a witness, his memory is well known and so is the effect of grilling cross-
examination. After such a huge time gap and when subjected to detailed cross-examination, witness is bound to forget certain facts, timelines and also get confused. The evidence has to be seen in totality and undue weightage cannot be given to isolated statements. Again at the cost of repetition except for the bald arguments no evidence was led by the defence to prove the tampering in the recordings.
6.117 No doubt PW14 during his cross-examination stated that he had not met the accused on or before 04.05.2022, was not acquainted/conversant with his voice and could not say as to who was the person on the other side when the calls were made by the complainant at the time of verification but the fact that voice in Ex. P-1 is of the accused stands duly proved from the categoric deposition of PW6 in addition to CFSL result which has been discussed in the later part of this judgment. Also the CDR establishes that the voice is of the accused only as it was CC No. 48/2022 CBI v. Hari Ram 128/231 him only the complainant had called on the day and time of verification. For similar reasoning, the fact that PW17 was not conversant with the voice of the accused will not make any difference. The CDRs on record establish that the calls were made to the accused only by the complainant on the day of the verification as well as the trap and it is not the accused's stand that phone number 9999028935 did not belong to him or that some other person was also using his mobile phone. It has also been discussed above that the Cell ID chart establishes the location of the accused at the spots in terms of the prosecutions case.
6.118 Merely because PW13 failed to identify the voice of the accused in file no. 220505_1700 or that he stated that he had heard the voices in Ex. P-6 for the first time in the court, as was pointed by Ld. Defence Counsel, does not impact the prosecution story as not only PW13 had identified the voice of the complainant in the said file but the fact the other voice in the said file is/was of the accused was duly proved by PW6. The fact that PW6 failed to identify the introductory voice of PW13 in file no. 220505_1042 also makes no difference as PW13's voice was duly identified by PW10 when the recording was played. PW13 also identified his voice in the said recording/file.
6.119 Though the complainant failed to identify the voice of independent witness PW13 in Ex. P-6 but he did identify the introductory voice of Sh. Sumit Sheron i.e. the other independent witness in file no. 220505_1040. Similarly, though he failed to identify the sample voice of the accused in Ex. P-8, however, as CC No. 48/2022 CBI v. Hari Ram 129/231 accused's sample voice was duly recorded in the presence of the independent witnesses i.e. PW10 & PW13, both of them did recognize the sample voice of accused Hari Ram in the said file apart from recognizing each others voice.
6.120 As far as failure on the part of PW6 to identify the introductory and concluding voice of PW13 in Ex. S-1 is concerned, that was for the reason that he had been won over by the accused. PW13's statement that he cannot confirm whether the specimen voice in file no. 220505_2311 is of accused Hari Ram or not, has no negative bearing on the prosecution case as the CFSL result leaves no doubt that the voice is of accused Hari Ram. Same stands duly proved from the testimony of PW10 who also identified the voice of PW13 in Ex. S-2. Furthermore, as discussed above, the complainant had duly identified the voice of accused in the recordings in Ex. P-1 & Ex. P-6. The fact that the samples voices were recorded in Ex. S-1 and for that matter S-2 were duly proved by PW10 and PW13 apart from other prosecution witnesses including the TLO.
6.121 As far as reliance upon Nilesh Dinkar Paradkar (supra) is concerned, it stands duly established on record that the case property including the recorded conversations in Ex. P-1 & Ex. P-6 remained in safe custody and there was no tampering with the same. There is no doubt whatsoever that the conversation as recorded in Ex. P-1 & Ex. P-6 did take place between the complainant and the accused and there is more that ample evidence to prove the same which has been discussed above in detail. Most importantly, it was nowhere pleaded by the CC No. 48/2022 CBI v. Hari Ram 130/231 accused that at the time, date and place when the conversation s were recorded, as is the prosecution case, he was not present at the police booth or that he was present somewhere else. The CDR and the Cell ID chart as discussed above clinches the issue.
6.122 It is well settled law that voice identification evidence is not a substantive evidence and such evidence could at best be used as corroboration of other independent evidence. Further the courts have to be extremely cautious in basing a conviction purely on the evidence of voice identification. However, in the case at hand the voice identification evidence is not the only evidence but one of the evidence against the accused. There is sufficient proof of demand & acceptance in the form of oral testimony of the complainant, independent witnesses and the CBI officials which has been discussed above in detail. Additionally, there are CDRs on record which clinches the issue in this regard. The expert reports only corroborated the testimony of the prosecution witnesses. Moreover, as discussed above, no material whatsoever has been brought on record by the defence which could even remotely prove any tampering in the recordings.
6.123 At this stage, it will be worthwhile to highlight the observations made in Ram Singh Vs. Col. Ram Singh 1985 Supp SCC 611 wherein it was as under:-
"34. In Ram Singh's case (supra), this Court also notices with approval the observations made by the Court of 5 1985 (Supp) SCC 611 Appeal in England in the case of R. Vs. Maqsud Ali . In the aforesaid case, Marshall, J. observed thus:-
"We can see no difference in principle between a tape- recording and a photograph. In saying this we must not be CC No. 48/2022 CBI v. Hari Ram 131/231 taken as saying that such recordings are admissible whatever the circumstances, but it does appear to this Court wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved and the voices recorded properly identified; provided also that the evidence is relevant and otherwise admissible, we are satisfied that a tape- recording is admissible in evidence. Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case. There can be no question of laying down any exhaustive set of rules by which the admissibility of such evidence should be judged."
6.124 Reliance upon Daulat Ram (supra) is of no help as it stands duly established on record that the samples, exhibits were duly secured and there is nothing on record whatsoever to prove or suggest that they were tampered with. Safe custody of the samples/exhibits uptil their examination by the experts stands duly proved on record.
6.125 What is/was required is to ensure safe custody of the case property and same stands duly proved on record in the present case. No doubt Ex. P-1 and the DVR should not have been retained by the Verification Officer and should have been immediately deposited in the malkhana after the verification proceedings but they continued to remain with the Verification Officer and then with the TLO till after the trap proceedings, however, the said lapse cannot be made the basis for rejecting the prosecution case. As discussed above, what is required is safe custody and to rule out any tampering in the case property. In the case at hand I find no tampering or fabrication with the case property. The moment the seal used in seizure of the case property was handed over to the independent witness and the CC No. 48/2022 CBI v. Hari Ram 132/231 CFSL result ruled out tampering or fabrication with the seal and the case property, I find no reasons to doubt the authenticity of Ex. P-1 or for that matter the DVR and Ex. P-6. It is also to be seen that after the trap proceedings, all the exhibits were duly deposited with the malkhana and they were produced during the trial by the Malkhana Incharge/Mohrar. Just because prosecution could not prove the relevant entries regarding issuance or deposit of the case property from the malkhana nor any GD entry register was proved is of no consequence as the use of the memory card, DVR etc. in the proceedings stands duly proved on record and so does their seizure and sealing. Once their safe custody stands proved and the tampering is completely ruled out, absence of malkhana or GD entry register makes no difference.
6.126 No doubt the DVR was not sealed nor handed over to the independent witness after verification, however, in my considered opinion there was no requirement of sealing the DVR after the verification proceedings. The use of the DVR was only for recording the conversation. The conversation was to be recorded in the memory cards. The DVR merely being a via media for recording a conversation and the fact that the memory cards in which the conversation was recorded were duly sealed and the seal was handed over to the independent witness was sufficient enough to safeguard and ensure the authenticity of the recorded conversation/ memory cards. Once the memory cards were duly sealed no question arises of any tampering in the same merely because the DVR remained in unsealed condition after verification proceedings. Nonetheless the DVR was duly sealed after the trap proceedings and it was sent to CFSL who opined CC No. 48/2022 CBI v. Hari Ram 133/231 that the said DVR could have been used for recording of Ex. Q-1, Q-2, S-1 and S-2. Further as per CFSL result Ex. PW16/B, the DVR did not contain any audio recording. The record also establishes that only one DVR was used and not two DVRs.
6.127 It makes no difference that PW13 stated that "No seal was shown to me or produced before me by anybody at the CBI office before leaving for the spot. I do not remember today whether any seal was handed over to anybody in my presence after we reached back at the CBI office from the police booth" as the factum of handing over the seal to PW10 after the verification, to the TLO at the time of trap and back to PW10 after the trap proceedings, stands duly established through the testimony of PW10, PW14 and PW17 apart from Ex. PW6/B, Ex. PW6/C and Ex. PW10/B. Though it was argued by Ld. Defence Counsel that the seal being a case property should not be handed over to PW10, however, in my considered opinion the handing over of the seal was done to rule out any tampering with the case property i.e. Ex. P-1 and Ex. P-6. Once the seal was handed over to PW10 it ensured that no tampering or fabrication in the said exhibits could be done and it stands proved on record that these material piece of evidence remained pure, untampered with till the time of their analysis by the CFSL. PW17 categorically stated about the handing over of the seal by PW10 to him when he deposed "CBI brass sealed used for sealing the said memory card was also obtained from witness Sumit Sheoran"'.
6.128 During the course of arguments, Ld. Defence
CC No. 48/2022 CBI v. Hari Ram 134/231
Counsel vehemently argued that the prosecution witnesses contradicted each other as regards the custody of the memory card Ex. P-1 which was used during the verification proceedings and which contrary statements, inconsistencies, according to him, itself proves that the entire prosecution case is false and fabricated one. To buttress his arguments, Ld. Defence Counsel pointed out the following statements made by PW6, PW10, & PW14 during their examination in chief, cross-examination:-
PW6 Examination-In-chief "I do not remember in whose possession the memory card remained but it was with CBI and was not handed over to independent witness Sumit. A verification memo dated 04.05.2022 was also prepared in respect of verification proceedings, which was signed by me, Inspector Mahender Singh and independent witness Sumit."
PW10 Cross-examination "The memory card Q1 (Infact should be Ex. P-1) was deposited in the Malkhana by Inspector Mahender Singh".
PW14 Cross-examination "I had not deposited the recording Q1 with Malkhana on 04.5.2022 or thereafter. (Vol. I had kept the same with me after sealing the same). I had not made any entry in the GD Entry Register in respect of retaining of the recording Q-1 with me."
6.129 However, I find no merits in the arguments of Ld. Defence Counsel. The inconsistency, as pointed out, is too trivial in nature and does not create doubt upon the prosecution case. Minor inconsistencies are bound to occur with passage of time. Human memories are apt to blur with such huge passage of time. A person cannot be expected to give a parrot like version or CC No. 48/2022 CBI v. Hari Ram 135/231 depose with mathematical precision. Only a tutored witness can depose so. Error due to lapse of time/lapse of memory have to be given due weight-age/ due allowance. By and large a witness cannot be expected to possess a photographic memory and to recall the minute details of an incident. It is not as if a video tape is replayed on the mental screen. As the mental abilities of a human being cannot be expected to be attuned to absorb all the details of the incident, minor discrepancies are bound to occur in the statements of witnesses. Unless the defence is able to establish that the discrepancies or short coming or for that matter lacunas in the prosecution case have prejudiced the accused or rendered the prosecution case unreliable or untrustworthy, the same cannot be formed the basis of acquitting the accused.
6.130 It is settled proposition of law that even if there are some omissions, contradictions and discrepancies, the entire evidence cannot be disregarded. It is the duty of the court to sift through the evidence and ascertain as to whether the evidence minus the contradictions, improvements, embellishments inspire confidence and is sufficient to convict the accused. Undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution case.
6.131 It has been held in Zamir Ahmed Vs. The State 1996 Cri.L.J. 2354 as under:-
"It would be a hard nut to crack to find out a case which is bereft of embellishment, exaggeration, contradictions and inconsistencies. The said things are natural. Such contradictions and inconsistencies are bound to creep in with the passage of time. If the witnesses are not tutored they would come out with CC No. 48/2022 CBI v. Hari Ram 136/231 a natural and spontaneous version on their own. The two persons on being asked to reproduce a particular incident which they have witnesses with their own eyes would be unable to do so in like manner. Each one of them will narrate the same in his own words according to his own perception and in proportion to his intelligence power of observation."
6.132 What was required is the safe custody of the memory card/ Ex. P-1 and it is immaterial whether it remained with PW14 or it was deposited in the Malkhana so long as the same remained sealed/secured and was not tampered with. It stands duly established on record that the memory card Ex. P-1 remained in the custody of PW14 in sealed condition and it remained in such a condition till it was handed over to PW17 Inspector Sandeep Kumar Tiwari who deposed in this regard as "One DVR and one sealed envelope containing memory card was taken over by me from Inspector Mahender Singh who had conducted verification of the complaint". Moreover, it remained in sealed condition till the time it was sent to CFSL which fact stands confirmed from the following statement made by PW16 Sh. Arun Kumar Gupta:-
PW16 Examination-in-chief "In the present case, my office had received letter no. RC- DAI-2022-A-0024/DLI/5377 dated 28.6.2022 alongwith five sealed exhibits/envelopes which were duly forwarded by SP, CBI, ACB New Delhi........At the time of receiving the envelopes/exhibits, the seals of the exhibits were tallied with the specimen seal and were found intact".
6.133 The said fact is also duly established from CFSL report Ex. PW16/B and the relevant image of the report is reproduced hereunder:-
CC No. 48/2022 CBI v. Hari Ram 137/231
6.134 The seal which was used for sealing memory card
Ex. P-1 was handed over to independent witness/PW10 and this ensured that there was no tampering with the said memory card, recording therein. The said fact is duly recorded in the verification memo Ex. PW6/B. The relevant portion of the testimony of PW6, PW10 & PW14 in this regard is reproduced hereunder:-
PW6 "After reaching CBI office, Inspector Mahender Singh took out the memory card from the DVR and sealed the memory card and got the same signed from me as well as independent witness Sumit. The said seal and memory card were handed over to independent witness Sumit. Again said only said seal was given to independent witness in an envelope."
PW10 "The memory card Q1 (Infact should be Ex. P-1) was deposited in the Malkhana by Inspector Mahinder Singh. It is wrong to suggest that no seizure or sealing of any article was done on 04.5.2022 or that no seal was handed over to me after verification. Except mentioning about the receipt in the verification memo no separate receiving was taken by CBI at the time of handing over the seal to me".
PW14 "I removed the memory card from the DVR and prepared a copy of the same with the help of Write blocker in the presence of the complainant and independent witness. The memory card was kept in its cover and marked as Q1 in CO CC No. 48/2022 CBI v. Hari Ram 138/231 no. 22/2022. I, complainant and independent witness affixed our signatures on the cover. Thereafter it was put in another envelope. Again three of us signed on the said envelope. On the said envelope the particulars Q1 in CO no. 22/2022 was mentioned. The said number was of the complaint. Thereafter the verification proceedings were drawn on the said day in the form of verification memo and recommended registration of FIR against accused Hari Ram. The verification memo was signed by the independent witness, complainant and myself.
At this stage, attention of the witness is drawn to verification memo dated 04.05.2022 already Ex. PW6/B running into 5 pages. After seeing the same witness identified the verification memo as well as also identified his signatures at point C and that of complainant and independent witness A and B respectively on all the pages. On the verification memo the impression of the CBI seal was also taken at point D on all pages and the seal was handed over to the independent witness with directions to produce the seal as and when required."
6.135 It was not even once suggested to PW6 that the memory card was not sealed as such or that no such seal was ever handed over to PW10/Sh. Sumit Sheoran. PW10 categorically denied the defence's suggestion that the seal was not handed over to him. There was no requirement of any separate memo/document/receipt to be prepared regarding handing over of the seal once this fact was duly mentioned in the verification memo.
6.136 The CFSL results which are on record as Ex.
PW16/B and Ex. PW3/A sufficiently proves that till the time of examination of the case property/exhibits the same were not tampered with. Things would have been entirely different had PW16 and PW3 deposed that when the samples were received for examination the seals were already broken or the envelope/package containing them torn or damaged. Same is the situation qua the remaining case property/exhibits. T he defence CC No. 48/2022 CBI v. Hari Ram 139/231 has not been able to prove that there was indeed any tampering, fabrication with the case property/exhibits. Without even remotely establishing that there was indeed any tampering, fabrication with the case property/exhibits, the defence cannot expect the court to assume that merely because they were not deposited with the malkhana or that there are certain discrepancies between the statement of the prosecution witnesses as regards the handing over of the case property that there was indeed some tampering, fabrication. These are merely assumptive and hollow arguments without any basis whatsoever.
6.137 For the same reasoning, failure on the part of PW19 to bring on record any acknowledgment/receipt as regards the procurement of DVR/memory cards/ SD cards, phenolphthalein powder, brass seal etc. which were used in the verification & trap proceedings, from the Caretaker of ACB Delhi cannot be made a ground to render the prosecution case unreliable or untrustworthy. These are minor lacunas in the prosecution case which do not affect the merits of the case. These shortcomings, loopholes have not dented or created doubt upon the substantive evidence. Absence of these details/particulars does not even remotely discredit the prosecution case as these are ancillary details extremely distantly connected with the substantive offence/investigation. Prosecution was duty bound to prove the demand and acceptance and the same stands duly proved on record.
6.138 Though while relying upon Sudesh Kaushik (supra) Ld. Defence Counsel argued against the admissibility of the CDR CC No. 48/2022 CBI v. Hari Ram 140/231 and the transcripts/recordings, however, the facts of the said case are/were entirely different. In the said case the DVR was never produced whereas in the case at hand the DVR which was used in the verification and the trap proceedings was duly proved and is on record as Ex. P-12. As far as CDRs are concerned, they are duly certified/authenticated and accompanied with certificate u/s 65B of the Indian Evidence Act. As against the said case all the original devices including DVR and memory cards were duly produced before the court and the prosecution witnesses duly explained how the copy of recordings was made with the help of write blocker. Therefore reliance upon Sudesh Kaushik (supra) is of no use to the defence.
6.139 Ineffective and indifferent investigation as a result of acts of omission or commission, deliberate or otherwise, by the Investigating Officers is absolutely unacceptable. However, the question to be considered is whether the lapses in the investigation are mere irregularity or an illegality which would adversely affect the case of the prosecution. What is to be considered is whether such default and/or acts of omission and commission have adversely affected the case of the prosecution and whether such default and acts were deliberate, unintentional or resulted from unavoidable circumstances of a given case. (Dayal Singh vs. State of Uttranchal (2012) 8 SCC 263).
6.140 What the court is required to see is the prosecution evidence in its entirety and weigh whether defective or irresponsible investigation has rendered the said evidence shaky or unreliable. When the investigation is perfunctory it becomes CC No. 48/2022 CBI v. Hari Ram 141/231 the duty of the court to see if the evidence on record minus the lapses is sufficient to establish the guilt of the accused. Noticing the possibility of investigation being designedly defective it was held in Dhanaj Singh v. State of Punjab (2004) 3 SCC 654 as under:-
"5. In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective."
6.141 Dealing with the cases of omission and commission it was held in Paras Yadav v. State of Bihar (1999) 2 SCC 126 as under:-
"...........that if the lapse or omission is committed by the investigating agency, negligently or otherwise, the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand in the way of evaluating the evidence by the courts, otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party."
6.142 Reliance in this regard may also be placed on the law lay laid in Zahira Habibullah Sheikh (5) v. State of Gujarat (2006) 3 SCC 374, Gajoo v. State of Uttarakhand (2012) 9 SCC 532, Zindar Ali SK vs State of West Bangal Ors.
MANU/SC/0141/2009 & Girwar Singh & Ors. Vs CBI MANU/DE/4551/2015. In every case of defective investigation, an accused cannot be acquitted, if the reliable evidence produced, dehors the defective investigation, is sufficient to bring home the guilt of the accused beyond all reasonable doubts. In such matters, the accused cannot take advantage of defective CC No. 48/2022 CBI v. Hari Ram 142/231 investigation unless the defective investigation causes reasonable doubt about the prosecution case. The law is well settled that an accused should not be allowed to go scott free or the prosecution be disbelieved for defective investigation (Balwant Singh v. State of Haryana, (SC) 1995 A.I.R. (SC) 84 and Amar Singh Vs. Balwinder Singh 2003 AIR SCW 717). Every faulty investigation or padding in evidence cannot by itself lead to total demolition of prosecution case if it can otherwise stand ignoring these fallacies. (Lakshmi v. State of UP (SC) 2002 (4) R.C.R. (Criminal) 82). Mere faulty investigation cannot be made basis of acquitting the accused when sufficient evidence is available to nail him (Ram Parshad v. State of Haryana, (P & H) (DB) 1992(3) R.C.R (Criminal) 231). In Zahira Habibulla H. Sheikh v. State of Gujrat (SC), 2004 (4) S.C.C 158 and State of UP v. Jagdeo (SC) 2003 A.I.R. (SC) 660.
6.143 Hence, memory card Ex. P-1 and for that matter Ex. P-6 till the time of it's/their analysis remained in duly sealed condition and nothing has emerged on record, the defence could not prove anything which could even remotely suggest any tampering or fabrication or manipulation with the said memory card or the recording therein.
6.144 Thus, there is more than ample proof of demand of bribe/undue advantage by the accused in the form of ocular, documentary and technical as well as scientific evidence. Infact, in addition to the demand as raised on the day of verification, the demand was also raised on the day of trap, at the time of acceptance of the bribe amount/undue advantage as has been CC No. 48/2022 CBI v. Hari Ram 143/231 discussed in detail herein below in the later part of this judgment.
Acceptance of undue advantage/bribe amount during trap proceedings and its recovery
7. Once the verification proceedings confirmed the demand of undue advantage/bribe by accused Constable Hari Ram, FIR bearing no. RC 003 2022A 0024 i.e. Ex. PW14/A was registered and it was entrusted to PW17 Inspector Sandeep Kumar Tiwari for laying trap on the accused, which trap was laid on 05.05.2022. Though it was also one of the argument of Ld. Defence Counsel that the FIR could not be proved for want of certificate u/s 65B of Indian Evidence Act, however, the law is well settled that the FIR is not a substantive piece of evidence and it can be used only to contradict the maker thereof or for corroborating his evidence. In the case at hand the FIR was registered pursuant to verification as stands duly proved on record and the FIR merely incorporates those facts.
7.1 A trap team was constituted comprising of the complainant/PW6, independent witnesses Sh. Sumit Sheoran/PW10 & Sh. Lokesh Kumar/PW13, Inspector Mahender Singh/PW14, Trap Laying Officer (TLO) Inspector Sandeep Kumar Tiwari/PW17, apart from other CBI officials.
7.2 PW17 during his deposition narrated in detail about the pre-trap and the post-trap proceedings. He deposed that on 05.05.2022 the purpose of assembly was made known to the CC No. 48/2022 CBI v. Hari Ram 144/231 CBI/trap team, the demanded bribe of Rs. 16,000/- @ Rs. 4,000/- per month for 4 months was brought by the complainant which was in the denomination of Rs. 500/- i.e. 32 currency notes and the details of these currency notes were noted down in the pre- trap memorandum Ex. PW6/C. These currency notes were treated with phenolphthalein powder and a demonstration of the use of phenolphthalein powder was given to the trap team by Inspector C.M.S. Negi. Personal search of the complainant was conducted by Sh. Lokesh Kumar/PW13 so as to ensure that he did not carry any other article except for the mobile phone and thereafter, the currency notes/bribe amount so treated with phenolphthalein powder were kept in the jeans/trouser worn by the complainant by PW10/Sh. Sumit Sheoran and he was instructed to not to touch the currency notes unless demanded by accused Hari Ram. Furthermore, the complainant was also instructed to give signal to the CBI team, by giving a missed call or by raising both his hands above his head, once the transaction was completed. A new duly sealed memory card i.e Ex. P-6 was arranged and it's blankness was ensured by recording the introductory voice of PW10 & PW13 with the help of the DVR. All these proceedings were duly recorded in the pre-trap memorandum Ex. PW6/C which was signed by the members of the trap team. The CBI team carried the trap kit consisting of fresh glass tumbler, new fresh glass bottle, FIR, sodium carbonate etc. with them and reached the spot i.e. near Sarai Kale Khan Police Booth.
7.3 PW17 further deposed that the CBI team reached IP Park near police booth Sarai Kale Khan at about 12:05 hours and waited for the call of accused Hari Ram. At about 14:07 hours a CC No. 48/2022 CBI v. Hari Ram 145/231 missed call was received on the complainant's mobile phone and at about 14:33 hours, complainant called the accused, however, he did not answer the call. At about 14:46 hours, complainant received another call from the accused who informed him that he had been on night duty, last night and that he would meet him at police booth at about 17:00 hours. This call was recorded in the memory card Ex. P-6 as the mobile phone of the complainant was on speaker mode.
7.4 Further according to PW17, at about 16:25 hours, complainant received a missed call on his mobile from accused Hari Ram and at about 16.35 hours, he called accused Hari Ram on his mobile phone which call was not answered by the accused and at about 16:38 hours, complainant received another call from the accused who informed him that he had reached the police booth Sarai Kale Khan and asked him to come there. All these calls, conversation which took place between them were duly recorded in the memory card Ex. P-6 through DVR Ex. P-12 as the mobile phone of the complainant was on speaker mode. The fact that these calls were exchanged between the complainant and the accused stands duly proved on record vide their CDRs i.e. Ex. PW1/D & Ex. PW1/F, as has been discussed at length above.
7.5 In terms of the telephonic call, accused's instructions to the complainant, the CBI team moved towards the police booth Sarai Kale Khan and the complainant was again instructed that the amount was to be paid to the accused only on his specific demand and also to give signal after the transaction. PW10 was also asked to witness the transaction as far as possible and give CC No. 48/2022 CBI v. Hari Ram 146/231 the signal accordingly. The DVR was kept in switch on mode by SI Devender Gautam in the left side pocket of the jacket worn by the complainant and at about 17:00 hours the complainant went inside the police booth Sarai Kale Khan and came out at about 17.05 hours. He did not give any signal at that time, moved towards Nizamuddin Railway Station and was followed by SI Devender Gautam who reached him, took the DVR from him and switched off the same. Upon being asked by SI Devender Gautam, complainant told him that instead of Rs. 16,000/-, the accused demanded Rs. 8000/- which was kept by him in the drawer of a table inside the police booth, as instructed by him/ Hari Ram. SI Devender Gautam alerted the CBI team and PW17 along with Insp. Umesh, both independent witnesses, SI Devender & the complainant alongwith other team members entered the police booth Sarai Kale Khan. The accused was confronted for demanding & accepting bribe and PW17 caught hold of his left hand wrist while Insp. Umesh caught hold of his right hand wrist. The accused accepted having accepted money/bribe from the complainant and told them that he had instructed the complainant to put the money/bribe in the table's drawer. He further told them that immediately after the complainant left the police booth he took the money and kept the same in the left side rear pocket of a pant which was hanging on the wall inside the rest room of the police booth. The bribe amount was recovered from the left side rear pocket of the said pant as pointed by the accused from the said room which was counted by independent witness Sh. Lokesh/PW13 and found tallying with the currency denomination, note numbers as noted on the pre trap memorandum Ex. PW6/C. After tallying with the CC No. 48/2022 CBI v. Hari Ram 147/231 pre trap memo, they were ticked on the same and signed/initialed by both the independent witnesses. The said amount was seized vide Ex. PW13/B and the remaining amount of Rs. 8,000/- was also seized vide Ex. PW13/A. 7.6 PW17 further deposed that thereafter he inquired from the complainant as to what had transpired in the police booth and he told him that when he entered the police booth accused Hari Ram was already there who told him that he had to pay him Rs. 8000/- for two months, upon which complainant told the accused that he had brought the entire amount of Rs. 16,000/- i.e. @ Rs. 4000/- for 4 months but the accused told him to pay Rs. 8000/- only. The complainant further told PW17 and the CBI team that the accused asked him to put the money in the table's drawer and thereafter they came to the gate of the police booth, the accused asked him to not to worry anymore and the complainant left the police booth. According to PW17, the complainant was asked as to why he did not give signal after the bribe amount was handed over to the accused on which the complainant told him that he had got nervous at that time.
7.7 On exactly similar lines, is the deposition of both the independent witnesses PW10 & PW13 apart from PW14/Inspector Mahender Singh and their consistent testimony proves the meeting between the accused & the complainant on 05.05.2022, exchange of calls between them, recording of these calls/conversations in memory card Ex. P-6 and most importantly, recovery of tainted money/bribe amount from the accused, at his instance. The fact that the amount was accepted CC No. 48/2022 CBI v. Hari Ram 148/231 by the accused who asked the complainant to put the bribe amount in the table's drawer and thereafter, kept the same in his trouser's pocket in the rest room of the police booth, after the complainant left the police booth stands duly proved from the wash proceedings which were conducted in the presence of the complainant and independent witnesses apart from the other CBI team members. After the recovery of the bribe money, at the accused's instance, washes of both his hands were taken in a fresh solution of sodium carbonate with water in separate clean glass tumblers and the solution turned pink. Similarly, the washes of the table drawer and the pant wash of the accused were also taken in separate fresh glass bottles and the solution turned pink thereby giving positive result for presence of phenolphthalein powder. The solutions so turned pink as the money was kept in the drawer and thereafter removed by the accused & kept in his trouser. Having handled the money/bribe amount which was treated with phenolphthalein powder, the accused's hand washes as well as the wash of the table drawer & the trouser in which he kept the money and from where it was recovered at his instance, gave positive result for presence of phenolphthalein powder.
7.8 The washes taken in separate glass bottles were sealed at the spot, appropriately marked and sent to CFSL for analysis which gave a positive report i.e. Ex. PW3/A for the presence of phenolphthalein as proved by PW3 Sh. V.B. Ramteke, Principal Scientific Officer, CFSL. These glass bottles were duly proved as Ex. PW3/P-1 to Ex. PW3/P-4 during the trial and so was the pant of the accused as Ex. PW13/C which was also seized at the time of trap proceedings. The report makes CC No. 48/2022 CBI v. Hari Ram 149/231 it amply clear that the bottles Ex. PW3/P1 to Ex. PW3/P4 remained in sealed condition till their analysis and gave positive result for the presence of phenolphthalein, which of course was on account of the fact that the accused had accepted and dealt with the bribe amount which was treated with phenolphthalein powder. During the cross-examination of PW3, the defence could not bring anything on record to contradict his report, analysis. It makes no difference that the TLC plates were not preserved nor any photographs were taken. Defence could not explain why PW3 would prepare a false report. He had no motive, grudge or ill-will against the accused nor any favour to seek from the CBI/prosecution. Infact, when the bottles were produced in the court, it was observed that the bottles contained light pink colour solution. The solution was pink/turned pink as post the trap, the washes gave positive result for presence of phenolphthalein as was also proved by the prosecution witnesses.
7.9 The relevant portion of the testimony of PW10 & PW13 in this regard is reproduced hereunder:-
PW10 "On 05.05.2022, when I visited CBI office, I found one more independent witness Lokesh Kumar present there and he also joined to witness the trap proceedings. The trap team was constituted with the independent witnesses, complainant, and some CBI official including Inspector Mahender Singh. The complainant also came there with the bribe amount in the denomination of Rs. 500/-. The details of currency notes of the bribe amount was noted down in my presence by the CBI official on some paper/memo upon which my signature were also taken.
At this stage, witness is shown pre trap memo (D-4) already Ex. PW6/C. Witness identifies his signature at point B on the same on each page.
The demonstration of phenolphthalein powder with some solution was shown to the trap team. Thereafter, the currency notes were treated with the phenolphthalein CC No. 48/2022 CBI v. Hari Ram 150/231 powder and I was asked to touch the tainted currency notes and to put my finger in the solution in a glass, on doing so the said solution turned pink. The said solution was thereafter thrown away. Thereafter, we all washed our hands. The personal search of all the trap team members was conducted to ensure that they do not carry any incriminatory material except the mobile phone. Thereafter, independent witness Lokesh Kumar was asked to put the tainted bribe amount in the right pant pocket of wearing pant of the complainant and complainant was asked not to touch the amount and to handover the same to the accused only on the asking/demand of the accused or to any specific person as directed by the accused. A trap kit was arranged by the TLO, which was containing empty glass bottle, glass, one leather bag, sodium carbonate powder etc. I was asked to remain present with the complainant to see the proceedings. The complainant was directed to give the pre decided signal after the transaction of bribe by rubbing his head by both hands. The complainant as well as me, were also given the phone number of TLO to make a call, if needed after the transaction.
Thereafter, the trap team proceeded to the spot in four vehicles. I alongwith the complainant and the other independent witness Lokesh Kumar and some CBI officials were in the complainant Honda civic car whereas, the other CBI official were in official CBI vehicle. We left the CBI at about 12 p.m and reach near the spot about 12:30 p.m. we stopped at Inderprastha Park where we all waited for the call from the accused Hari Ram as he was to tell the complainant the time to meet him. After some time, complainant received a missed call from the accused. Thereafter, DVR was switched on and the complainant was asked to make a all to the accused by putting his mobile on speaker mode, however, said call was not received by the accused. After 10 mins, complainant received a call from accused, which was picked up by the complainant and he was informed that accused would come to chowki at 5 p.m. The said call of accused was received by complainant around 4 p.m. Around 4 :30 p.m, complainant received another call from accused, who was asked to come to police chowki Sarai Kale Khan. Thereafter with the entire CBI team including the complainant and other independent witness proceeded towards police chowki, which was at walking distance at about ½ kilometer away from the park where we were waiting. All the CBI team members took position in discreet manner outside the police chowki. The complainant alone entered into the police chowki. After 10 min complainant came back but he did not give any pre decided signal to the trap team. One of the CBI official went towards the complainant, who was looking nervous CC No. 48/2022 CBI v. Hari Ram 151/231 and after a while the CBI official switched off the DVR after taking the same from the complainant. Thereafter, said CBI official gave a signal to other team members to come towards police chowki. The CBI official in the other independent witness and the complainant went inside the police chowki, I also followed the CBI team and I saw that two CBI officials were holding the hands of accused Hari Ram. I can identify accused Hari Ram, if shown to me. Witness is asked to look at the persons sitting in the court and to identify if the accused is present in the court or not. The witness correctly identified the accused Hari Ram in the court.
The complainant was asked if he had handed over the money to said accused and he said that the money was given to accused Hari Ram. The accused was asked about the money but he refused to have accepted any money from the complainant. However, the complainant informed that he had kept the money in the drawer of wooden table, which was lying in the police chowki on the asking of the accused. Thereafter, the drawer of said table was opened but no money was found inside said drawer. Accused was again asked about the bribe money but he repeated denied to have accepted any money. On the continuous asking by CBI official, accused told that he had kept the bribe money in the adjoining room at the back side. On his pointing out the CBI official went to that room and pointed towards one pant, which was hanging on a wall. The said pant was taken from there and on the checking of the pocket of said pant the bribe money i.e. GC notes of Rs. 8000/- in the denomination of Rs. 500/- each were found lying inside in one of the pocket of said pant. I do not remember, who had checked the pant and took out said money from the pocket. The water was taken in a empty glass and was mixed with the powder, which the trap team brought in the trap kit. Accused was asked to dip his hands in said solution in the glass and upon doing so, said solution turned pink and the same was transferred to clean empty glass bottle. The said bottle was capped and sealed with the seal (used at the time of verification), which I had brought on the date of trap, as per the instructions of the TLO. The CBI team conducted the post trap proceedings in the police chowki and we kept waiting outside said room from where the bribe amount was recovered because said room was small."
PW13 "I was given the demonstration of the use of phenolphthalein powder. I was informed that if any person touches the tainted currency notes and thereafter, if he puts his fingers in a solution of sodium carbonate, then the colour of the sodium CC No. 48/2022 CBI v. Hari Ram 152/231 carbonate turned into pink. The said demonstration was done with Sh. Sumeet Sheron. After the said demonstration, we searched each other to verify that nobody was carrying any incriminating articles. After the search, the tainted amount was put in the pant pocket of the complainant.
A new memory card was arranged and the same was opened in my presence and thereafter, inserted in the DVR. Thereafter, my introductory voice and that of Sh. Sumit Sheoren was recorded in the memory card with the help of DVR. Thereafter, the DVR was switched off and the same was kept in the pocket of the complainant. Thereafter, the complainant made a call to Ct. Hari Ram while his phone was on speaker mode, however, the call was not attended by Ct. Hari Ram. We left the CBI office at about 11:15 am. Before leaving the CBI office, the CBI officials noted down the numbers of currency notes in our presence. The entire procedure was mentioned in a memo by the CBI officials. I do not remember whether I signed the said memo/document or not.
The witness is shown D-4 already Ex. PW6/C (pre- trap memo). After going through the said document, the witness states that Ex. PW6/C was prepared in my presence and same bears my signatures at point B. Thereafter, we left the CBI office and reached near Indraprastha Park at Sarai Kale Khan. Thereafter, the complainant made a call to Ct. Hari Ram from his mobile phone, however, the said call was not picked by Ct. Hari Ram. After 10-15 minutes, the complainant received a call on his mobile phone from Ct. Hari Ram and Ct. Hari Ram asked the complainant to meet him at the police booth at around 5:00 pm. I do not remember whether I heard the said call or not. At around 4:00 pm, the complainant again called Ct. Hari Ram but his phone was busy. The entire CBI team reached near the police booth at about 5:00 pm and the team members took their respective positions. The complainant first told by the CBI team that he would give them indications after having met Ct. Hari Ram either by putting his hands on his head or by making a call. I do not remember if anything else was done by the CBI team at that time. Thereafter, the complainant went inside the police booth while the CBI team members including me remained position outside. After sometime, the complainant came out of the police booth. The complainant did not give any indication at that time. On CBI official whose name I do not know went to the complainant and on his indication, all of us entered the police booth. After reaching inside the police booth, the CBI officials got hold of Ct. Hari Ram, one by his left hand and the other by his right hand. The CBI team inquires from Ct. Hari Ram as to where is the tainted money, however, Ct. Hari Ram puzzled at that time, did not give any CC No. 48/2022 CBI v. Hari Ram 153/231 answer. Upon being inquired repeatedly, Ct. Hari Ram told the CBI officials that he has kept the money in a trouser amongst the 4-5 trousers which were hung on the wall of the police booth. Thereafter, I took out the money from one of the trouser which was hung on the wall. Thereafter, the solution of sodium carbonate was prepared in which handwash of Ct. Hari Ram, both hands was obtained. The colour of the solution turned from white to pink. The solution was poured in under water and the same was thereafter, sealed. My signatures and that of Sh. Sumit Sheoren were obtained on the sealed bottles.
At this stage, Ex. PW3/P1 is produced from Malkhana, CBI which has been shown to the witness. After seeing the same, the witness states that the same bears his signatures at point C. At this stage, Ex. PW3/P2 is produced from Malkhana, CBI which has been shown to the witness. After seeing the same, the witness states that the same bears his signatures at point C. At this stage, Ex. PW3/P4 is produced from Malkhana, CBI which has been shown to the witness. After seeing the same, the witness states that the same bears his signatures at point C. The pant from which the tainted money was recovered was also seized and sealed by the CBI officials. Ct. Hari Ram had also pointed towards the drawer of a table when the CBI officials have inquired from him about the tainted money, before he had pointed towards the trousers. CBI officials had obtained the finger prints of the drawer of the table. The CBI officials had wiped the drawer with a cloth piece which they were carrying. The said cloth was also seized and sealed by the CBI officials. Thereafter, as there was space crunch in the police booth, the entire CBI team alongwith Ct. Hari Ram came back to the CBI office. The tainted money which was recovered from the trouser was tallied with memo already Ex. PW6/C and found to be matching with the same."
7.10 No doubt PW6 made certain statements which are/were inconsistent with the prosecution case as regards the acceptance of the bribe amount and the trap proceedings, however, I have no hesitation in concluding that PW6 deliberately made those inconsistent statements as he had been won over by the accused and wanted to benefit him. Nonetheless, certain crucial facts stand proved on record from his testimony as CC No. 48/2022 CBI v. Hari Ram 154/231 regards the trap proceedings i.e. the fact that he had arranged/brought the bribe amount which was to be paid to the accused; it's treatment with phenolphthalein powder; preparation of pre-trap memo Ex. PW6/C; as well as the fact that calls were exchanged between him and the accused immediately before the trap. The relevant portion of his examination in chief in this regard is reproduced hereunder:-
"On 05.05.2022, I reached CBI office at about 10-10:30 am with the bribe amount of Rs. 16,000/-. There I met Inspector Mahender Singh and independent witness Sumit and one more independent witness namely, Lokesh. There were other CBI officials, whose name, I do not remember. I produced the bribe amount of Rs. 16,000/- with the denomination of Rs. 500/- and handed over the same to Inspector Mahender Singh, who noted down the details of said amount on some paper as well as on computer. Thereafter, said money of Rs. 16,000/- was treated with some powder by one CBI official. A demonstration was given regarding the reaction of said powder with some solution. Either one of the independent witness or one of the CBI official was asked to touch the tainted amount and then to put his hands in said solution, upon which the solution turned pink colour and the same was thrown. One of the CBI official then handed over said tainted money to me and I put said money in my wearing pant pocket. I was instructed to give the bribe amount on the demand by Ct. Hari Ram and was also asked to give signal by taking off my cap from the head after the transaction was over. All the said pre-trap proceedings were reduced into writing by the CBI official and the signature of all the trap team members including me were taken on the same.
At this stage, witness is shown pre-trap memo dated 05.5.2022 (D-4) running into 07 pages. Witness identifies his signature on the same at point A on each page. The pre- trap memo is now exhibited as Ex. PW6/C. I was searched by one of the CBI officer to ensure that I do not carry anything incriminatory other than the tainted money and my mobile phone.
The independent witness Sh. Sumit was also directed to remain with him as witness to see the transaction and over hear the likely conversation between me and Ct. Hari Ram. I was directed to make a call to Ct. Hari Ram but the said call was not picked up by him and at that time, the recording was also going on.
CC No. 48/2022 CBI v. Hari Ram 155/231 Thereafter, all the team members including independent witnesses left for the spot i.e. Sarai Kale Khan in my car as well as three more officials of CBI. On reaching the spot, one more call was made by me from my mobile phone to the mobile phone of Ct. Hari Ram. The same was also not picked up by Ct. Hari Ram. Whenever, I was directed to make call, the recording was being done of the same. Thereafter, after waiting for sometime, one of my call got connected. Again said: I received a call from the accused and the accused asked me to come at the police booth in the afternoon."' 7.11 The fact that the complainant had met accused Constable Hari Ram and not any other police official/HC Hari Ram on 04.05.2022 stands further proved from the fact that the money/bribe amount was recovered at the instance of, on the pointing out of the accused. This amount/bribe was accepted by him pursuant to, in continuation of demand. But for the fact that he had demanded the amount he would not have accepted the bribe amount, directed the complainant to keep it in the table's drawer and thereafter, removed it & kept it in his trouser. Had he not demanded the amount on 04.05.2022 and had he not accepted the same on 05.05.2022 there was/would not have been any occasion for him to be aware about as to the whereabouts of the bribe amount, which he pointed out/disclosed to the CBI team. The relevant portion of the testimony of PW13 Sh. Lokesh Kumar in this regard is reproduced hereunder:-
"After reaching inside the police booth, the CBI officials got hold of Ct. Hari Ram, one by his left hand and the other by his right hand. The CBI team inquires from Ct. Hari Ram as to where is the tainted money, however, Ct. Hari Ram puzzled at that time, did not give any answer. Upon being inquired repeatedly, Ct. Hari Ram told the CBI officials that he has kept the money in a trouser amongst the 4-5 trousers which were hung on the wall of the police booth. Thereafter, I took out the money from one of the trouser which was hung on the wall. Thereafter, the CC No. 48/2022 CBI v. Hari Ram 156/231 solution of sodium carbonate was prepared in which handwash of Ct. Hari Ram, both hands was obtained. The colour of the solution turned from white to pink. The solution was poured in under water and the same was thereafter, sealed. My signatures and that of Sh. Sumit Sheoren were obtained on the sealed bottles.
At this stage, Ex. PW3/P1 is produced from Malkhana, CBI which has been shown to the witness. After seeing the same, the witness states that the same bears his signatures at point C. At this stage, Ex. PW3/P2 is produced from Malkhana, CBI which has been shown to the witness.
After seeing the same, the witness states that the same bears his signatures at point C. At this stage, Ex. PW3/P4 is produced from Malkhana, CBI which has been shown to the witness. After seeing the same, the witness states that the same bears his signatures at point C. The pant from which the tainted money was recovered was also seized and sealed by the CBI officials. Ct. Hari Ram had also pointed towards the drawer of a table when the CBI officials have inquired from him about the tainted money, before he had pointed towards the trousers. CBI officials had obtained the finger prints of the drawer of the table. The CBI officials had wiped the drawer with a cloth piece which they were carrying. The said cloth was also seized and sealed by the CBI officials. Thereafter, as there was space crunch in the police booth, the entire CBI team alongwith Ct. Hari Ram came back to the CBI office. The tainted money which was recovered from the trouser was tallied with memo already Ex. PW6/C and found to be matching with the same.........The tainted money was recovered from the back side of the pant hanging on the wall. Wash of the pant was also taken and the solution turned pink. The solution which turned pink also sealed in a bottle.
At this stage, Malkhana, CBI has produced sealed bottle Ex. PW3/P3. After seeing the same, the witness identifies his signatures at point C. The witness has identified the bottle and stated that this is the same bottle in which the pant wash was taken."
7.12 The transcript of the recording of the day of verification i.e. Ex. PW10/C (colly) has been reproduced above CC No. 48/2022 CBI v. Hari Ram 157/231 and the relevant portion wherein the accused directed the complainant to keep the amount in the table's drawer is reproduced hereunder:-
7.13 Undoubtedly, PW6 gave an inconsistent statement as regards the place from where the bribe money was recovered when he stated as under:-
"I accompanied them at that time. The CBI officials caught Hari Ram and started inquiring him about the money. Hari CC No. 48/2022 CBI v. Hari Ram 158/231 Ram refused accepting any money. I was also asked by the CBI officials about the money and I informed them that the money was kept in the drawer, upon which, the CBI officials searched the drawer but they could not find the bribe amount in the same. The CBI officials inquired Hari Ram about the money but Hari Ram refused any knowledge about the money and after we repeatedly inquired, Hari Ram took out the money from the back pocket of his wearing trouser. It is wrong to suggest that the money was recovered from the trouser worn by Hari Ram. It is further wrong to suggest that the bribe money was recovered from a trouser which was hanging in the adjacent room. It is further wrong to suggest that that the bribe money was recovered at the instance of Hari Ram. (Vol. I am not sure from where the money was recovered, I am confused)."
,however, it has already been discussed above that PW6 being won over by the accused made certain contrary, false statements. The testimony of independent witness Sh. Lokesh Kumar/PW13 leaves no doubt that the money/bribe amount was recovered at the instance, on the pointing out of the accused and the same was recovered from a trouser, which was hung on the wall of the police booth. In addition to PW13's testimony, testimony of the other independent witness Sh. Sumit Sheoren/PW10 further corroborates the recovery of the bribe money, at the instance/pointing out of accused, from the trouser hung on the wall of the police booth. The relevant portion of testimony of PW10 in this regard read as under:-
"However, the complainant informed that he had kept the money in the drawer of wooden table, which was lying in the police chowki on the asking of the accused. Thereafter, the drawer of said table was opened but no money was found inside said drawer. Accused was again asked about the bribe money but he repeated denied to have accepted any money. On the continuous asking by CBI official, accused told that he had kept the bribe money in the adjoining room at the back side. On his pointing out the CBI official went to that room and pointed towards one pant, which was hanging on a wall. The said pant was taken from there and on the checking of the pocket of said pant the bribe money i.e. GC notes of Rs. 8000/- in the CC No. 48/2022 CBI v. Hari Ram 159/231 denomination of Rs. 500/- each were found lying inside in one of the pocket of said pant."
7.14 Just because PW10 stated "I do not remember, who had checked the pant and took out said money from the pocket", that by itself does not create any doubt whatsoever upon the prosecution case once PW13 categorically stated that it was he who had taken out the bribe money from the trouser as pointed out by the accused. PW10/Sumit Sheoren forgot the said fact on account of lapse of time which is quite understandable.
7.15 Ld. Defence Counsel also vehemently argued that the bribe amount was never recovered at the instance of the accused and rather the said amount was planted by the CBI team. It was argued that from the statement made by PW13/Lokesh Kumar, during his cross-examination, it becomes evident that he had entered the police booth after 5-7 minutes of the CBI team entering there and that the pant/trouser from which the bribe amount was allegedly recovered was taken off the wall by the CBI team and handed over to PW13 for search. It was argued that during this intervening period of 5-7 minutes, the CBI team planted the bribe money in the said trouser/pant and subsequently got it recovered through PW13. In support of his arguments, Ld. Defence Counsel pointed out the following statements made by PW13 during his cross-examination:-
"The CBI team had not taken any position near the police booth. The complainant came out of the police booth after 30-35 minutes. After he came out, one CBI Inspector went to the complainant at the gate of the police booth and talked to him. Thereafter, the CBI team went inside the police booth. I and Sh. Sumit Sheoren went inside the police booth within 5-7 minutes when the CBI team entered the police booth. I do not remember the exact count but 5-7 police CC No. 48/2022 CBI v. Hari Ram 160/231 officials were present at the booth at that time. When I and Sh. Sumit Sheoren entered the booth, CBI officials had caught hold of the hand of accused Hari Ram...........At that time, accused Hari Ram was protesting that he had not accepted any money..................At that time, the other members of the CBI team started searching the police booth..............It is correct that I do not know what all transpired in the police booth before I entered the same. The trousers were hung on the wall in a room which was inside the room which we first entered in the police booth. The search was carried out by the CBI team in both the rooms. I was called inside the said room by the CBI officials, but I do not remember his name. The complainant was also present in the said inside room.
One of the pant, out of 4-5 pants which were hung on the wall, was taken off by a member of CBI team but I do not know his name. A member of the CBI team had asked me to check a particular pocket of the said pant/trouser. I had checked that particular back pocket of the said pant/trouser. I handed over the money recovered from the said pocket to the CBI team but I had not counted the money at that time.
I cannot say whether the money was kept in the pocket/trouser by the complainant or the CBI team before I was called inside the room and before I was asked to check the particular pocket of the trouser".
7.16 No doubt PW13 made certain inconsistent statements and also during his re-examination by Ld. PP for the CBI PW13 stated as under:-
"Ques:In your examination-in-chief you had stated that you had entered the police booth alongwith the CBI booth whereas, today you have stated that you had entered the police booth after 5-7 minutes of the CBI team entering the police booth. Which statement is correct?
Ans: The statement made by me today is correct. Ques: On the last date, you had stated that accused Hari Ram, on being repeatedly inquired had told the CBI team that he had kept the money in a pocket of the trouser hung on the wall of the police booth and that thereafter you took out the money from the trouser. Today you have stated that on instructions of CBI team, you had taken out the money from the trouser.
Ans: The statement made by me today is correct."
,however, considering the entire material on record CC No. 48/2022 CBI v. Hari Ram 161/231 especially the recordings, transcripts, CDR etc. and when it was PW13 only who had taken out the money from the trouser no question arises of the amount/bribe money being planted upon the accused. The inconsistent statements were not on account of the fact that the money was planted upon the accused but on account of lapse of time, memory. The incident being of 2022 and the statement of the witness being recorded in 2024, such inconsistencies are bound to occur. Moreover during his cross- examination when PW13 was confronted with his statement Mark PW13/A dated 17.06.2022 he categorically stated that the fact recorded from portion X to X in the said statement is correctly recorded as had happened on the said date. The said statement leaves no doubt that it was on the pointing out of his trouser i.e. Ex. PW13/C by the accused and its search by PW13 that the tainted money was recovered by PW13 from it. It makes no difference that PW13, during his cross-examination by Ld. Defence Counsel, stated that he is seeing the said statement for the first time once he already stated that whatever was recorded therein was correctly recorded as had transpired on that day. The evidence on record leaves absolutely no doubt that the bribe money was demanded by the accused on 04.05.2022, as well as prior to it and then again demanded & accepted by him on 05.05.2022. The recorded conversation in Ex. P-1 & Ex. P-6 along with their transcripts Ex. PW10/A (colly) & Ex. PW10/C (colly) as have been reproduced above unambiguously proves the same apart from the testimony of PW6, PW10, PW13 & PW17 etc. The prosecution has successfully established on record that the demanded bribe money was kept by the complainant in the table's drawer on the asking of, on the directions of the accused.
CC No. 48/2022 CBI v. Hari Ram 162/231 This fact stands duly recorded in memory card Ex. P-6 and also stands established through the testimony of PW6. After the complainant had left the police booth, the accused removed the amount from the table's drawer and kept it in the trouser hung on the wall in the police booth's room. He having touched, dealt with the bribe money, which was treated with phenolphthalein powder duly explains why his hand washes turned pink as was consistently proved by the prosecution witnesses. Had he not touched, dealt with the bribe money so, not removed the same from the table drawer and then kept in the trouser, his hand wash would not have given positive result for the presence of phenolphthalein powder. This itself completely rules out, negates the defence's case of planting.
7.17 As far as emphasis on the statement made by PW13 during his cross-examination is concerned, suffice would be to say that what is material is the recovery of the bribe amount from the trouser pointed out by the accused and not as to who removed the trouser from the wall i.e. whether the complainant or the CBI official. It stands consistently proved on record that the trouser was checked by Sh. Lokesh Kumar/PW13 and it was he who recovered the bribe money from the same. Moreover as discussed above, the accused cannot explain how the hand washes turned pink, in case he had not accepted or dealt with or kept the money from the table's drawer in the trouser. In fact, the acceptance was complete when the money was kept by the complainant in the table's drawer on the directions/instructions of the accused as stands duly recorded in memory card Ex. P-6. It is also to be noted that even the table wash gave positive result of presence of CC No. 48/2022 CBI v. Hari Ram 163/231 phenolphthalein powder and it was on account of the fact that the bribe amount, treated with phenolphthalein powder, was kept in the said table's drawer.
7.18 In addition to the testimony of PW6, PW10 & PW13, recovery of the tainted money/bribe amount, by PW13, at the instance/on the pointing out of the accused was also proved by PW17/ TLO Sandeep Kumar Tiwari. The relevant portion of the examination-in-chief of PW17 in this regard read as under:-
"At about 05.05 p.m. complainant could be seen coming out of the police booth along with an official in police uniform. Thereafter the complainant started moving on the adjacent road leading towards Nizamuddin railway station and the official in police uniform went inside the police booth. No signal was given by the complainant at that time. SI Devender Gautam started following the complainant, he reached the complainant and took the DVR from him and switch off the same and thereafter he asked him whether he had paid the amount to the accused or not on which complainant told SI Devender Gautam that instead of Rs. 16,000/-, the accused demanded Rs. 8000/- which was kept by the complainant in the drawer of a table inside the police booth, as instructed by accused Hari Ram. SI Devender Gautam alerted the CBI team and I along with Insp. Umesh, both independent witnesses and other team members apart from SI Devender and complainant entered the police booth Sarai Kale Khan. I confronted the accused for demanding and accepting bribe and I caught hold of his left hand wrist while Insp. Umesh caught hold of his right hand wrist. On being confronted, accused Hari Ram accepted having accepted money from the complainant and told us that he had instructed the complainant to put the money in the table's drawer. He further told us that immediately after the complainant left the police booth he took the money and kept the same in the left side rear pocket of a pant which was hanging on the wall inside the rest room of the police booth. We entered the said room and on pointing out of accused Hari Ram, independent witness Lokesh took off the pant from the wall and on its search bribe amount was recovered from the left side rear pocket of the said pant. The said amount was counted on my instruction by independent witness Lokesh and the same was tallied with the currency denomination, note numbers on the pre trap memorandum and found to be tallying. They were 16 notes of Rs. 500/-
CC No. 48/2022 CBI v. Hari Ram 164/231 each and after tallying with the pre trap memo, they were ticked on the same and signed/initialed by both the independent witnesses."
7.19 It was also argued by Ld. Defence Counsel that the washes were planted and the washes turned positive as the complainant had shaken hands with the accused. However, as far as the said argument is concerned, not only the said argument is highly inconsistent in itself because either the washes could have been planted or the washes turned positive because the complainant shook hands with the accused but the evidence on record also leaves no doubt that the amount was not planted upon the accused but the same was duly recovered from him, at his instance as he had accepted the demanded bribe. Having dealt with the bribe amount treated with phenolphthalein powder his hand wash in addition to the drawer wash and the trouser wash gave positive result, turned pink.
7.20 Though Ld. Defence Counsel pointed out statement of PW6 "One of the CBI official than handed over said tainted money to me and I put said money in my wearing pant pocket"
and also "Q. What did you do thereafter? Ans. After keeping the money in the drawer, I shook hands with Hari Ram and came out of the police booth. (Vol. I was trying to give him money but he asked me to keep the same in the drawer). It is wrong to suggest that the volunteer portion made by me is false" to argue that having touched the tainted money and having shaken hands with the accused, the hand wash of the accused gave positive result for the presence of phenolphthalein as phenolphthalein from the CC No. 48/2022 CBI v. Hari Ram 165/231 complainant's hand transferred to the hands of the accused. However, I find no merits in the said arguments.
7.21 As far as PW6's above statement is concerned, I have no hesitation in concluding that the same was a false statement, made at the behest of the accused, to benefit him. It stands duly proved on record that the money in the complainant's pocket was kept by independent witness Sh. Sumit Sheoran/PW10. The said fact is writ large from the pre-trap memo Ex. PW6/C wherein it is duly recorded "Thereafter, on direction, Sh. Sumit Sheoran (IW-1), kept the said tainted GC notes amounting to Rs. 16,000/- in the right side front pocket of jeans pant worn by the complainant". This pre-trap memo bears the signatures of all the trap team members including PW6, PW10, PW13, PW17 etc. PW17/TLO during his deposition in this regard stated "The other independent witness Sh. Sumit Sheoran put the trap money/the above GC notes in the right side front pocket of the jeans worn by complainant and he was asked not to touch the said money unless demanded by accused Hari Ram", and during his cross-examination it was not even once suggested to him that the amount was kept in the complainant's pocket by the complainant himself or for that matter by PW10 as PW10 during his testimony had claimed that it was he who had kept the amount in the complainant's pocket. The reason for the false statement made by the complainant is on account of the fact that he had been won over by the accused and as far as PW10's inconsistent statement is concerned same was on account of lapse of time, memory.
CC No. 48/2022 CBI v. Hari Ram 166/231
7.22 Most importantly, it stands squarely proved on
record that after the money was kept in the complainant's pocket and before the CBI team left for the spot/trap, the members of the team had washed their hands. The said fact is duly recorded in the pre-trap memo which reads as " All the trap team members and independent witnesses including the complainant washed their hands with soap and water. The complainant has been instructed not to touch the tainted bribe amount, and to handover/deliver the same to the accused Shri Hari Ram on his specific demand.........". The relevant testimony of PW10 in this regard read as "Thereafter, we all washed our hands". Similarly testimony of PW17 in this regard read as " Thereafter, the entire trap team washed their hands......" . Therefore no question arises of the accused's hand wash giving positive result because the complainant allegedly shook hands with him. As far as DW1 and DW4's statements to the fact that the complainant and accused had shaken hands at the police booth are concerned, it has already been discussed above that they deposed falsely at the instance of the accused. In fact though DW4 falsely claimed that the CBI officials had kept the money in the trouser hanging on the wall, however, it becomes more evident from his statement that the money was recovered from the trouser by the independent witness. It has been discussed above in detail that no question of planting the money/bribe money arises as the demand & the acceptance stands duly proved and it was on accused's instruction that the complainant had kept the money in the table's drawer. It was accused only who shifted the money from the table's drawer to his trouser. The relevant portion of testimony of DW4 which proves that the money was recovered by CC No. 48/2022 CBI v. Hari Ram 167/231 independent witness and not the CBI official in this regard is reproduced hereunder:-
"One CBI official entered the room inside the police booth and kept the money in a grey trouser which was hanging on the wall. The CBI officials also called 2-3 persons inside a police booth and told one of them that money was kept in the trouser and asked him to take it out. The said person took out the money from the trouser..........."
7.23 It was also argued by Ld. Defence Counsel that according to the prosecution case, the demonstration of use of phenolphthalein powder was given to the CBI team before leaving for the trap, however, the solution which had turned pink was not thrown away by the CBI team but was carried to the spot and it was this solution which was planted upon the accused. Ld. Defence Counsel highlighted the following statements made by PW6, PW10 and PW13 in this regard:-
PW6 "The solution after demonstration was not thrown away in my presence. I cannot say whether the solution after the demonstration was retained by the CBI or thrown away. I do not know whether the solution after the demonstration was kept in the bottle and paper slips were affixed on the same or the signatures of the witnesses were taken or not. I cannot say whether the CBI officials had carried the said solution in the bottle to the spot with them or not. (Vol. After demonstration, the CBI officials had washed their hands and taken the solution for throwing away but I do not know whether it was thrown or not)."
PW10 "The solution used in the demonstration after demonstration was taken away by one of the CBI officer for destroying the same. I do not remember, if said CBI official was part of the trap team or not. It is correct that the said solution was not destroyed in my presence. It is wrong to suggest that I cannot admit or deny if said solution was kept in the trap kit. Vol. It was not kept in the trap kit but was destroyed." PW13 "The solution which turned pink after the demonstration was not thrown away in my presence, but the same was taken away by the CBI officials/staff. Vol. (There was no place to CC No. 48/2022 CBI v. Hari Ram 168/231 throw away the solution at the spot where the demonstration was given). It is correct that as the solution was not thrown away in my presence, I cannot say whether the same was indeed thrown away or retained by the CBI team. I do not remember today whether the container used during the demonstration was taken to the spot or not."
7.24 As far as these arguments are concerned, it is evident from the pre-trap memo Ex. PW6/C that the said solution/wash of PW10 Sh. Sumit Sheoran was destroyed before leaving for the spot. The said fact is duly recorded in Ex. PW6/C as " The wash was shown to all concern and explained. The said demonstration wash was destroyed". In fact PW10's statement which Ld. Defence Counsel highlighted itself to the effect "Vol. It was not kept in the trap kit but was destroyed". PW17's deposition "The glass tumbler which was used for giving demonstration of phenolphthalein powder was thrown away in the office and a fresh glass tumbler was taken" also prove that the said solution was not taken to the spot but was destroyed before leaving for the trap.
7.25 Ld. Defence Counsel also argued that the hand wash not taken in the presence of PW6 and the independent witness which itself creates doubt upon the entire wash proceedings. He highlighted the following statements made by PW6 & PW13 to buttress his case:-
PW6 I do not know whether the CBI officials had got Hari Ram hand wash at the police booth as after recovery of the bribe amount, I was sent out of the police booth. It is wrong to suggest that the CBI officials got Hari Ram's hand wash in my presence at police booth itself with sodium carbonate solution which turned pink.........I do not remember whether the sample of the pant wash of the accused was taken or not.
CC No. 48/2022 CBI v. Hari Ram 169/231
PW13
It is correct that there was lot ruckus in the room at that time. After that, I and Sh. Sumit Sheoren sat in the outside room. CBI team had called me and Sh. Sumit Sheoren to sign the slips on the bottles.
The hand wash was taken in the inside room.
7.26 As far as the washes are concerned, the post-trap memo Ex. PW10/B which bears the signatures of the CBI team including the complainant and the independent witnesses records in detail as to how the wash proceedings of the accused's hands, table drawer of the police booth and the pant wash of the accused were conducted. I find no reason to disbelieve the said document or the facts recorded therein. As far as PW6 is concerned, obviously he turned hostile to give benefit to the accused.
Nonetheless he admitted having signed Ex. PW10/B. PW10 Sh. Sumit Sheoran categorically deposed that the hand wash of the accused was taken in his presence while stating " The water was taken in a empty glass and was mixed with the powder, which the trap team brought in the trap kit. Accused was asked to dip his hands in said solution in the glass and upon doing so, said solution turned pink and the same was transferred to clean empty glass bottle. The said bottle was capped and sealed with the seal (used at the time of verification), which I had brought on the date of trap, as per the instructions of the TLO". No suggestion was given to him that the hand wash was not so taken in his presence or that it was not sealed. Similarly, PW13 during his deposition in this regard deposed as under:-
"Upon being inquired repeatedly, Ct. Hari Ram told the CBI officials that he has kept the money in a trouser amongst the 4-5 trousers which were hung on the wall of the police booth. Thereafter, I took out the money from one of the trouser which was hung on the wall. Thereafter, the solution of sodium carbonate was prepared in which handwash of Ct.
CC No. 48/2022 CBI v. Hari Ram 170/231 Hari Ram, both hands was obtained. The colour of the solution turned from white to pink. The solution was poured in under water and the same was thereafter, sealed. My signatures and that of Sh. Sumit Sheoren were obtained on the sealed bottles.
At this stage, Ex. PW3/P1 is produced from Malkhana, CBI which has been shown to the witness. After seeing the same, the witness states that the same bears his signatures at point C. At this stage, Ex. PW3/P2 is produced from Malkhana, CBI which has been shown to the witness.
After seeing the same, the witness states that the same bears his signatures at point C. At this stage, Ex. PW3/P4 is produced from Malkhana, CBI which has been shown to the witness. After seeing the same, the witness states that the same bears his signatures at point C. The pant from which the tainted money was recovered was also seized and sealed by the CBI officials. Ct. Hari Ram had also pointed towards the drawer of a table when the CBI officials have inquired from him about the tainted money, before he had pointed towards the trousers. CBI officials had obtained the finger prints of the drawer of the table. The CBI officials had wiped the drawer with a cloth piece which they were carrying. The said cloth was also seized and sealed by the CBI officials."
7.27 Though PW13 did state, as was pointed out by Ld. Defence Counsel that as there was ruckus in the room at that time he & Sumit Sheoran sat in the outside room and that they were called to sign the slips on bottles, however, their above statements leave no doubt that the washes were taken in their presence which completely rules out any planting or false implication. On similar lines is the testimony of PW17 regarding the washes who also categorically denied the defence's suggestions that the washes were not taken in the presence of the independent witnesses.
7.28 It was also one of the argument of Ld. Defence Counsel that admittedly no pre-decided signal was given by the complainant after he came out of the police booth on the day of CC No. 48/2022 CBI v. Hari Ram 171/231 trap. It was argued that the complainant was instructed to give a pre-decided signal i.e. by scratching his head or by giving a missed call on TLO's mobile, once the transaction of bribe was over and the fact that he did not give any signal itself proves that there was no acceptance whatsoever and the bribe money was planted upon the accused. As far as this argument is concerned, just because the complainant did not give the signal will not alter the fact that the bribe money was handed over by him to and accepted by the accused in continuation of his demand. The demand & acceptance, as discussed above, stands duly proved on record. Why the signal was not given is duly recorded in the post- trap memo Ex. PW10/B. According to it, the complainant told the TLO as "The complainant further clarified that he forgot to give the pre decided signal out of his nervousness". PW10 corroborated the said fact when he deposed "One of the CBI official went towards the complainant, who was looking nervous and after a while the CBI official switched off the DVR after taking the same from the complainant".
7.29 It was also argued by Ld. Defence Counsel that the complainant's deposition itself proves that the accused never accepted any amount rather he was beaten, assaulted, slapped by the CBI officials. Ld. Defence Counsel highlighted the statement of PW10, PW13 as well as DW1 & DW4 wherein they stated that the accused was slapped by the CBI team. As far as the acceptance is concerned, the detailed discussion as above leaves no doubt that the amount was duly accepted by the accused and it was on his instance that the money was kept in table's drawer by the complainant. Merely because the accused initially denied CC No. 48/2022 CBI v. Hari Ram 172/231 having accepted the money or he was forced, pressurized by the CBI team will not alter the fact that he had demanded and accepted undue advantage/bribe from the complainant. No doubt he should not have been slapped, which fact was otherwise denied by the TLO, but merely because he was slapped does not lessen his guilt, crime.
7.30 The fact that the accused protested and shouted, when he was confronted by the CBI team after the trap and denied having accepted any money or that he was supported by other police officials is of no consequence. A criminal hardly ever accepts his crime. It is not as if he would have merely on the asking of the CBI team simpliciter admitted to taking bribe. The foremost tendency of a wrongdoer, criminal is to deny the wrongdoing, crime. The fact remains that he had demanded and accepted the bribe which was ultimately recovered from him/at his instance.
7.31 It has been discussed above that the money/bribe amount was recovered at his instance from his trouser which was hung in the police booth and it was he who had kept the money there after removing it from the drawer. PW10's and PW13's statements leaves absolutely no doubt that the recovery of the tainted money was effected at the instance of the accused. To highlight one such statement of PW10 "On the continuous asking by CBI official, accused told that he had kept the bribe money in the adjoining room at the back side. On his pointing out the CBI official went to that room and pointed towards one pant, which was hanging on a wall. The said pant was taken from there and CC No. 48/2022 CBI v. Hari Ram 173/231 on the checking of the pocket of said pant the bribe money i.e. GC notes of Rs. 8000/- in the denomination of Rs. 500/- each were found lying inside in one of the pocket of said pant". Same was reiterated by PW10 during his cross-examination when he stated "After the accused disclosed that he had kept the money in the adjoining room, I alongwith the other members of the CBI team went inside the said room". On similar lines is the deposition of PW13 which reads "Upon being inquired repeatedly, Ct. Hari Ram told the CBI officials that he has kept the money in a trouser amongst the 4-5 trousers which were hung on the wall of the police booth. Thereafter, I took out the money from one of the trouser which was hung on the wall". The above statement of PW13 coupled with that of PW17 and the post-trap memo Ex. PW10/B also takes care of PW10's statement " I do not remember, who had checked the pant and took out the said money from the pocket" as was highlighted by Ld. Defence Counsel to create doubts upon the recovery proceedings. As far as DW1 and DW4's testimony are concerned, same have already been dealt with in detail above.
7.32 Ld. Defence Counsel also argued that PW13 and PW17 admitted during their cross-examination that they had no personal knowledge as to what had transpired in the police booth before they entered the same. As far as the said argument is concerned, obviously before they entered the police booth they had no, in fact could not have any personal knowledge as to what transpired in the police booth. However, the CBI team was informed about the acceptance by the complainant after he came out of the police booth and the demand & acceptance stands duly CC No. 48/2022 CBI v. Hari Ram 174/231 recorded in Ex. P-6 whose transcript Ex. PW10/C (colly) has already been dealt with in detail above. What happened after they entered the police booth was the acceptance of the fact by the accused that he had accepted/received the demanded bribe from the complainant and its recovery at the instance of the accused.
7.33 Ld. Defence Counsel also argued that according to PW10 and PW13, they had entered the police booth after the CBI team had entered there. In fact he pointed out that according to PW13, he and PW10 went inside the police booth within 5-7 minutes of the CBI team entering the same and when they so entered, CBI officials had already caught hold of the hand of the accused. It was argued that this period of 5-7 minutes was misused by the CBI officials to plant the money in the trouser of the accused and Ld. Defence counsel laid much emphasis on PW13's following statement, to bring home his point that the bribe money was planted upon the accused:-
"The complainant came out of the police booth after 30-35 minutes. After he came out, one CBI Inspector went to the complainant at the gate of the police booth and talked to him. Thereafter, the CBI team went inside the police booth. I and Sh. Sumit Sheoren went inside the police booth within 5-7 minutes when the CBI team entered the police booth. I do not remember the exact count but 5-7 police officials were present at the booth at that time. When I and Sh. Sumit Sheoren entered the booth, CBI officials had caught hold of the hand of accused Hari Ram................
The trousers were hung on the wall in a room which was inside the room which we first entered in the police booth. The search was carried out by the CBI team in both the rooms. I was called inside the said room by the CBI officials, but I do not remember his name. The complainant was also present in the said inside room.
One of the pant, out of 4-5 pants which were hung on the wall, was taken off by a member of CBI team but I do not know his name. A member of the CBI team had asked me to check a particular pocket of the said pant/trouser. I had checked that particular back pocket of the said pant/trouser. I CC No. 48/2022 CBI v. Hari Ram 175/231 handed over the money recovered from the said pocket to the CBI team but I had not counted the money at that time.
I cannot say whether the money was kept in the pocket/trouser by the complainant or the CBI team before I was called inside the room and before I was asked to check the particular pocket of the trouser."
7.34 As far as the said arguments are concerned, as discussed above not only the demand but the acceptance stands duly recorded in Ex. P-1 and Ex. P-6. The conversation in Ex. P-1 and Ex. P-6 coupled with their transcripts Ex. PW10/A (colly) and Ex. PW10/C (colly) leaves no doubt that the accused had demanded & accepted the bribe amount and no question of planting the bribe amount on the accused, his trouser arises.
7.35 Before the above statements were made by PW13 during his cross-examination as recorded on 09.04.2024, PW13 had during his examination in chief as recorded on 02.04.2024 deposed as under:-
"After sometime, the complainant came out of the police booth. The complainant did not give any indication at that time. On CBI official whose name I do not know went to the complainant and on his indication, all of us entered the police booth. After reaching inside the police booth, the CBI officials got hold of Ct. Hari Ram, one by his left hand and the other by his right hand. The CBI team inquires from Ct. Hari Ram as to where is the tainted money, however, Ct. Hari Ram puzzled at that time, did not give any answer. Upon being inquired repeatedly, Ct. Hari Ram told the CBI officials that he has kept the money in a trouser amongst the 4-5 trousers which were hung on the wall of the police booth. Thereafter, I took out the money from one of the trouser which was hung on the wall."
7.36 The statement made in examination in chief leaves no doubt that PW13 had entered the police booth along with the CBI team and not after the CBI team had entered the police booth as was claimed by him subsequently during his cross-
CC No. 48/2022 CBI v. Hari Ram 176/231 examination. In my considered opinion the statement made by PW13 in his examination in chief narrates the true account and not what he had stated later on during his cross-examination. This is more so when the fact that all of them had entered the police booth together and the money was recovered from the trouser at the instance of the accused is duly recorded in the post-trap memo Ex. PW10/B bearing the signatures of PW13 apart from other CBI team members. The image of the relevant portion of Ex. PW10/B is reproduced hereunder:-
CC No. 48/2022 CBI v. Hari Ram 177/231
7.37 No doubt PW13 on his re-examination by Ld. PP fo
the CBI stated that the statement made by him during his cross- examination is correct and not the earlier one but considering the statement made in examination in chief coupled with Ex. PW10/B and the statement of PW17, I have no hesitation in concluding that the statement made by him during the cross- examination is/was incorrect. May be he got puzzled, confused the facts on account of lapse of time, memory or deliberately made incorrect statement for certain other reasons. The fact that all of them had entered the police booth simultaneously was duly deposed by PW17 when he stated "SI Devender Gautam alerted the CBI team and I along with Insp. Umesh, both independent witnesses and other team members apart from SI Devender and complainant entered the police booth Sarai Kale Khan ". In fact even according to PW10, PW13 entered the police booth with the CBI team and he followed them. The relevant portion read as "The CBI official in the other independent witness and the complainant went inside the police chowki, I also followed the CBI team and I saw that two CBI officials were holding the hands of accused Hari Ram".
7.38 Ld. Defence Counsel also pointed the following statement of PW13 to argue that amount of Rs. 8000/- was never handed over by the complainant to the CBI:-
"I do not remember whether after leaving the CBI office or after returning back to the CBI office whether complainant handed over any money to the CBI team or not. In my presence, no money was handed over by the complainant to the CBI team at the spot/police booth. No money was also handed over in my presence till the time we reached back at the CBI office by the complainant."
CC No. 48/2022 CBI v. Hari Ram 178/231
7.39 As far as the said argument is concerned, the
evidence on record, especially the conversation in Ex. P-6 and its transcript Ex. PW10/C (colly) leaves no doubt that Rs. 8000/- was accepted by the accused and Rs. 8000/- remained with the complainant which was seized by the CBI team/TLO. The said fact is duly recorded in Ex. PW10/B which bears the signatures of all the trap team members including PW13 and PW13 had categorically stated during his examination in chief "I usually sign any document after going through it's contents. I had signed the document Ex. PW10/B (D-5) after going through it's contents". The remaining Rs. 8000/- were seized and kept in a brown colour envelope which was marked as "Money recovered from complainant in RC 24(A)/2022", which envelope was proved as Ex. PW13/A. 7.40 Though it was also argued by Ld. Defence Counsel, while highlighting the contrary statements of PW13 & PW17 that the amount of Rs. 16,000/- was never produced by the complainant and the rather the said amount was arranged by the CBI from its secret funds, however, I find no merits in the said argument. From the testimony of PW6, PW10, PW14 as well as PW17 no doubt remain that the amount of Rs. 16,000/- i.e. the demanded bribe amount was produced by the complainant himself. One isolated statement of PW13 which is inconsistent with the prosecution case makes no difference once the prosecution story stands duly corroborated from the testimony of remaining witnesses as well as documentary evidence.
CC No. 48/2022 CBI v. Hari Ram 179/231
7.41 The fact that only Rs. 8000/- were kept in the drawer
was repeatedly deposed by the complainant. One such statement read as " I had some conversation with Hari Ram and I told him that I have brought Rs. 16,000/-, however, Hari Ram told me that only Rs. 8,000/- is to be given and therefore, I took out Rs. 8,000/- and remaining Rs. 8,000/- were kept in the drawer itself".
Though he had taken the entire amount of Rs. 16,000/- to the police booth, however, the accused had only accepted Rs. 8000/- which fact becomes more evident from Ex. PW10/C. The remaining amount was recovered, taken over by the CBI team/TLO from the complainant as is duly recorded in Ex. PW10/B and as was also categorically deposed by PW17 as under:-
"Thereafter on my instructions independent witness Lokesh took out the remaining Rs. 8000/- from the complainant's right side front pocket and they were tallied with the pre trap memo and found to be correct/same. The said currency notes were not ticked on the pre trap memo. The said amount/currency notes were also kept in brown envelope and sealed with the CBI brass seal. It was mentioned on the said envelope as "money recovered from the complainant in RC 24(A)/2022". I along with both the independent witnesses had also signed the said envelope.
At this stage, envelope bearing serial no. 4 is shown to the witness and after seeing the same, the witness states that the same bears his signature at point C, that of Lokesh at A and that of Sumit Sheron at point B. The envelope is already Ex. PW13/A. The court seal is broken and the same opened and is found containing 16 notes of Rs. 500/- denomination each and the witness states that it is the same amount which was taken out from the pocket of the complainant."
7.42 As discussed above, though the complainant had brought a sum of Rs. 16,000/- on the day of trap in terms of the accused's demand, however, accused had only accepted Rs. 8000/-. Rs. 8000/- as accepted by the accused were recovered CC No. 48/2022 CBI v. Hari Ram 180/231 from him/at his instance while the remaining Rs. 8,000/- remained with the complainant and the same was recovered/seized from the complainant by the independent witness. The acceptance of only Rs. 8000/- and its recovery stands corroborated by Ex. P-6 and Ex. PW10/C (colly). Had the accused been falsely implicated, had the intention of the CBI team been to plant the money upon the accused, the CBI team would have planted, shown recovery of entire Rs. 16,000/- and not just Rs. 8000/-. If the intention was to falsely implicate the accused; there was no conversation between him and the accused on the day of trap, as recorded in Ex. P-6; there was no demand & acceptance by the accused, then the complainant would have kept entire amount of Rs. 16,000/- in the drawer and not just Rs. 8000/-. This itself proves the truthfulness of the prosecution case. The relevant portion of testimony of PW6, PW10 and PW13 which finds due corroboration from the testimony of PW17 and post-trap memo Ex. PW10/B in this regard is reproduced hereunder:-
PW6 "The amount which I was carrying was Rs. 16,000/-. It is wrong to suggest that I was carrying Rs. 8,000/- and not Rs. 16,000/-. I had some conversation with Hari Ram and I told him that I have brought Rs. 16,000/-, however, Hari Ram told me that only Rs. 8,000/- is to be given and therefore, I took out Rs. 8,000/- and remaining Rs. 8,000/- were kept in the drawer itself."
PW10 "On the continuous asking by CBI official, accused told that he had kept the bribe money in the adjoining room at the back side. On his pointing out the CBI official went to that room and pointed towards one pant, which was hanging on a wall. The said pant was taken from there and on the checking of the pocket of said pant the bribe money i.e. GC notes of Rs. 8000/- in the denomination of Rs. 500/- each were found lying inside in one of the pocket of said pant."
PW13
CC No. 48/2022 CBI v. Hari Ram 181/231
"At this stage, two brown colour envelopes have been produced from Malkhana, CBI. Both the envelopes bear the case particulars i.e. RC No. 24(A)/2022/DLI and Malkhana No. MR-1, Memo-II. One bears serial no. 4 and the other serial no. 1. The envelope bearing serial no. 4 has "money recovered from the complainant in RC No. 24(A)/2022" written on the same while serial no. 1 has "trap money recovered from accused in RC No. 24(A)/2022". Both envelopes are duly sealed bearing the seal of CBI, ACB, ND-46/2022.
At this stage, envelope bearing serial no. 4 is shown to the witness and after seeing the same, the witness states that the same bears his signature at point A. The envelope is now Ex. PW13/A. The seal is broken and the same opened and is found containing 16 notes of Rs. 500/- denomination each and the witness states that it is the same amount which was brought by the complainant.
At this stage, envelope bearing serial no. 1 is shown to the witness and after seeing the same, the witness states that the same bears his signature at point A. The envelope is now Ex. PW13/B. The seal is broken and the same opened and is found containing 16 notes of Rs. 500/- denomination each as was duly recovered from the accused."
7.43 It was also one of the arguments of Ld. Defence Counsel that according to PW10 and PW13 the tick marks and signatures against the serial numbers of the currency notes, as mentioned on the pre-trap memo Ex. PW6/C, were taken at the CBI office and not at the spot as otherwise is the prosecution case. I have considered the statements of PW10 & PW13 as highlighted by Ld. Defence Counsel and I find no merits in his arguments. It is evident from their deposition, apart from other prosecution witnesses including the TLO and most importantly from Ex. PW6/C & Ex. PW10/B that signatures on Ex. PW6/C, wherein the denomination as well as details of GC notes as brought by the complainant to be paid as bribe were duly noted, were taken only after the amount recovered from the accused was tallied with the details as appearing in Ex. PW6/C. At the time CC No. 48/2022 CBI v. Hari Ram 182/231 when the details of GC notes were noted in Ex. PW6/C no signature of either PW10 or PW13 were taken against the GC notes numbers and their signatures were only taken on the pre-
trap memo. It was only after the recovery and upon being tallied that the tick mark and the signatures of PW10 and PW13 were taken on the pre-trap memo. The notes as were recovered from the accused were accordingly ticked in Ex. PW6/C. Ld. Defence Counsel unnecessarily tried to create confusion based upon the statement of PW10 to the effect "The details of currency notes of the bribe amount was noted down in my presence by the CBI official on some paper/memo upon which my signature were also taken", when no confusion as such exists. The signatures which PW10 talked about are the signatures appearing on the pre-trap memo i.e. at the bottom of the memo on all pages and not the signatures appearing against the column containing the details of the GC notes. The signatures appearing at point D1 on Ex. PW6/C were taken only after the recovery and not before. The image of the relevant portion of Ex. PW10/B highlighting the said fact is reproduced hereunder:-
CC No. 48/2022 CBI v. Hari Ram 183/231
7.44 As to where the tick marks were initialed and
signatures were affixed by PW10 and PW13 on Ex. PW6/C against the currency notes i.e. at the spot or at the CBI office, suffice would be to say that Ex. PW10/B makes its crystal clear that the same was done at the spot itself before the CBI team headed back to the office. The statements as highlighted by Ld. Defence Counsel, wherein PW10 and PW13 claimed that it was done at the CBI office were made by them solely on account of lapse of memory, time. The fact that the statements were made 1- 2 years after the post-trap proceedings sufficiently explains the inconsistencies, which otherwise does not go to the root of the case or create doubt upon the prosecution story.
7.45 It was also one of the arguments of Ld. Defence Counsel that the cotton cloth used for taking swab of the table's drawer was already smeared with phenolphthalein powder and accordingly it gave a positive result for its presence when it was treated with sodium carbonate and water. However, I find no CC No. 48/2022 CBI v. Hari Ram 184/231 merits in the said arguments. I completely fail to understand why the CBI team/officials would falsely implicate the accused. They had no grudge or enmity against him and no reasons to manipulate the evidence. The very fact that the acceptance was duly recorded in Ex. P-6 itself rules out false implication. Furthermore, it was not just the table wash but even the hand wash and the trouser wash of the accused gave positive result for the presence of phenolphthalein.
7.46 For similar reason I find no merits in the defence arguments that the documents on record are anti-dated or anti- timed. The proceedings as conducted in the present matter are duly recorded in the various memos including the verification memo Ex. PW6/B, pre-trap memo Ex. PW6/C and the post-trap memo Ex. PW10/B. The various other documents and the exhibits as produced during the trial were indeed prepared & seized at the time and on the day as mentioned in the above memos which duly bears the signatures of the trap team members. There might be minor inconsistencies here & there which are bound to occur with the passage of time and also considering the length of the proceedings but those inconsistencies do not shake the basic foundation of the prosecution case. At this stage it will be worthwhile to highlight the following observations of Hon'ble Apex Court in Edakkandi Dineshan@ P.Dineshan vs State Of Kerala 2025 (3) SCC 273:-
"15. The law relating to material contradiction in witness testimony has been discussed by this Court in the judgment of Rammi vs State of MP. It was held that:
(25) "It is common practice in trial court to make out contradictions from the previous statements. Merely Because there is inconsistency in evidence it is not sufficient to impair CC No. 48/2022 CBI v. Hari Ram 185/231 the credit of the witness. No Doubt Section 155 of the Evidence Act provides scope for impeaching the credit of a witness by proof of an inconsistent former statement. But a reading of the section would indicate that all inconsistent statements are not sufficient to impeach the credit of the witness. Only such of the inconsistent statement which is capable to be "contradicted" would affect the credit of the witness'' The above mentioned settled position of law was again reiterated by this Court in the judgment of Birbal Nath vs State of Rajasthan wherein it was held as under: "(19)No doubt statement given before police during investigation under section 161 are "previous statements"
under section 145 of the Evidence Act and therefore can be used to cross examine a witness. But this only for a limited purpose, to "contradict" such a witness. Even if the defense is successful in contradicting a witness, it would not always mean that the contradiction in her two statements would result in totally discrediting this witness. It is ere that we feel that the learned judges of the High Court have gone wrong. (21) In the landmark case of Tehshildar Singh v State of UP this Court has held that to contradict a witness would mean to "discredit" a witness. Therefore, unless and until the former statement of this witness is capable of "discrediting" a witness, it would have little relevance. A mere variation in the two statements would not be enough to discredit a witness. This has been followed consistently by this Court in its later judgement, including Rammi (Supra)". ........
18. Either a partial, untrue version of one of the witnesses or an exaggerated version of a witness may not be a sole reason to discard the entire prosecution case which is otherwise supported by clinching evidence such as truthful version of the witnesses, medical evidence, recovery of the weapons etc. At this stage, it may not be out of place to refer to the principle called as 'falsus in uno, falsus in omnibus'.
19. It is a settled position that 'falsus in uno, falsus in omnibus' (false in one thing, false in everything) that the above principle is foreign to our criminal law jurisprudence. This aspect has been considered by this Court in a plethora of judgements. In the case of Ram Vijay Singh vs State of UP, a Three Judge bench of this Hon'ble Court had held that:
"..(20) We do not find any merit in the arguments raised by the learned counsel for the Appellant. A part statement of a witness can be believed even though some part of the statement may not be relied upon by the Court. The maxim falsus in uno, falsus in omnibus is not the rile applied by the courts in India. This Court recently in a judgement IIangovan CC No. 48/2022 CBI v. Hari Ram 186/231 vs State of T.N. held that Indian Courts have always been reluctant to apply the principle as it is only a rile of caution. It was held as under:
"..(11) The Counsel for the Appellant lastly argued that once the witnesses had been disbelieved with respect to the co accused, their testimonies with respect to the present accused must also be discarded. The Counsel is, in effect, relying on the legal maxim "falsus in uno, falsus in omnibus", which Indian Courts have always been reluctant to apply. A three Judge bench of this Court, as far back as in 1957, in Nisar Ali v. State of UP, held on this point as follows "(9) This maxim has not received general acceptance in different jurisdictions in India nor has this maxim come to occupy the status of a rule of law. It is merely a rule of Caution. All that it amounts to is that in such cases the testimony may be disregarded and not that it must be disregarded.
(10) The Doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called "a mandatory rule of Evidence"
(21) Therefore, merely because a prosecution witness was not believed in respect of another accused, the testimony if the said witness cannot be disregarded qua the present Appellant. Still, further it is not necessary for the prosecution to examine all the witnesses who might have witnessed the occurrence. It is the quality if evidence which is relevant in criminal trial and not the quantity." Hence, as can be seen from above, it has being a consistent stand of this Hon'ble Court that the principle 'falsus in uno, falsus in omnibus' is not a rule of evidence and if the court inspires confidence from the rest of the testimony of such a witness, it can very well rely on such a part of the testimony and base a conviction upon it."
7.47 Though to create doubt upon the recovery proceedings, Ld. Defence Counsel highlighted the following statement made by PW6 during his cross-examination, by Ld. PP for the CBI:-
"The CBI officials inquired Hari Ram about the money but Hari Ram refused any knowledge about the money and after we repeatedly inquired, Hari Ram took out the money from the back pocket of his wearing trouser. It is wrong to suggest that the money was recovered from the trouser worn by Hari CC No. 48/2022 CBI v. Hari Ram 187/231 Ram. It is further wrong to suggest that the bribe money was recovered from a trouser which was hanging in the adjacent room."
,however, it has already been discussed above that the complainant had turned hostile just to give benefit to the accused as he was won over by him. It stands proved on record that the money was recovered from a trouser hung on a wall in the police booth, on the pointing out of the accused. As far as the above suggestions are concerned, I have no doubt that there appears to be typographical error as the two suggestions, which are self contradictory, could not have been given by Ld. PP for the CBI. It appears that the word "not" is missing in the first suggestion and the suggestion which appears to be given to the witness, but which could not be recorded correctly due to typographical error, seems to be "It is wrong to suggest that the money was (not) recovered from the trouser worn by Hari Ram. It is further wrong to suggest that the bribe money was recovered from a trouser which was hanging in the adjacent room". Also it is to be noted that after the above suggestion was given to the complainant he stated "It is further wrong to suggest that that the bribe money was recovered at the instance of Hari Ram. (Vol. I am not sure from where the money was recovered, I am confused)". The exhaustive discussion of the testimony of PW10, PW13 and PW17 in addition to the other material on record leaves no doubt that the recovery was indeed effected at the instance of the accused.
7.48 Though Ld. Defence counsel argued that no offer of search was given to accused before effecting his search/search of CC No. 48/2022 CBI v. Hari Ram 188/231 bribe money so as to rule out the possibility of planting and, therefore, the possibility of the bribe amount being planted upon him cannot be completely ruled out, however, I find no merits in the said argument. It has been discussed above that considering the evidence at hand, no question of planting the bribe money upon the accused arises. Nonetheless, it stands proved on record that on 05.05.2022, at the time when the CBI team left for the spot, the complainant was only allowed to keep his mobile phone, the tainted amount and the DVR containing the memory card Ex. P-6. The categoric deposition of PW10 in this regard read as "The personal search of all the trap team members was conducted to ensure that they do not carry any incriminatory material except the mobile phone". PW13 in this regard stated as "After the said demonstration, we searched each other to verify that nobody was carrying any incriminating articles." Similarly was deposed by PW14 & PW17. The cross-examination of these witnesses could not bring anything contrary on record. The testimony of the prosecution witnesses and the other material available on record completely rules out planting and squarely proves that it was a case of voluntary, conscious acceptance pursuant to demand. The bribe money was kept in the table's drawer by the complainant on the asking of the accused and after the complainant left the police booth, the accused removed the same and kept in his uniform/trouser as was hung on a wall inside a room at the police booth. It was on the disclosure & pointing out of the accused, in the presence of trap team, that the bribe amount was ultimately recovered. As far as discrepancies are concerned, minor/trivial discrepancies are natural and bound to occur with the passage of time but they are not strong enough CC No. 48/2022 CBI v. Hari Ram 189/231 to shake the foundation of the prosecution case. Therefore, reliance upon Suresh Kumar (supra) is of no use to the defence.
7.49 Though Ld. Defence Counsel also highlighted the statement of PW6 "It is correct that prior to leaving Sari Kale Khan Booth, CBI officials took the sample of the drawer from where the bribe money was recovered" to create doubt upon the recovery proceedings, however, the said isolated statement in view of the other statements of PW6 and more importantly PW10, PW13 and PW17 leaves no doubt that the bribe amount was recovered from the trouser and not the table's drawer as after the complainant had left the police booth the accused removed the bribe amount from the drawer and kept it in his trouser.
7.50 The contradictions as pointed out by Ld. Defence Counsel are insignificant when juxtaposed with the vivid & eloquent narration of incriminating facts proved & established beyond doubt. Given the time gap between the verification, trap proceedings viz-a-viz the deposition of the witnesses, minor contradictions on some details are bound to occur and are natural. The witnesses are not required to recollect and narrate the entire version with photographic memory notwithstanding the hiatus and passage of time. Picayune variations do not in any way negate and contradict the main and core incriminatory evidence of the demand of bribe, reason why the bribe was demanded and the actual taking of the bribe that was paid, which are the ingredients of the offence under Sections 7 of the PC Act, that as noticed above and hereinafter, have been proved and CC No. 48/2022 CBI v. Hari Ram 190/231 established beyond reasonable doubt. Documents prepared contemporaneously discussed above affirm the primary and ocular evidence.
7.51 The observations of the Hon'ble Apex Court in Balu Sudam Khalde & anr. v. State of Maharashtra (2023) 13 SCC 365 as regards appreciation of ocular evidence are reproduced hereunder:-
"25. The appreciation of ocular evidence is a hard task. There is no fixed or straight-jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under:
"I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. III. When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.
IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
CC No. 48/2022 CBI v. Hari Ram 191/231 V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another. IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him.
XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness."
[See Bharwada Bhoginbhai Hirjibhai v. State of CC No. 48/2022 CBI v. Hari Ram 192/231 Gujarat 1983 Cri LJ 1096 : (AIR 1983 SC 753) Leela Ram v. State of Haryana AIR 1995 SC 3717 and Tahsildar Singh v. State of UP (AIR 1959 SC 1012)]"
7.52 Hence, except for the minor/trivial inconsistencies which do not shake the basic foundation of the prosecution case, the evidence on record clearly proves the demand as well as the acceptance & recovery of the tainted money/bribe.
7.53 During the course of arguments Ld. Defence Counsel vehemently argued that admittedly none of the independent witnesses heard the alleged conversation which took place between the complainant and the accused either on 04.05.2022 or 05.05.2022 nor did they witness the alleged handing over, acceptance of the bribe amount. While relying upon Sudesh Kaushik (supra) and Dnyaneshwar Rao (supra) it was argued that the purpose of joining an independent witness in the verification and trap proceedings being not fulfilled, the said lacuna/loophole in the prosecution case is sufficient to create doubt upon the alleged demand as well as acceptance proceedings. However, I find no merits in the said arguments. As far as verification proceedings are concerned it has already been discussed above as to why PW10 did not enter the police booth. It was not even once suggested to PW10 that the police official whom the complainant had so met was not the accused or was some other police official.
7.54 As far as the day of trap is concerned, the testimony of PW6, PW10, PW13 and PW17 leaves no doubt that the independent witnesses were directed to remain at a distance so CC No. 48/2022 CBI v. Hari Ram 193/231 that they do not arise any suspicion in the mind of the accused. They were directed to observe the transaction in a discreet manner so that trap does not fail. The relevant testimony of PW17 in this regard is reproduced hereunder:-
PW17 (examination in chief) "Sh. Sumit Sheoran was asked to remain a shadow witness during the trap proceedings..........The shadow witness was also asked to witness the transaction as far as possible and give the signal accordingly.
PW17 (cross examination) "Generally the independent witnesses are joined in the proceedings and sent with the complainant in order to ensure and verify the genuineness of the proceedings, so that the independent witness may see and over hear the talks. (Vol. The independent witness is directed to observe the same in a discreet manner so that he does not arise any suspicion). Ques: Whether you had directed the independent witness to remain with the complainant so that he may allegedly over hear or allegedly watched the transaction, if any with any suspect.
Ans: The independent witness was directed to remain at a distance so that he does not arise any suspicion. Ques: Whether the complainant and the independent witness was briefed to give common introduction of each other to the alleged suspect in case of any query about the identity of the independent witness.
Ans: No such specific instruction was given and the independent witness was only asked to observe the proceedings in a discreet manner.............
I had directed independent witness Sh. Sumit Sheoran to accompany the complainant in order to overhear the talks and see the alleged transaction. (Vol. I had directed independent witness to follow the complainant in a manner that he does not arise any suspicion...............
The independent witness remained at a distance around 10- 12 paces from the police booth."
7.55 PW13 had also categorically deposed "Sh. Sumit Sheoren was keeping on watch on the complainant who was standing outside the police booth gate and talking to a police CC No. 48/2022 CBI v. Hari Ram 194/231 person in uniform. After sometime, complainant and the said police person who was infact accused Hari Ram and not known to Sh. Sumit Sheoren went inside the police booth". Not even once it was suggested to PW13 that the complainant had not met Hari Ram or that he had met some other police official. Testimony of PW6 & PW10 also leaves no doubt that PW10 had followed the complainant to the police booth on the day of trap. The relevant portion of PW10 in this regard read as " When we proceeded for the police booth, I was following the complainant by maintaining some distance from him. Complainant had not asked me to stay outside the police booth or not to accompany him inside the police booth. I stayed outside the police booth as I thought that accompanying the complainant may arise to suspicion in the mind of suspect and he would not talk about the deal of bribe with the complainant".
7.56 Merely because the conversation was not heard by the independent witnesses, that by itself does not create any iota of doubt on the prosecution case for the fact that the conversation stands duly proved on record vide Ex. P-1 & Ex. P-6 and the testimony of the prosecution witnesses regarding recording of these conversation as well as identification of the voices in the same has remained unimpeached. Moreover, the call records/ CDRs further establishes the meetings as well as the conversations on the day of the verification as well as the trap.
7.57 Hence reliance upon the above case laws and for that matter Joginder Singh Malik (supra) is of no help to the defence once PW10 explained that he did not enter the police booth so as CC No. 48/2022 CBI v. Hari Ram 195/231 to avoid any suspicion being raised in the mind of the accused, which could have resulted in failure of the trap. Often in bribe cases, the bribe is accepted in a clandestine manner and after taking proper safeguard, precautions. Presence of another individual with the complainant/bribe giver does raises suspicion in the mind of the accused and he becomes more cautious and vigilant. Though the law favours the presence and importance of a shadow witness in the trap party, however, merely because the shadow witness did not witness the exact transaction that by itself would not be sufficient to doubt the prosecution case when there is ample evidence pointing towards only one inevitable conclusion i.e. the guilt of the accused.
7.58 It is well settled law that it is the quality of evidence and not the quantity which matters and there is no requirement that the demand should have been overheard by anyone. Section 134 of the Indian Evidence Act does not require any minimum number of witnesses to be examined for proving a particular fact (Sunil Kumar V. State Govt. of NCT of Delhi SC 2004 (1) Criminal CC 524, Krishna Mochi and others Vs. State of Bihar (2002) 6SCC 81).
7.59 In Ram Karan Vs. State of Rajasthan 1997 (2) FAC 131, it was held as under:
"In our system of administration of justice no particular number of witnesses is necessary to prove or disprove a fact. If the testimony of a single witness is found worth reliance, conviction of an accused may safely be based on such testimony. In our system we follow the maxim that evidence is to be weighed and not counted. It is the "quality" and not the "quantity" of the evidence which matters in our system. This cardinal principle of appreciation of evidence in a case CC No. 48/2022 CBI v. Hari Ram 196/231 has been given a statutory recognition in Section 134 of the Evidence Act of 1872."
7.60 Further reliance may be placed upon the law laid down in Ambika Prasad and others Vs. State, (2002) 2 CRIMES 63 SC), Jawahar v. State, (Delhi) 2007(4) R.C.R.(Criminal) 336 and Appabhai v. State of Gujarat AIR 1988 SC 696.
7.61 At this stage it will be worthwhile to note the following observations made in State Of U.P vs Zakaullah AIR 1998 SUPREME COURT 1474:-
"The two remaining reasons, i.e., nobody overheard the demand made by the respondent for bribe and that the amount was found not in the right hand pocket but only in the left pocket, are flippant grounds which should never have merited consideration. xxxxxxxx (Emphasis supplied). Without any doubt this is one of such case, where the shadow witness- P.W.4 has turned hostile and has not supported the case of the prosecution but merely because a witness has been gained over or has become hostile for some other reason; the trustworthy and reliable testimony of other witnesses cannot be thrown to woods nor the same will be fatal for the case of the prosecution."
7.62 Ld. Defence Counsel vehemently argued that the CBI officials especially the verification officer & the trap laying officer apart from other official witnesses being interested witnesses had reasons to depose falsely against the accused and their testimony should be discarded. However, I find no merits in his arguments. In the case at hand I find no reasons to disbelieve the testimony of the official witnesses or for that matter the verification or the trap laying officer. They have/had no axe to grind with the accused, are independent witnesses and there is no law that solely on account of their official capacity, their evidence has to be given less weightage or viewed with suspicion. In fact conviction can be based upon the sole CC No. 48/2022 CBI v. Hari Ram 197/231 testimony of the police official who arranged the trap i.e. the Trap Laying Officer dehors the other evidence on record as held in State Of U.P vs Zakaullah (supra) wherein it was held as under:-
"......The most important evidence is that of PW-4 - Harendra Singh Sirohi, the Superintendent of Police who arranged the trap. We must mind the fact that he had no interest against the respondent. But the verve shown by him to bring his trap to a success is no ground to think that he had any animosity against the delinquent officer. He made arrangements to smear the phenolphtalein powder on the currency notes in order to satisfy himself that the public servant had in fact received the bribe and not that currency notes were just thrust into the pocket of an unwilling officer. Such a test in conducted for his conscientious satisfaction that he was proceeding against a real bribe taker and that an officer with integrity is not harassed unnecessarily. The evidence of such a witness as PW4 can be acted on even without the help of any corroboration (vide Prakash Chand vs. State (Delhi Administration): 1979 (2) SCR 330; Hazari Lal vs. Delhi Administration: 1980 (2) SCR 1053)."
7.63 The above judgment further takes care of the defence arguments that the demand was not overheard by the independent witness. In Hazari Lal Vs. Delhi Administration 1980 (2) SCR 1053 the peculiar facts were that out of the two panch witnesses one could not be examined as he became mentally deranged before the trial and other panch witness turned hostile. The Hon'ble Apex Court while upholding the conviction held as under:-
"We are not prepared to accept the submission of Shri Frank Anthony that the fact that he is the very Police Officer who laid the trap should be sufficient for us to insist upon corroboration. We do wish to say that there is no rule of prudence which has crystallized into a rule of law, nor indeed any rule of prudence, which requires that the evidence of such officers should be treated on the same footing as evidence of accomplices and there should be insistence on corroboration. In the facts and circumstances of a particular case a Court may be disinclined to act upon the evidence of such an officer without corroboration, but, equally, in the facts and circumstances of another case the CC No. 48/2022 CBI v. Hari Ram 198/231 Court may unhesitatingly accept the evidence of such an officer. It is all a matter of appreciation of evidence and on such matters there can be no hard and fast rule, nor can there be any precedential guidance."
7.64 There is no need of any independent corroboration of their testimony and even otherwise independent corroboration does not mean that every detail of what the witnesses of the raiding party have said must be corroborated by independent witnesses. The value of the testimony of a witness depends on diverse factors such as, the character of the witness, to what extent and in what manner he is interested, how he has fared in cross-examination, etc. There is no doubt that the testimony of partisan or interested witnesses must be scrutinized with care and there may be cases where the Court will as a matter of prudence look for independent corroboration, however, there is no universal or inflexible rule that the evidence of the witnesses of the raiding party who may be called partisan or interested witnesses must be discarded, unless independent corroboration is available. There is no general rule that the evidence of the raiding party is necessarily tainted or that on their evidence alone, it would be difficult to carry the guilt home. (The State Of Bihar vs Basawan Singh AIR 1958 SC 500).
7.65 In Ramesh Chander vs. State of Punjab 2005 (2) RCR (Criminal) 330, it has been held that in case, even the shadow witness turns hostile and independent witness was not examined, then the fact of recovery of tainted money is proved and in the absence of any reason for false implication, the conviction can be upheld. Same is the observation in State of UP Vs. Dr. G.K. Ghosh AIR 1984 1453.
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7.66 I find no reasons why prosecution witnesses would
depose falsely against the accused or fabricate or forge the record against him. Defence has not been able to explain as to why these witnesses who are themselves government servants would resort to perjury and concoct evidence in order to rope in innocent government servants. It is an absolutely fallacious argument and unreasonable to expect these police officials would go to the length of concocting false evidence for prosecuting & humiliating the accused thereby compromising their own conscience in the process. It has been observed in State of U.P. vs. Dr. G. K. Ghosh (supra) as under:-
"11. It is now time to deal with the criticism urged as a matter of course in the context of the police officer leading the raiding party namely that he is an interested witness. This is true, but only to an extent a very limited extent. He is interested in the success of the trap to ensure that a citizen, who complains of harassment by a Government officer making a demand for illegal gratification is protected and the role of his department in the protection of such citizen is vindicated. Perhaps it can be contended that he is interested in the success of the trap so that his ego is satisfied or that he earns a feather in his cap. At the same it must be realised that it is not frequently that a police officer, himself being a Government servant, would resort to perjury and concoct evidence in order to rope in an innocent Government servant. In the event of the Government servant concerned refusing to accept the currency notes offered by the complainant, it would not be reasonable to expect the police officer to go to the length of concocting a false seizure memo for prosecuting and humiliating him merely in order to save the face of the complainant, thereby compromising his own conscience. The Court may therefore, depending on the circumstances of a case, feel safe in accepting the prosecution version on the basis of the oral evidence of the complainant and the police officers even if the trap witnesses turn hostile or are found not to be independent. When therefore besides such evidence there is circumstantial evidence which is consistent with the guilt of the accused and not consistent with his innocence, there should be no difficulty in upholding the prosecution case."
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7.67 While relying upon S.K. Bhatia Vs. CBI 2019 (4)
JCC 3424 Delhi it was argued by Ld. Defence Counsel that the trap proceedings and for that matter the verification proceedings were not videographed for reasons best known to the CBI and that had the same been done it would have exposed the truth and rendered the prosecution case as false & frivolous. However, I find no merits in the said arguments. Merely because the verification & the trap proceedings were not videographed or photographed, that by itself has not affected the prosecution case in any manner. There is ample oral, documentary and circumstantial evidence on record against the accused. Moreover had the same been done, which would have meant use of more technical devices, it would have greatly enhanced the scope, the probabilities of discrepancies which are bound to occur with use of such devices, technology, instruments etc. If one thinks it practically the use of cameras for videography or photography of the verification and trap proceedings would make those proceedings, which are to be conducted in a discreet manner so as to avoid failure/botching up of honest/truthful cases, highly conspicuous and alert the person who is being verified/investigated and fail them at the very inception.
7.68 It was further argued by Ld. Defence Counsel that despite the presumption u/s 20 of the PC Act the prosecution is duty bound to prove its case beyond reasonable doubts and accused is required to raise a probable defence only. It was argued that the court is required to consider the explanation offered by the accused only on the touchstone of probability and CC No. 48/2022 CBI v. Hari Ram 201/231 not on the touchstone of proof beyond all reasonable doubts. It was argued that demand and acceptance of bribe is the sine qua non for attracting the provisions of section 7 of the PC Act and in the case at hand the said ingredients are completely lacking and therefore once the foundational facts of demand and acceptance could not be proved by the prosecution, no presumption u/s 20 of the PC Act arises against the accused. Reliance in this regard was placed upon Dnyaneshwar Rao (supra). However I find no merits in the said arguments.
7.69 In the case at hand, from the evidence on record the foundational facts essential to bring home the guilt against the accused stands duly established. On analysis of the evidence, the material available on record only one conclusion can be drawn i.e. he is guilty of having committed the alleged offence. There is ample evidence, as discussed in detail above, of demand and acceptance. No further proof is/was required to bring home the guilt against the accused. There is not one but plethora of evidence proving the demand and acceptance. The independent witnesses, the official witnesses and the expert opinion/CFSL report as well as the other technical evidence points only in one direction i.e. demand of bribe and its acceptance. There is ample corroboration ocular as well as documentary in the form of voice recording/expert report/CDRs etc. which has been discussed at length above.
7.70 At this stage it will be worthwhile to highlight the observations made by the Hon'ble Supreme Court in T. Shankar Prasad (supra) with regard to presumption u/s 4 (1) of the CC No. 48/2022 CBI v. Hari Ram 202/231 Prevention of Corruption Act 1988 which corresponds to section 20 of the amended Prevention of Corruption Act 1988:-
"Before proceeding further, we may point out that the expressions "may presume" and "shall presume" are defined in Section 4 of the Indian Evidence Act, 1872 (in short the 'Evidence Act'). The presumptions falling under the former category are compendiously known as "factual presumptions" or "discretionary presumptions" and those falling under the latter as "legal presumptions" or "compulsory presumptions". When the expression "shall be presumed" is employed in Section 4(1) of the Act, it must have the same import of compulsion.
When the sub-section deals with legal presumption, it is to be understood as in terrorem i.e. in tone of a command that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act etc., if the condition envisaged in the former part of the section is satisfied. The only condition for drawing such a legal presumption under Section 4 is that during trial it should be proved that the accused has accepted or agreed to accept any gratification. The Section does not say that the said condition should be satisfied through direct evidence. Its only requirement is that it must be proved that the accused has accepted or agreed to accept gratification. Direct evidence is one of the modes through which a fact can be proved. But that is not the only mode envisaged in the Evidence Act. (See M. Narsinga Rao v. State of A.P. (2001 (1) SCC 691). Proof of the fact depends upon the degree of probability of its having existed. The standard required for reaching the supposition is that of a prudent man acting in any important matter concerning him. Fletcher Moulton L.J. in Hawkins v. Powells Tillery Steam Coal Co. Ltd. (1911 (1) KB 988) observed as follows:
"Proof does not mean proof to rigid mathematical demonstration, because that is impossible; it must mean such evidence as would induce a reasonable man to come to a particular conclusion".
The said observation has stood the test of time and can now be followed as the standard of proof. In reaching the conclusion the Court can use the process of inferences to be drawn from facts produced or proved. Such inferences are akin to presumptions in law. Law gives absolute discretion to the Court to presume the existence of any fact which it thinks likely to have happened. In that process the Court may have regard to common course of natural events, human conduct, public or private business vis-`-vis the facts of the particular case. The discretion is clearly envisaged in Section 114 of the Evidence Act.
CC No. 48/2022 CBI v. Hari Ram 203/231 Presumption is an inference of a certain fact drawn from other proved facts. While inferring the existence of a fact from another, the Court is only applying a process of intelligent reasoning which the mind of a prudent man would do under similar circumstances. Presumption is not the final conclusion to be drawn from other facts. But it could as well be final if it remains undisturbed later. Presumption in law of evidence is a rule indicating the stage of shifting the burden of proof. From a certain fact or facts the Court can draw an inference and that would remain until such inference is either disproved or dispelled.
For the purpose of reaching one conclusion the Court can rely on a factual presumption. Unless the presumption is disproved or dispelled or rebutted the Court can treat the presumption as tantamounting to proof. However, as a caution of prudence we have to observe that it may be unsafe to use that presumption to draw yet another discretionary presumption unless there is a statutory compulsion. This Court has indicated so in Suresh Budharmal Kalani v. State of Maharashtra (1998 (7) SCC
337) "A presumption can be drawn only from facts and not from other presumptions by a process of probable and logical reasoning".
Illustration (a) to Section 114 of the Evidence Act says that the Court may presume that "a man who is in the possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession". That illustration can profitably be used in the present context as well when prosecution brought reliable materials that there was recovery of money from the accused. In fact the receipt and recovery is accepted. The other factor is the acceptability of the plea of loan, which the High Court itself has not held cogent or credible.
We may note that a three-Judge Bench in Raghubir Singh v. State of Punjab (1974 (4) SCC 560) held that the very fact that the accused was in possession of the marked currency notes against an allegation that he demanded and received the amount is "res ipsa loquitur". In Hazari Lal v. State (Delhi Admn.) (1980 (2) SCC 390) it was observed that there is no requirement to prove passing of money by direct evidence. It may also be proved by circumstantial evidence. In Madhukar Bhaskarrao Joshi v. State of Maharashtra (2000 (8) SCC
571) it was observed thus:
"The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was CC No. 48/2022 CBI v. Hari Ram 204/231 accepted "as motive or reward" for doing or forbearing to do any official act. So the word "gratification" need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like "gratification or any valuable thing". If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word "gratification" must be treated in the context to mean any payment for giving satisfaction to the public servant who received it".
.......
22.-In State of Madras v. A. Vaidiaratha Iyer (1958 SCR
580) after reproducing the relevant provisions of Section 4 of the Act this Court observed that where it is proved that a gratification has been accepted the presumption under Section 4 of the Act shall at once arise. It is a presumption of law and it is obligatory on the Court to raise it in every case brought under Section 4. In the reported case this Court allowed the appeal of the State of Madras and setting aside the impugned order of acquittal passed by the High Court restored that of the Special Judge convicting the respondent there. In C.I. Emden v. The State of U.P. (AIR 1960 SC 548) the appellant who was working as a local foreman, was found to have accepted a sum of Rs.375 from a railway contractor. The appellant's explanation was that he had borrowed the amount as he was in need of money for meeting the expenses of the clothing of his children who were studying in school. The Special Judge accepted the evidence of the contractor and held that the money had been taken as a bribe, that the defence story was improbable and untrue, that the presumption under Section 4 of the Act had to be raised and that the presumption had not been rebutted by the appellant and accordingly convicted him under Section 161 IPC and Section 5 of the Act. On appeal the High Court held that on the facts of that case the statutory presumption under Section 4 had to be raised, that the explanation offered by the appellant was improbable and palpably unreasonable and that the presumption had not been rebutted, and upheld the conviction. The appellant contended, on appeal in this Court, inter alia: (I) that the presumption under Section 4 could not be raised merely on proof of acceptance of money but it had further to be proved that the money was accepted as a bribe, (ii) that even if the presumption arose it was rebutted when the appellant offered a reasonably probable explanation. This Court, CC No. 48/2022 CBI v. Hari Ram 205/231 dealing with the presumption under Section 4, observed that such presumption arose when it was shown that the accused had received the stated amount and that the said amount was not legal remuneration. The word 'gratification in Section 4(1) was to be given its literal dictionary meaning of satisfaction or appetite or desire; it could not be construed to mean money paid by way of a bribe. The High Court was justified in raising the presumption against the appellant as it was admitted that he had received the money from the contractor and the amount received was other than legal remuneration. On the facts the explanation given by the accused, in agreement with the opinion of the High Court was held to be wholly unsatisfactory and unreasonable. In Dhanvantrai v. State of Maharashtra (AIR 1964 SC 575) it was observed that in order to raise the presumption under Section 4(1) of the Act what the prosecution has to prove is that the accused person has received 'gratification other than legal remuneration' and when it is shown that he has received a certain sum of money which was not a legal remuneration, then, the condition prescribed by this section is satisfied and the presumption thereunder must be raised. In Jhangan v. State of U.P. (1968 (3) SCR 766) the above decisions were approved and it is observed that mere receipt of money is sufficient to raise the presumption under Section 4(1) of the Act."
In C.I. Emden v. State of Uttar Pradesh (AIR 1960 SC
548) and V.D. Jhangan v. State of Uttar Pradesh (1966 (3) SCR 736) it was observed that if any money is received and no convincing, credible and acceptable explanation is offered by the accused as to how it came to be received by him, the presumption under Section 4 of the Act is available. When the receipt is admitted it is for the accused to prove as to how the presumption is not available as perforce the presumption arises and becomes operative.
These aspects were highlighted recently in State of Andhra Pradesh v. V. Vasudev Rao (JT 2003 (9) SC
119)."
7.71 In Lokeman Shah And Anr vs State of West Bengal AIR 2001 SUPREME COURT 1760 it has been held as under:-
"A fact is said to be proved when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought under the circumstances of a particular case, to act upon the supposition that it exists, (vide Section 3 of the Evidence Act). What is required is materials on which the court can reasonably act for CC No. 48/2022 CBI v. Hari Ram 206/231 reaching the supposition that a certain fact exists. Proof of the fact depends upon the degree of probability of its having existed. The standard required for reaching the supposition is that of a prudent man acting on any important matter concerning him. [vide M. Narsinga Rao vs. State of A.P. {2001 (1) SCC 691}]."
7.72 The following observations made in Neeraj Dutta (supra) as regards the fate of the prosecution case when the complainant turns hostile and when presumption u/s 20 of the PC Act can be drawn against the accused may also be noted:-
"10. The Constitution Bench was called upon to decide the question which we have quoted earlier. In paragraph 74, the conclusions of the Constitution have been summarised, which read thus:
"74. What emerges from the aforesaid discussion is summarised as under:
(a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13(1)(d)(i) and (ii) of the Act.
(b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.
(c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
(d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.
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(ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13(1)(d)(i) and (ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13(1)(d), (i) and (ii) respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13(1)(d) and (i) and (ii) of the Act.
(e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.
(f) In the event the complainant turns 'hostile', or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.
(g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said CC No. 48/2022 CBI v. Hari Ram 208/231 presumption is also subject to rebuttal. Section 20 does not apply to Section 13(1)(d) (i) and (ii) of the Act.
(h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point (e) as the former is a mandatory presumption while the latter is discretionary in nature." (emphasis added) The referred question was answered in paragraph 76 of the aforesaid judgment, which reads thus:
"76. Accordingly, the question referred for consideration of this Constitution Bench is answered as under:
In the absence of evidence of the complainant (direct/primary, oral/ documentary evidence), it is permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of the Act based on other evidence adduced by the prosecution." (emphasis added)
11. Even the issue of presumption under Section 20 of the PC Act has been answered by the Constitution Bench by holding that only on proof of the facts in issue, Section 20 mandates the Court to raise a presumption that illegal gratification was for the purpose of motive or reward as mentioned in Section 7 (as it existed prior to the amendment). In fact, the Constitution Bench has approved two decisions by the benches of three Hon'ble Judges in the cases of B. Jayaraj1 and P. Satyanarayana Murthy. There is another decision of a three Judges' bench in the case of N. Vijayakumar v. State of Tamil Nadu, which follows the view taken in the cases of B. Jayaraj and P. Satyanarayana Murthy. In paragraph 9 of the decision in the case of B. Jayaraj, this Court has dealt with the presumption under Section 20 of the PC Act. In paragraph 9, this Court held thus:
"9. Insofar as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Sections 13(1)(d)(i) and (ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent." (emphasis added) The presumption under Section 20 can be invoked only when the two basic facts CC No. 48/2022 CBI v. Hari Ram 209/231 required to be proved under Section 7, are proved. The said two basic facts are 'demand' and 'acceptance' of gratification. The presumption under Section 20 is that unless the contrary is proved, the acceptance of gratification shall be presumed to be for a motive or reward, as contemplated by Section 7. It means that once the basic facts of the demand of illegal gratification and acceptance thereof are proved, unless the contrary are proved, the Court will have to presume that the gratification was demanded and accepted as a motive or reward as contemplated by Section 7. However, this presumption is rebuttable. Even on the basis of the preponderance of probability, the accused can rebut the presumption.
12. In the case of N. Vijayakumar, another bench of three Hon'ble Judges dealt with the issue of presumption under Section 20 and the degree of proof required to establish the offences punishable under Section 7 and clauses (i) and (ii) Section 13(1)(d) read with Section 13(2) of PC Act. In paragraph 26, the bench held thus:
"26. It is equally well settled that mere recovery by itself cannot prove the charge of the prosecution against the accused. Reference can be made to the judgments of this Court in C.M. Girish Babu v. CBI [C.M. Girish Babu v. CBI, (2009) 3 SCC 779 : (2009) 2 SCC (Cri) 1] and in B. Jayaraj v. State of A.P. [B. Jayaraj v. State of A.P., (2014) 13 SCC 55 : (2014) 5 SCC (Cri) 543] In the aforesaid judgments of this Court while considering the case under Sections 7, 13(1)
(d)(i) and (ii) of the Prevention of Corruption Act, 1988 it is reiterated that to prove the charge, it has to be proved beyond reasonable doubt that the accused voluntarily accepted money knowing it to be bribe. Absence of proof of demand for illegal gratification and mere possession or recovery of currency notes is not sufficient to constitute such offence. In the said judgments it is also held that even the presumption under Section 20 of the Act can be drawn only after demand for and acceptance of illegal gratification is proved. It is also fairly well settled that initial presumption of innocence in the criminal jurisprudence gets doubled by acquittal recorded by the trial court." (emphasis added) Thus, the demand for gratification and its acceptance must be proved beyond a reasonable doubt.
13. Section 7, as existed prior to 26 th July 2018, was different from the present Section 7. The unamended Section 7 which is applicable in the present case, specifically refers to "any gratification". The substituted Section 7 does not use the word "gratification", but it uses a wider term "undue advantage". When the allegation is of demand of gratification and acceptance thereof by the accused, it must be as a motive or reward for doing or forbearing to do any official act. The CC No. 48/2022 CBI v. Hari Ram 210/231 fact that the demand and acceptance of gratification were for motive or reward as provided in Section 7 can be proved by invoking the presumption under Section 20 provided the basic allegations of the demand and acceptance are proved. In this case, we are also concerned with the offence punishable under clauses (i) and (ii) Section 13(1)(d) which is punishable under Section 13(2) of the PC Act. Clause (d) of subsection (1) of Section 13, which existed on the statute book prior to the amendment of 26th July 2018, has been quoted earlier. On a plain reading of clauses (i) and (ii) of Section 13(1)(d), it is apparent that proof of acceptance of illegal gratification will be necessary to prove the offences under clauses (i) and (ii) of Section 13(1)(d). In view of what is laid down by the Constitution Bench, in a given case, the demand and acceptance of illegal gratification by a public servant can be proved by circumstantial evidence in the absence of direct oral or documentary evidence. While answering the referred question, the Constitution Bench has observed that it is permissible to draw an inferential deduction of culpability and/or guilt of the public servant for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act. The conclusion is that in absence of direct evidence, the demand and/or acceptance can always be proved by other evidence such as circumstantial evidence."
7.73 At this stage, it will be worthwhile to highlight the following observations of the Hon'ble Apex Court in Subramanian Swamy vs Manmohan Singh & Ors.
MANU/SC/0067/2012:
"Today, corruption in our country not only poses a grave danger to the concept of constitutional governance, it also threatens the very foundation of Indian democracy and the Rule of Law. The magnitude of corruption in our public life is incompatible with the concept of a socialist, secular democratic republic. It cannot be disputed that where corruption begins all rights end. Corruption devalues human rights, chokes development and undermines justice, liberty, equality, fraternity which are the core values in our preambular vision. Therefore, the duty of the Court is that any anti- corruption law has to be interpreted and worked out in such a fashion as to strengthen the fight against corruption. That is to say in a situation where two constructions are eminently reasonable, the Court has to accept the one that seeks to eradicate corruption to the one which seeks to perpetuate it."
7.74 The prosecution has been able to establish the CC No. 48/2022 CBI v. Hari Ram 211/231 foundational facts beyond any iota of doubt. There is ample proof of demand and acceptance and it is well settled law that though proof beyond reasonable doubt should be adduced in all criminal cases, however, it is not necessary that the same should be perfect. In fact there cannot ever be a perfect proof in any criminal trial. Perfect proof can only exist in ideal situations which hardly exists. Investigation and collection of evidence is a cumbersome process and there are bound to be minor loopholes and lacunas even in the best of the investigation. But if the minor loopholes, contradictions, lacunas do not shake the basic foundation and there is sufficient material/substantive evidence, those loopholes and contradictions can be and rather should be easily ignored or else it will defeat the ends of justice. As observed in Iqbal Moosa Patel (supra) while quoting Miller v. Minister of Pensions (1947) 2 ALL ER 272 " The law would fail to protect the community if it permitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with sentence `of course, it is possible but not in the least probable,' the case is proved beyond reasonable doubt....It is true that under our existing jurisprudence in a criminal matter, we have to proceed with presumption of innocence, but at the same time, that presumption is to be judged on the basis of conceptions of a reasonable prudent man. Smelling doubts for the sake of giving benefit of doubt is not the law of the land."
7.75 The following observations made in Karnail Singh (supra) may also be kept in mind:-
CC No. 48/2022 CBI v. Hari Ram 212/231 "Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. [See: Gurbachan Singh v. Satpal Singh and Others [AIR 1990 SC 209]. Prosecution is not required to meet any and every hypothesis put forward by the accused. [See State of U.P. v. Ashok Kumar Srivastava [AIR 1992 SC 840]. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect.......... Vague hunches cannot take place of judicial evaluation. "A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties." (Per Viscount Simon in Stirland v. Director of Public Prosecution (1944 AC (PC) 315) quoted in State of U.P. v. Anil Singh (AIR 1988 SC 1998). Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. (See: Shivaji Sahebrao Bobade & Anr. v. State of Maharashtra (1974 (1) SCR 489), State of U.P. v. Krishna Gopal and Anr. (AIR 1988 SC 2154), and Gangadhar Behera and Ors. v. State of Orissa (2002 (7) Supreme 276)."
7.76 It will be worthwhile to highlight the following observations made in Inder Singh & Anr vs The State (Delhi Admn.) 1978 AIR 1091:-
"Credibility of testimony, oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. While it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that it should be perfect. If a case is proved too perfectly, it is argued that it is artificial; if a case has some flaws, inevitable because human beings are prone to err, it is argued that it is, too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many, guilty men must be callously allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot away with it because truth suffers some infirmity when projected through human processes. Judicial quest for perfect proof often accounts for police presentation of fool-proof concoction. Why fake up ? Because CC No. 48/2022 CBI v. Hari Ram 213/231 the court asks for manufacture to make truth look true ? No, we must be realistic.
"We are satisfied that the broad features of the case, the general trend of the testimony and the convincing array of facts which are indisputable, converge to the only conclusion that may be reasonably drawn, namely, that the accused are guilty. Theoretical possibilities may not shake up, fancied weaknesses may not defeat, when verdicts are rested on sure foundations. Stray chances of innocence haunting the corridors of the court cannot topple concurrent findings of guilt.
We feel unhappy that, while infirmity in some aspect or other of this prosecution case should not invalidate the culpability which is otherwise, veraciously made out, tragic occurrences like this one......"
7.77 It will also be worthwhile to highlight the following observations made by the Hon'ble Apex Court in Mohan Lal (supra):-
"26. Putting emphasis on balance between importance of individual liberty and evil of acquitting guilty persons, this Court observed as follows:
"6. Even at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs thro' the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then breakdown and lose credibility with the community. The evil of acquitting a guilty person light-heartedly, as a learned author (Glanville Williams in Proof of Guilt) has saliently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted `persons' and more CC No. 48/2022 CBI v. Hari Ram 214/231 severe punishment of those who are found guilty. Thus, too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that `a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent....' In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents."
(emphasis supplied) ..........
35. A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to "proof" is an exercise particular to each case. Referring to the interdependence of evidence and the confirmation of one piece of evidence by another, a learned author says [see "The Mathematics of Proof II": Glanville Williams, Criminal Law Review, 1979, by Sweet and Maxwell, p.340 (342)]:
"The simple multiplication rule does not apply if the separate pieces of evidence are dependent. Two events are dependent when they tend to occur together, and the evidence of such events may also be said to be dependent. In a criminal case, different pieces of evidence directed to establishing that the defendant did the prohibited act with the specified state of mind are generally dependent. A junior may feel doubt whether to credit an alleged confession, and doubt whether to infer guilt from the fact that the defendant fled from justice. But since it is generally guilty rather than innocent people who make confessions, and guilty rather than innocent people who run away, the two doubts are not to be multiplied together. The one piece of evidence may confirm the other."
36. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case.
37. The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units CC No. 48/2022 CBI v. Hari Ram 215/231 constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the Judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice. This position was illuminatingly stated by Venkatachaliah, J. (as His Lordship then was) in State of U.P. v. Krishna Gopal (1988 (4) SCC 302).
38. The above position was highlighted in Krishnan and Anr. v. State represented by Inspector of Police 2003 (3) RCR (Criminal) 885."
7.78 It is a settled law that once the foundational facts are proved a presumption would raise u/s 20 of the PC Act and the burden now rests upon the accused to displace the said statutory presumption (V. Sejappa (supra) ,however, in the case at hand the accused miserably failed to displace/rebut the said presumption. The accused cannot offer any explanation for his illegal activities i.e. demand & acceptance of the bribe as stands duly recorded in Ex. P-1 & Ex. P-6 and has been proved on record by the prosecution. I fail to understand what defence accused has in his favour to justify the demand and acceptance of the bribe/undue advantage duly recorded in Ex. P-1 and Ex. P-6. In B. Noha vs State of Kerala and anr AIRONLINE 2006 SC 603 it has been held as under:-
".............When it is proved that there was voluntary and conscious acceptance of the money, there is no further burden cast on the prosecution to prove by direct evidence, the demand or motive. It has only to be deduced from the facts and circumstances obtained in the particular case."
7.79 Though Ld. Defence counsel also relied upon Sunil Kumar Sharma (supra), T. Satyanarayana Murthy (supra) and C. CC No. 48/2022 CBI v. Hari Ram 216/231 Sukumaran (supra), however, as the demand & acceptance stands duly proved the said case laws do not come to the rescue of the accused. There is due, ample corroboration of both the demand and acceptance as has been discussed in detail.
7.80 As far as defence evidence is concerned, testimony of DW1 and DW4 have already been discussed above. As far as DW2 is concerned, purpose of his examination appears to be to justify the calls made by the accused on mobile no. 8882906295 which belongs to the complainant's wife. It has already been discussed above that the only purpose of calls was to raise demand of undue advantage. May be, though I find no reason to believe so merely on the strength of the oral deposition of DW2 who could not even furnish proof of his employment with the complainant, one of the call was made for finding the whereabouts of Mohd. Irshad, however, the detailed discussion as above, the transcripts and the recordings in Ex. P-1 and Ex. P-6 etc. leaves no doubt that the purpose of the remaining calls was only to seek undue advantage. Also DW2 did not state exactly when i.e. the date/month the call was made by accused Hari Ram.
7.81 The deposition of DW3 also does not come to the rescue of the accused. Just because he might have been approached by the accused and SI Dinesh to inquire about Mohd. Irshad that by itself does not even remotely affect or create doubt upon the prosecution case. Again the purpose appears to be to supplement DW2's deposition, justify the calls made to the complainant's wife by the accused.
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7.82 As far as DW5 is concerned, he merely proved the
CAF of Insp. Satish Kumar Bana's mobile phone. The purpose of examining of DW5 appears to be to establish the defence's case that Insp. Satish Kumar Bana was known to the complainant and that the complainant in collusion, connivance with him falsely implicated the accused. However, no question arises of any false implication much least because the complainant was knowing Insp. Satish Kumar Bana. Though complainant denied knowing Insp. Satish Kumar Bana or having talked to him on 04.05.2022 whereas the CDR establishes the call between the two of them, however, the said fact by itself does not render the prosecution case as false or concocted as the demand & acceptance stands duly proved in view of the above discussion. May be the complainant was knowing Insp. Satish Kumar Bana and sought his help, opinion, guidance as to how to tackle the illegal demands of the accused. There is nothing wrong in the same. It is to be noted that Insp. Satish Kumar Bana was not part of the verification team nor present on the day of verification as was categorically stated by PW10 & PW14 and he was only part of trap team. The verification duly established the demand of undue advantage/bribe and so did the trap proceedings. Most importantly, nothing has been proved on record to the effect that Insp. Satish Kumar Bana was having any grudges/enmity/rivalry with the accused or had any motive to falsely implicate him.
7.83 As far as reliance upon Mahindra Singh (supra) is concerned, the said case law does not come to the rescue of the accused. There is no denying the legal position that same treatment is required to be given to the defence witnesses as is to CC No. 48/2022 CBI v. Hari Ram 218/231 be given to the prosecution witnesses. However, what is to be seen is the credibility & reliability of the witness and the evidence furnished by him/them has to be appreciated in light of the other material on record. When considered in the given facts & circumstances, I have no hesitation that DW1 and DW4 deposed falsely at the instance of the accused and as far as DW2, DW3 and DW5 are concerned, their testimony is irrelevant, does not help the accused in any manner whatsoever. For similar reason, reliance upon P. Somaraju (supra) is of no help to the defence.
7.84 Though Ld. Defence Counsel relied upon a number of case laws/judgments in support of his arguments, however, none of the case laws come to the rescue of the accused considering the fact that the facts of those case laws were entirely different. As held in Megh Singh (supra) "Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases or between two accused in the same case. Each case depends on its own facts and a close similarity between one case and another is not enough because a single significant detail may alter the entire aspect. It is more pronounced in criminal cases where the backbone of adjudication is fact based".
7.85 As far as reliance upon Dashrath Singh Chauhan (supra), N. Sunkanna (supra), Sunil Kumar (supra), B. Jayaraj (supra), P. Satyanarayana Murthy (supra) is concerned, all these cases are distinguishable on facts nonetheless it is settled legal position that in order to constitute an offence u/s 7 of the PC Act CC No. 48/2022 CBI v. Hari Ram 219/231 both demand & acceptance has to be proved. In the case at hand the above detailed discussion clearly establishes that the prosecution has been successful in proving those essential ingredients beyond reasonable doubt. In the case at hand the demand and the acceptance was by the accused which stands duly proved on record from the oral testimony of the prosecution witnesses including the complainant & independent witnesses as well as from the scientific/expert evidence. The accused was in an exploiting position and had the opportunity to demand undue advantage from the complainant and accept undue advantage/bribe from him pursuant to the demand. The evidence brought on record by the prosecution is highly credible and inspires confidence. There is clinching evidence of demand & acceptance. The facts & circumstances brought on record in their entirety point only towards the culpability of the accused. Isolated statements, minor inconsistencies or contradictions as pointed by the Ld. Defence Counsel do not cast any aspersions over the prosecution case as a whole.
7.86 As far as reliance upon Kanti Prasad (supra) is concerned, again the said case law is based upon distinct facts altogether. In the case at hand there is sufficient proof of demand by word of mouth and not merely gestures as was the factual position in the said case. The demand was duly proved by the complainant, other prosecution witnesses and got duly recorded in Ex. P-1 & Ex. P-6. The demand coupled with the acceptance which also stands duly established on record sufficiently brings home the guilt against the accused. The facts of C. Sukumaran (supra) are also entirely different; there was no demand in the CC No. 48/2022 CBI v. Hari Ram 220/231 said case; doubts were created upon the phenolphthalein test; the uniform/shirt also did not show presence of phenolphthalein powder etc. Whereas in the case at hand demand of undue advantage/bribe at the time of verification and acceptance stands duly proved; the CFSL result regarding the hand washes, trouser washes is positive for presence of phenolphthalein and there is other supporting & corroborating evidence as has been duly discussed.
7.87 As far as reliance upon Prem Singh Yadav (supra) is concerned, suffice would be to say that the defence has miserably failed to prove on record any grudges, motive etc. the complainant might be having to falsely implicate him. Rather it was the accused's posting as Beat constable at Police Post Sarai Kale Khan, under PS Sunlight Colony, in whose jurisdiction the complainant was running his tour & travel business, which gave him an opportunity to demand and accept undue advantage from the complainant. Being in a position to exploit the complainant, he harassed him, his staff etc. to pay him a monthly bribe/undue advantage.
7.88 It was also argued by Ld. Defence Counsel that the complainant was annoyed with the accused as he stopped him from putting hoardings in front of the shop and prevented parking of vehicles to avoid traffic congestion because of which he falsely implicated the accused. However, I find no merits in the said argument. The detailed discussion as above establishes repeated demand by the accused which demand was in the form of monthly bribe. The recordings, transcripts, as reproduced CC No. 48/2022 CBI v. Hari Ram 221/231 above, do not relate to hoardings or parking issue rather the harassment caused by the accused just to pressurize the complainant to pay the bribe is clearly evident from the recordings/transcripts.
7.89 Merely because the complainant was/is involved in certain criminal matters that by itself does not render his testimony, in so far as it supports the prosecution case, unreliable. Complainant's involvement in other matters has no bearing whatsoever on the present case and the same does not by any means give immunity to the accused or lessen his guilt. Accused cannot take cover behind the criminal antecedents of the complainant, if any and has to answer for his own wrongdoings, criminal acts. Nonetheless it is to be seen that out of the four FIRs part of Ex. PW8/DA (colly), only one FIR bearing no. 438/2021 that too relating to cheating of Rs. 2700/- was registered prior to registration of the present case and the said FIR did not name the complainant/PW6 as an accused. In fact according to the complainant the said FIR was registered as he refused to give money to the police. FIR no. 336/2022 and 550/2022 with allegations of simple assault were registered after registration of the present FIR by adjoining shopkeepers, business rival. Both these FIRs and FIR no. 438/21 were registered at PS Sunlight Colony itself. As far as FIR no. 408/2022 is concerned, the complainant/PW6 is not an accused therein and the complainant of the said FIR is his wife. In fact the said FIR and FIR no. 336/2022 are cross cases.
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7.90 Unlike Joginder Singh Malik (supra) the accused
herein was not investigating any matter involving the complainant and the defence has completely failed to assign any ulterior motive to him for falsely implicating the accused. Complainant's testimony, though no doubt bit shaky on certain aspects, however, as discussed above at length, there is more than sufficient evidence pointing only towards the guilt of the accused.
7.91 While relying upon Chhote Lal (supra) Ld. Defence Counsel argued that complainant's testimony cannot be the solitary basis of convicting the accused as he is an interested witness, however, I find no merits in his arguments. At the outset, there is no legal bar to base a conviction on the testimony of a sole witness, whether the complainant or the injured himself or an eye witness provided his testimony inspires confidence. There is no need of any independent corroboration in such circumstances. Reliance in this regard may be placed upon The State of Punjab Vs. Gurmit Singh and ors 1996 AIR 1393 and State of Kerala Vs. Kurissum Moottil Antony Appeal (Crl.) 1134 of 2006 dated 09.11.2006. Nonetheless in the case at hand there is more than enough corroboration in the form of testimony of independent witnesses as well as scientific, expert evidence.
7.92 As far as reliance on M.K. Harshan (supra) is concerned, the said case is distinguishable on facts. As against the said case, the demand of undue advantage by the accused stands duly proved. The demand was in fact raised by him not once but twice i.e. at the time of verification as well as at the time CC No. 48/2022 CBI v. Hari Ram 223/231 of acceptance as has been discussed above in detail. On the day of acceptance accused had met the complainant at the police booth pursuant to the telephonic call. His presence at the police booth stands duly proved from the CDR/CAF and in fact it is not disputed that he was present at the police booth on the day of acceptance at the time when the complainant went there. The bribe money was kept in the table's drawer on the direction of the accused. Most importantly, it stands proved that the accused handled, dealt with the bribe money after removing the same from the drawer where it was kept by the complainant on his direction as has been discussed above in detail. Hence no question arises of the money being kept in the table's drawer without his knowledge.
7.93 As far as reliance upon Jahan Singh (supra) is concerned, the said case is also distinguishable on facts as in the said case the witnesses did not depose about the seal as was put on audio & video cassettes or about handing over of seal, the storekeeper was not examined, no CFSL opinion was received qua the transcripts and there were allegations of tampering whereas in the case at hand the witnesses have deposed about the use of the seal, its handing over to independent witness. There is no question of tampering of the case property and I am satisfied that the exhibits remained in safe custody during the course of investigation. Most importantly, the said case was only about making the demand and not about payment & acceptance of the bribe whereas in the case at hand the demand & acceptance of the undue advantage/bribe stands duly proved. Reliance upon Anil Kumar Tito (supra) is also misconceived on account of the facts CC No. 48/2022 CBI v. Hari Ram 224/231 being entirely different. It stands proved on record that Ex. P-1 & P-6 i.e. memory cards used in the verification & trap proceedings wherein the conversations of the accused and complainant were duly recorded were sealed with the CBI seal and the seal was handed over to independent witness Sh. Sumit Shearon (PW10). In fact after Ex. P-1 was sealed PW10 was handed over the seal with directions to produce the same at the time of trap proceedings and after its use in trap proceedings it was again handed over back to him. This ensured safe custody of the exhibits and completely ruled out the allegations of tampering which are otherwise bald and without any basis. Moreover unlike the said case, in the case at hand investigating copies of Ex. P-1 & P-6 were prepared before their sealing, as stands proved from Ex. PW6/B & Ex. PW10/B in addition to the testimony of the prosecution witnesses, with the help of write blocker and it was the investigating copies which were played before the witnesses during the investigation while the original sealed memory cards Ex. P-1 and P-6 along with the DVR were sent to CFSL for forensic examination. Also in the said case there was inordinate delay of around 5 months in registration of FIR and other factors including material inconsistencies in the testimony of the prosecution witnesses and most importantly, the trap failed as the accused did not raise any demand nor accepted any money. For similar reasons reliance upon Amarjit Singh (supra) is also not tenable as the facts of the said case were also different.
7.94 The reliance upon Ram Dutt Tyagi (supra) is also far fetched as the said case is also distinguishable on facts. In the said matter some of the consideration which weighed with the CC No. 48/2022 CBI v. Hari Ram 225/231 Hon'ble High Court in acquitting the accused were non examination of material witnesses in whose presence the demand was raised by the accused to the complainant; material contradictions/improvements in the statement of the complainant as regards where certain proceedings were conducted and also as regards the handing over of the seal. Though there are contradictions in the statement of the witnesses but not only they are natural but also too trivial to be given any undue weightage. Moreover, the factum of handing over the seal stands duly proved vide Ex. PW6/B & Ex. PW10/B in addition to the testimony of the independent witness.
7.95 As far as Mir Mustafa Ali Hashmi (supra) is concerned, the said judgment is also clearly distinguishable on facts. No question of planting the bribe money arises in the case at hand in view of the clear demand of the accused. The detailed discussion leaves no doubt that the acceptance was voluntary, conscious and pursuant to the demand which was duly captured in Ex. P-1 & Ex. P-6. Also in that case there was no hand wash whereas in the case at hand, the hand wash and the trouser wash of the accused gave positive result for presence of phenolphthalein powder thus further establishing his acceptance of tainted money/bribe.
7.96 As far as reliance upon Sunil Kumar Sharma (supra) and Sita Ram (supra) is concerned, the defence raised by the accused does not inspire confidence and the probability of his version does not create any doubt whatsoever on the prosecution case. On the contrary, the prosecution evidence as a whole CC No. 48/2022 CBI v. Hari Ram 226/231 inspires confidence and the prosecution has been able to prove its case beyond reasonable doubt.
7.97 The facts of Prithvi Singh Yadav (supra), as relied by Ld. Defence Counsel, are/were entirely different. In that case the independent witnesses did not support the key elements of the prosecution case, there was no site plan and most importantly the money/bribe amount was not recovered from the accused's pocket but from the roadside. In the case at hand, there is due corroboration of the prosecution story by the independent witnesses. The site plan is on record as Ex. PW10/E and the money/bribe amount was recovered from the accused's uniform/trouser at his instance as he had kept the same there after removing it from the table's drawer where it was kept by the complainant on his instructions/demand.
7.98 No doubt in Ex. PW10/E, the place from where the pant/trouser, from which the bribe amount was recovered, was recovered has not been shown in the site plan, however, the table/ drawer, the place of transaction i.e. where the complainant had met the accused and handed over/kept the amount on his instructions has been shown in the site plan. Even otherwise the site plan Ex. PW10/E is a rough site plan, not to scale. Even if there was no site plan it would not have made any difference once the demand and acceptance stands duly established.
7.99 As far as reliance upon Arjun Panditrao Khotkar (supra) is concerned, there was no necessity for the CFSL expert to give the certificate u/s 65B of Evidence Act as he had CC No. 48/2022 CBI v. Hari Ram 227/231 examined the original memory cards/devices and accordingly prepared the report which he proved in original.
7.100 Ld. Defence Counsel also argued that the sanction order u/s 19 of the PC Act i.e. Ex. PW4/B for prosecution of the accused is invalid as the same has been accorded without application of mind and is an exact replica of draft sanction Ex. PW4/D2. It was further argued that the sanctioning authority PW4 admitted that the draft sanction order was received by him and that no CD of the conversation or the CFSL result regarding chemical & voice examination was sent along with the forwarding letter to him. As far as the said argument is concerned, the testimony of PW4 leaves no doubt that it was only after due application of mind that the sanction order was passed by him. PW4 categorically stated "I perused the records sent to me by the CBI, which included the complaint filed by the complainant, statement of the public witnesses, seizure memos and various evidence available on the file and after going through all the documents, I applied my mind and accorded sanction against Ct. Hari Ram". No doubt the CD containing the recording of the conversation and CFSL results were not sent to him, however, there was still sufficient material before the sanctioning authority to consider, apply its mind and grant the sanction. The sanction order which is running into 6 pages is a detailed one covering all the essential aspects of the crime committed by Constable Hari Ram. The order speaks about the verification of the complaint and how the trap was conducted which established the acceptance of undue advantage/bribe by the accused and recovery of tainted money/bribe amount. The CC No. 48/2022 CBI v. Hari Ram 228/231 sanctioning authority carefully considered & examined various documents i.e. FIR, complaint, verification reports, pre-trap memorandum, post-trap memorandum, statement of witnesses etc. and then only accorded the sanction as is duly detailed in second last para of the sanction order.
7.101 As far as the similarities in the sanction order Ex. PW4/B and the draft sanction Ex. PW4/D2 as highlighted by Ld. Defence Counsel is concerned, suffice would be to say that the pointed similarities, mistake in the name of the accused does not by itself show any non application of mind in view of the detailed sanction order. It is not as if the draft sanction order was received from the CBI and PW4 blindly signed it. A bare glance at Ex. PW4/B and Ex. PW4/D2 leaves no doubt that the sanction order was prepared afresh in the office of PW4, though no doubt on the basis of Ex. PW4/D2 because of which the mistakes got repeated in Ex. PW4/B not only regarding the name of the accused but also the period of the CDRs/calls. Furthermore though in one para the date of the CDRs is wrongly mentioned as 11.01.2022 to 13.01.2022, however, in the remaining sanction order the date has been correctly mentioned not once but thrice i.e. 01.04.2022 to 06.05.2022.
7.102 As far as reliance upon K.C. Singh (supra), Manish Mathur (supra) and Ashok Kumar Aggarwal (supra) is concerned, in my considered opinion the mistakes as reproduced in the sanction order is mere irregularity which does not go to the root of the matter. It has not prejudiced the accused in any manner and has not led to failure of justice.
CC No. 48/2022 CBI v. Hari Ram 229/231
7.103 At this stage, it will be worthwhile to go through the
following observations of the Hon'ble Apex Court made in Dashrath (supra):-
"12. It is no longer res integra that requirement of sanction has a salutary object.
Provisions requiring sanction to prosecute, either under Section 19, PC Act or Section 197 of the (now repealed) Cr. PC or under Section 218 of the Bharatiya Nagarik Suraksha Sanhita, 2023 are intended to protect an innocent public servant against unwarranted and mala fide prosecution.
Indubitably, there can be no tolerance to corruption which has the effect of undermining core constitutional values of justice, equality, liberty and fraternity; however, at the same time, the need to prosecute and punish the corrupt is no ground to deny protection to the honest. This is what was held by this Court in its decision in Manzoor Ali Khan v. Union of India8 while repelling a challenge raised in a Public Interest Litigation to the constitutional validity of Section 19 of the PC Act.
13. Even otherwise, merely because there is any omission, error or irregularity in the matter of granting sanction, that does not affect the validity of the proceedings unless the court records its own satisfaction that such error, omission or irregularity has resulted in a failure of justice.
14. If a draft order is placed before the sanctioning authority and he is satisfied that nothing needs to be added/deleted therefrom, the grant of sanction cannot be faulted merely on the ground of absence of addition of words to/deletion of words from the draft. We have noticed that PW-3 made four minor corrections to ensure that the substance conforms to the form in which the sanction was required to be given, without altering the substance (i.e. the contents). That there has been a complete absence of application of mind by PW-3 is, thus, not proved; also, that there has been a failure of justice, has not been shown. On facts, we are satisfied that there has been no irregularity, far less illegality, in grant of sanction."
7.104 In C.S. Krishnamurthy Vs. State of Karnataka (2005) 4 SCC 81, the Hon'ble Apex Court held as under:-
"7................ It is no doubt true that sanction is necessary for every prosecution of public servant, this safeguard is against the frivolous prosecution against public servant (sic) CC No. 48/2022 CBI v. Hari Ram 230/231 from harassment. But, the sanction should not be taken as a shield to protect corrupt and dishonest public servant............ When the sanction itself is very expressive, then in that case, the argument that particular material was not properly placed before the sanctioning authority for according sanction and the sanctioning authority has not applied its mind becomes unsustainable. When sanction order itself is eloquent enough, then in that case only formal evidence has to be produced by the sanctioning authority or by any other evidence that the sanction was accorded by a competent person with due application of mind."
7.105 As observed in Darshan Lal (supra) "'24. In another case law reported as State of Madhya Pradesh & Ors. Vs. Jagdish Prasad Gupta, reported at JT 2000 (1) SC 518, while dealing with the provision of Prevention of Corruption Act, 1988, it was laid down that: Procedural delays and technicalities of law should not be permitted to defeat the object sought to be achieved by the Act. ..........", technicalities cannot be allowed to defeat the ends of justice.
8. Therefore, in view of the above discussion, as the prosecution case of demand as well as acceptance and recovery stands duly established, accused Hari Ram stands convicted for the offence u/s 7 of the Prevention of Corruption Act 1988.
9. Copy of the judgment be provided free of cost to the accused and let he be heard separately on the point of sentence.
Announced in the open court Digitally signed
GAURAV by GAURAV RAO
on 19th December 2025 RAO Date: 2025.12.24
11:53:47 +0530
(GAURAV RAO)
Special Judge CBI (PC Act)-01
Rouse Avenue Court
Complex, New Delhi
CC No. 48/2022 CBI v. Hari Ram 231/231