Delhi District Court
Cbi vs Tilak Singh Pal on 16 April, 2018
IN THE COURT OF MANOJ JAIN
SPECIAL JUDGE (PC ACT) (CBI)-04: TIS HAZARI COURTS: DELHI
CNR NO. DLCT01-012095-2016
NEW CC NO. 532382/2016
RC No. 27 (A)/2016
CBI Versus Tilak Singh Pal
Son of Sh. Jai Ram Singh Pal
Resident of D-1/55, Kuwar Singh
Nagar, Nangloi, Delhi
Permanent Address: Village Pichore,
Shivpuri, Behind Vishnu Temple,
Sidheshwar Road, MP.
Date of Institution : 06.09.2016
Date of Conclusion of Final Arguments : 04.04.2018
Date of Judgment : 16.04.2018
Memo of Appearance:
Sh. A.K. Rao, learned Sr. P.P. for CBI
Sh. Yogesh Verma, learned defence counsel
JUDGMENT
PROSECUTION VERSION 1.0 Accused was posted as Sub Inspector at police station Nihal Vihar. He was investigating officer of case FIR No. 419/2016 which had been registered on 31.5.2016 for commission of offences under Sections 387/341/506/34 IPC and Section 27 Arms Act.
1.1 Sh. Pradeep (brother of complainant Parveen herein) had been arrested in said case. His bail application had also been dismissed by the concerned court.
CC No. 532382/2016 CBI Vs. Tilak Singh Pal (CNR NO. DLCT01-012095-2016 ) Page No. 1 of 47 1.2 Accused assured complainant Parveen (PW-7) that he need not approach any advocate for securing bail of his brother. He put forth a demand of Rs. 1,00,000/- as bribe from him in this regard on 18.7.2016. After negotiation, the bribe amount was reduced to Rs. 80,000/-.
1.3 Since complainant Parveen was not interested in greasing the palms of SI Tilak Singh, he approached CBI with a written complaint (Ex. PW 1/A) on 19.7.2016.
1.4 Verification job was entrusted to SI Manish (PW-2) who carried out the same. Independent witness Ved Prakash (PW-10) was called for. A DVR was arranged and handed over to complainant with direction to record the conversation between him and suspect official. SI Manish (Verifying Officer) along with complainant and said independent witness left for police station Nihal Vihar. Complainant was directed to meet and interact with the suspect official at his office. Such conversation did take place which confirmed that accused had demanded a sum of Rs. 80,000/- for securing bail for his brother. Accordingly, verifying officer recommended registration of a regular case under Section 7 of Prevention of Corruption Act, 1988.
1.5 FIR was registered and trap was decided to be laid. Sh. Anand Sarup (PW-12) was deputed as trap laying officer (TLO).
1.6 On 20.7.2016, trap team was constituted which included independent witnesses Sh. Ved Prakash (PW-10) and Sh. Abhinav Singh (PW-11). After enlightening the trap team members about the purpose of assembly, the significance of use of phenolphthalein powder was explained to them and a practical demonstration followed thereafter. Complainant had brought Rs. 70,000/- for offering as bribe. Such notes were treated with said powder and were given to complainant CC No. 532382/2016 CBI Vs. Tilak Singh Pal (CNR NO. DLCT01-012095-2016 ) Page No. 2 of 47 with directions not to touch the tainted bribe money and to hand over the same to accused on his specific demand.
1.7 Raiding party, accordingly, left for police station Nihal Vihar. TLO directed complainant and shadow witness Ved Prakash to go inside. They had already been briefed to give a pre-determined signal after the transaction of bribe. DVR was strapped on the left upper arm of the complainant for recording of conversation.
1.8 In the office, accused made demand of bribe from complainant and also directed him to put such money in a 'bag' lying in the adjacent room of Inspector/ATO. Complainant did the same.
1.9 Pre-designated signal was flashed. Raiding team rushed inside. Sh. Abhinav Singh, independent witness (PW-11) recovered the bribe money from the same bag.
1.10 Wash of inner lining of bag, in which the bribe money had been put by complainant, was taken and the solution, so prepared, turned pink.
1.11 SHO, PS Nihal Vihar was informed about the trap and subsequent development. He reached police station and in his presence, search of the office of accused was carried out and the relevant file pertaining to said FIR no. 419/16 was seized.
1.12 Accused was, accordingly, arrested. His specimen voice was also taken during the investigation. Transcription of the conversation related to 'verification proceedings' and 'spot proceedings' were prepared. Reports from forensic experts also substantiated the allegations put forth by the prosecution.
CC No. 532382/2016 CBI Vs. Tilak Singh Pal (CNR NO. DLCT01-012095-2016 ) Page No. 3 of 47 COGNIZANCE AND CHARGES 2.0 Charge-sheet was submitted on 06.09.2016 for commission of offences under Sections 7 and 13 (2) read with Section 13 (1) (d) of Prevention of Corruption Act, 1988.
2.1 Cognizance was taken on 16.09.2016 and accused was directed to be summoned.
2.2 Arguments on charge were heard on 24.10.2016 and accused was ordered to be charged for commission of offences u/s 7, 13 (1) (d) r/w Section 13 (2) PC Act. Charges were framed accordingly to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE 3.0 Prosecution was directed to adduce evidence.
3.1 It examined thirteen witnesses. These are as under:-
Sl. No. Name PW Purpose of examination/to prove
1 PW-1 Subodh Rawat Accompanied complainant to CBI office for lodging of
complaint.
2 PW-2 SI Manish, CBI Verification Officer as well as member of trap team
3 PW-3 Ms. Deepti Bhargava, Sr. For proving chemical report about Paper Bag Wash
Scientific Officer showing presence of phenolphthalein and sodium
carbonate.
4 PW-4 Chander Shekhar, Nodal To prove CAF & CDR of Mobile No. 976711171 of
Officer- Bharti Airtel Ltd. complainant
CC No. 532382/2016 CBI Vs. Tilak Singh Pal (CNR NO. DLCT01-012095-2016 ) Page No. 4 of 47
5 PW-5 Raj Kumar Sharma, To prove CAF & CDR of Mobile No. 9868956268 of
Manager (Records), MTNL accused Tilak Singh Pal
6 PW-6 HC Manoj Kumar To prove posting details of accused, signature of SHO on
documents of case file FIR No. 419/16 and also for
identifying the voice of accused.
7 PW-7 Parveen (Complainant) To prove complaint, verification call and bribe transaction.
8 PW-8 Inspt. Sharat Chandra, To prove record of case FIR No. 419/16, PS Nihal Vihar
SHO, PS Nihal Vihar and for identification of voice of accused.
9 PW-9 Rama Shankar Yadav, For proving CDR of Mobile No. 98689556268
Assistant Manager, MTNL
10 PW-10 Ved Prakash Independent witness to verification proceedings and
member of trap team.
11 PW-11 Abhinav Singh Independent witness/member of trap team
12 PW-12 Inspt. Anand Sarup, CBI Trap Laying Officer (TLO)
13 PW-13 Dy. SP Joseph Krelo IO who conducted the investigation after conclusion of
trap proceedings.
VERSION OF ACCUSED
4.0 Accused, in his statement under Section 313 Cr.P.C., pleaded innocence.
4.1 He stated that he had been falsely implicated by the complainant out of
his strong grudge because of incessant efforts made by him (accused) to uphold rule of law against them in a series of cases. He stated that he had neither demanded any bribe nor instructed the complainant to put any money in any envelope. He also denied that he had ever met and interacted with complainant either on 19.07.2016 or on 20.07.2016. He claimed that complainant and his brother Pradeep were habitual offenders/criminals involved in many FIRs and they were furious at him because of the investigation conducted by him in such cases. He revealed that even Subodh Rawat, alleged scribe of complaint, had a criminal background.
CC No. 532382/2016 CBI Vs. Tilak Singh Pal (CNR NO. DLCT01-012095-2016 ) Page No. 5 of 47 4.2 He desired to lead evidence in defence and examined nine witnesses as per following details:-
1 DW-1 Chander Shekhar For proving Cell ID /Location Chart for the relevant period with respect to mobile number 9716711171 2 DW-2 Kamal Kaushal Ahlmad For proving record pertaining to FIR No. 419/10 PS Nihal Vihar 3 DW-3 Insp. Chander Shekhar For proving various complaints received at PS Nihal Vihar 4 DW-4 Satish Kumar, Jr. Judicial For proving reply filed by accused on 22.06.2016 Assistant, Record Room Sessions with respect to the bail application moved by brother of complainant and the order passed by the learned Court 5 DW-5 J. G. Moses, CFSL For proving record related to information sought under RTI Act 6 DW-6 HC Kapil For proving record related to FIR No. 215/12 PS Nangloi 7 DW-7 HC Naresh For proving certain DD Entries of PS Nihal Vihar of the relevant period 8 DW-8 HC Rakesh Kumar, Malkhana For proving date of deposit of case property in CBI ACB CBI malkhana.
9 DW-9 HC Prem Chand For proving record related to information sought under RTI Act RIVAL CONTENTIONS
5.0 Sh. Rao has contended that prosecution is required to prove its case beyond reasonable doubt and not beyond all doubts. He supplements that in the present case, the crucial aspects related to motive, demand and acceptance stand duly proved. He has strongly relied upon the oral testimony of complainant as well as other witnesses besides the electronic evidence which clearly indicates the demand of bribe on the part of accused.
CC No. 532382/2016 CBI Vs. Tilak Singh Pal (CNR NO. DLCT01-012095-2016 ) Page No. 6 of 47 5.1 Sh. Rao does admit that as per the evidence surfaced during the trial, complainant seemed to have visited CBI office on 18.07.2016 as well but since he could not meet any CBI official that day, nothing happened on 18.07.2016 and eventually, he went to CBI office on 19.07.2016 when the verification proceedings were carried out. He does admit that independent witness Ved Prakash claimed that he had accompanied the verifying officer and complainant to PS Nihal Vihar on 18.07.2016 itself which was never the case of CBI but also quickly adds that such utterances of Ved Prakash do not cause any adverse impact.
5.2 He contends that no case would ever be foolproof and there would be minor contradictions and inconsistencies in any criminal case and such deviations or inconsistencies should not be given any weightage. He has contended there is no reference of visit dated 18.07.2016 in the charge-sheet simply due to the fact that FIR had been registered on 19.07.2016 and the subsequent IO did not give much significance to such earlier visit which, if admitted, did not reveal anything concrete either way. According to him, omission on said aspect cannot make the entire story untrue. He has also argued that there was never any chance or occasion of tampering with the electronic evidence and the forensic reports also clearly indicate towards the complicity of accused.
5.3 All such contentions have been refuted and resisted by defence.
5.4 Sh. Yogesh Verma, learned defence counsel has vehemently contended that prosecution has not come up with complete facts and has purposely tried to suppress the alleged incident dated 18.07.2016 which makes the genesis of the case absolutely distrustful. According to him, initial demand dated 18.07.2016 does not stand proved at all. He has also contended that verification proceedings are unreliable and the version of prosecution witnesses clearly indicate that many CC No. 532382/2016 CBI Vs. Tilak Singh Pal (CNR NO. DLCT01-012095-2016 ) Page No. 7 of 47 important documents were got signed ante-dated which smacks of malafide.
5.5 He has also hugely relied upon record related to call details. He has drawn attention of the Court towards Cell ID/location of such caller which, according to him, clearly indicates that CBI case is artificial and concocted one and there was no chance of witnesses being together as projected in challan.
5.6 It has been argued that there is no recovery from the possession of accused and that he never had any conversation with the complainant on any of the dates i.e. 18.07.2016, 19.07.2016 & 20.07.2016. He has also raised questions about the manner in which the transcription was prepared and about its credibility.
5.7 According to him, PW10 Ved Prakash and PW11 Abhinav Singh, alleged independent witnesses, were rather stock witnesses of CBI and, therefore, their deposition does not carry much value. It has also been supplemented that there was no motive for accused to have made any demand as bail application had already been dismissed by learned court and, therefore, accused was left with no reason to make any demand of bribe. While referring to various contradictions appearing in the testimony of prosecution witnesses, he has asserted that there are inherent fatal weaknesses in the case of CBI. He has also challenged the sanctity of electronic evidence claiming that no reliance could be placed upon the same.
5.8 Comprehensive written submissions have also been placed on record by defence.
5.9 Both the sides have placed their reliance upon various precedents which I would advert to at appropriate places.
CC No. 532382/2016 CBI Vs. Tilak Singh Pal (CNR NO. DLCT01-012095-2016 ) Page No. 8 of 47 EVALUATION OF EVIDENCE 6.0. I have given my thoughtful consideration to the rival contentions and perused the entire material available on record in the backdrop of the aforesaid contentions made at the bar.
6.1. I would be evaluating the evidence under various heads. The crucial aspects would be the alleged visit dated 18.07.2016, ingredient of demand, manner of verification and spot transaction.
MYSTERY BEHIND VISIT DATED 18.7.2016 7.0 It is very much evident from the case set up by the investigating agency that it learnt about the complaint for the first time on 19.7.2016 only.
7.1 Complaint of Sh. Parveen has been proved as Ex. PW 1/A (D-3). It bears date as 19.7.2016 on the right-top corner. Such complaint was referred for verification to SI Manish by the concerned Superintendent of Police who appended date below his signature while assigning the verification job to SI Manish. There is some overwriting at such portion. According to Ld. defence counsel, the date was originally mentioned as 18.7.2016 but it has been modified with some ulterior motive and CBI has tried to project as if the complainant had reported to CBI for the first time on 19.11.2016 only. According to Sh. Verma, there is ample evidence on record to show that complainant had come to CBI office on 18.7.2016. So much so, according to defence, the alleged verification aspect was also taken up on 18 th itself and the verifying officer along with complainant, Mr. Subodh and independent witness Mr. Ved Prakash had even gone to Police Station Nihal Vihar. He has, therefore, stressed that on the point of critical suppression of such fact, the entire case should be discarded right away as the whole genesis and the origin of the case becomes untrue CC No. 532382/2016 CBI Vs. Tilak Singh Pal (CNR NO. DLCT01-012095-2016 ) Page No. 9 of 47 and suspicious.
7.2 Let me now refer to the testimony of relevant witnesses on said aspect.
7.3 Sh. G. Bairwa was Superintendent of Police, CBI ACB, New Delhi at the relevant time. He had endorsed the aforesaid complaint for verification to SI Manish and he would have been the best witness to clarify about the aforesaid overwriting or the alleged interpolation. Surprisingly, CBI has not bothered to cite him as witness in the list of witnesses.
7.4 Let me now come to the testimony of verifying officer on said limited aspect.
7.5 PW-2 SI Manish has deposed that he was entrusted with the verification of complaint on 19.7.2016. In his entire examination-in-chief and cross-examination as conducted by CBI, he did not make even a whisper regarding any incident or event having taken place on 18.7.2016. In his cross-examination conducted by defence, he did admit that he was having mobile No. 9990074420. He claimed that he never met complainant before 19.7.2016 but supplemented that he had a telephonic conversation with him on 18.7.2016 in the evening. He claimed that he had received oral directions from his office and learnt that the proposed complainant visited CBI office on 18.7.2016 and it was in that context that there were telephonic calls between him and complainant on 18.7.2016. He, however, could not clarify as to who was that officer who told him to talk to complainant. Since he had been confronted with CDR of his mobile record (Ex. PX-2), he could not challenge the details of the calls appearing in such record and admitted that there was communication between him and complainant at 5.15 PM, 5.20 PM, 5.22 PM, 5.57 PM, 5.58 PM, 6.03 PM, 7.46 PM, 8.40 PM, 8.42 PM, 8.47 PM. Though he admitted that there was telephonic conversation between him and complainant, he out-rightly CC No. 532382/2016 CBI Vs. Tilak Singh Pal (CNR NO. DLCT01-012095-2016 ) Page No. 10 of 47 denied having met him on 18.7.2016. He also deposed that he never visited anywhere along with complainant on 18.7.2016. He denied that he had gone to police station Nihal Vihar along with complainant, Subodh and Ved Prakash that evening. A suggestion was put to him that he had intentionally concealed his such visit dated 18.7.2016 to police station Nihal Vihar but he labelled such suggestion as false and incorrect.
7.6 PW-7 Parveen (complainant) claimed in his examination in chief itself that he had visited CBI office along with his uncle Subodh Rawat on 18.7.2016 but nobody met them in CBI office that day. In his further deposition, he claimed that on 18.7.2016, duty officer was met at CBI office who asked them to come next day. He claimed that he himself was not allowed to go inside CBI office and rather his uncle Subodh Rawat had gone inside and told him, after return, that there was no one in the office and that they were required to come next day. He claimed that he did not know whether his uncle met any CBI official other than duty officer on 18.7.2016 or not. Surprisingly, he denied that on 18.7.2016 he had talked to SI Manish on his mobile 10 times between 5 to 9 PM. He also denied that he and his uncle Sh. Subodh had remained in CBI office on 18.7.2016 from 12 noon to 4 PM and also denied that he along with Subodh Rawat, independent witness Ved Prakash and SI Manish had gone to police station Nihal Vihar in the evening of 18.7.2016.
7.7 PW-1 Subodh Rawat has deposed that he had written complaint on the dictation of the complainant (Ex. PW 1/A) on 19.7.2016. In his entire examination-in- chief, he did not depose going to CBI office on 18.7.2016. He rather claimed he along with Praveen gone to CBI office on 19.7.2016 where they met duty officer who sent them to one Superintendent of Police and then Superintendent of Police discussed the matter with them and then they met SI Manish. He claimed that nothing else had happened in his presence on 19.7.2016. He also claimed that he did not go to CBI office thereafter. However, when he was cross-examined by defence, he did admit CC No. 532382/2016 CBI Vs. Tilak Singh Pal (CNR NO. DLCT01-012095-2016 ) Page No. 11 of 47 that he had gone to CBI office on 18.7.2016 but they returned back since they did not met anyone in CBI office. According to him, they had reached CBI office at 11.53 AM and stayed there for half an hour. He, however, does not recall as to when they left CBI office. Thus, his testimony does not indicate that he had met anyone in CBI office on 18.7.2016.
7.8 Let me now come to the testimony of PW-10 Ved Prakash.
7.9 His testimony bears significance as he is the independent and neutral witness. In his entire examination-in-chief, he, too, did not mention anything related to any event of 18.7.2016. He claimed that he had reached the office of CBI on 19.7.2016 where he met SI Manish and then he was shown complaint made by Sh. Praveen. When he was grilled by defence, he admitted that he had gone to CBI office on 18.7.2016 also at about 2 PM and remained in CBI office for 3-4 hours. He also met SI Manish for 15-20 minutes. So much so he admitted that on 18.7.2016, he had gone to police station Nihal Vihar along with complainant Parveen, Subodh and SI Manish. He admitted that they had left CBI office at 3.30 PM on 18.7.2016 and reached police station Nihal Vihar at 8 PM and remained there for 15 minutes. He claimed that they did not sign any document on 18.7.2016 and his statement was also not recorded on 18.7.2016. According to him, he was shown complaint on 18.7.2016 before they started for police station Nihal Vihar. He claimed that complaint Ex. PW 1/A was the same complaint which was shown to him on 18.7.2016 supplementing that there was one more complaint of 19.7.2016. He claimed that on 18.7.2016, he was not apprised about the functioning of DVR but DVR was put in the pocket of complainant in 'on condition'. He claimed that he and complainant went inside the police station and met the accused on 18.7.2016. According to him, at that time DVR was on and even the conversation was recorded in such DVR on that day, i.e. 18.7.2016. Such DVR was checked when they returned to CBI office but it could not be played as there was some virus. He claimed that no document to that effect CC No. 532382/2016 CBI Vs. Tilak Singh Pal (CNR NO. DLCT01-012095-2016 ) Page No. 12 of 47 was prepared by SI Manish and he did not sign anywhere on 18.7.2016. He admitted that there was no reference about visit dated 18.7.2016 in his statement mark PW 10/1. However, his volunteered portion is important. He categorically claimed in such volunteered portion that CBI had told him to forget about the incident dated 18.7.2016 as nothing could be recorded that day.
7.10 Ld. Prosecutor did the next best thing. In view of the aforesaid revelation made by Sh. Ved Prakash (PW-10) he sought permission of the court to re-examine the witness. Such permission was granted. In such re-examination, Ved Prakash claimed that it was wrong to suggest that he had never gone to police station Nihal Vihar with complainant on 18.7.2016 or that he never met accused on 18.7.2016 or that complainant was never given any DVR for recording the conversation on 18.7.2016.
7.11 Aforesaid discussion would denote that CBI tried to hold back some events related to 18.07.2016 which it should not have. I would assess its impact later.
FACTUM OF INITIAL DEMAND AND VERIFICATION 8.0 Sh. Yogesh Verma, Ld. defence counsel has vehemently contended that aspect related to initial demand is very crucial and decisive and in the case in hand, there is no material which may even remotely demonstrate that there was any demand either on 18.7.2016 or on 19.7.2016.
8.1 He has claimed that it is also not clear as to on which particular date, the alleged demand was reduced from Rs. 1,00,000/- to Rs. 80,000/-. He has argued that as per allegations made in complaint Ex. PW 1/A, complainant had allegedly met accused at police station Nihal Vihar on 18.7.2016 and accused had then demanded a sum of Rs. 1,00,000/- from him but when complainant expressed his financial CC No. 532382/2016 CBI Vs. Tilak Singh Pal (CNR NO. DLCT01-012095-2016 ) Page No. 13 of 47 compulsion, the accused reduced the demand to Rs. 80,000/-. According to him, if at all, the demand had been reduced to Rs. 80,000/- already on 18.7.2016, there was no reason for accused to have again asked for a sum of Rs. 1,00,000/- and then again reducing it to Rs. 80,000/- as has been projected by CBI if the alleged verification conducted on 19.7.2016 is to be believed. He has claimed that written complaint does not indicate as to when exactly, the complainant had met accused at police station and, therefore, there is inherent weakness in the case of prosecution.
8.2 Let me consider said aspects in detail.
8.3 PW-7 Sh. Parveen has deposed that on 19.7.2016, he had gone to CBI office where he was introduced to Sh. Manish and then to Sh. Ved Prakash. He revealed in CBI office that he had written in the complaint that initially accused was demanding Rs.1,00,000/- and subsequently it was reduced to Rs. 80,000/-. Thereafter, he along with Ved Prakash and SI Manish left CBI office for police station Nihal Vihar and reached there at about 7 PM. Recording device was put in front pocket of his shirt in "ON" position. He, initially, made two calls to the mobile of the accused which he did not pick up. He came out of PS Nihal Vihar. Later, he again went inside police station Nihal Vihar along with Sh. Ved Prakash when he was able to meet accused. He talked to him about the bail of his brother and then accused made demand of Rs. 1,00,000/- and after negotiation, the amount was settled at Rs. 80,000/- and then he told accused that he would arrange the money and would come next day. He claimed that recording device was taken back from him by CBI official and the conversation was heard in CBI office which indicated such demand of money.
8.4 PW-10 Ved Prakash has deposed that he along with complainant went inside police station Nihal Vihar at 8.15 PM on 19.7.2016. SI Tilak Singh Pal was found sitting on the chair who had come from a temple and gave Prasad to them.
CC No. 532382/2016 CBI Vs. Tilak Singh Pal (CNR NO. DLCT01-012095-2016 ) Page No. 14 of 47 However, the subsequent testimony of PW-10 Ved Prakash is not of much significance on said aspect as he claimed that complainant and accused came out side in verandah and started talking to each other and, therefore, he could not hear their voices. They then returned to CBI office where recorded conversation was heard. PW-10 Ved Prakash, nowhere, claimed before the court that such recording established that there was a demand. He also does not say that complainant had informed him that accused had demanded any such bribe from him on 19.7.2016 when he was taken out to verandah. PW-10 Ved Prakash claimed that the recorded conversation was partially heard by him. He did not make himself clear as to what he meant by the same.
8.5 PW-2 SI Manish has deposed that Superintendent of Police, CBI had introduced him to complainant Parveen and Subodh Kumar and he was given complaint Ex. PW 1/A for verification. He then secured the presence of independent witness Sh. Ved Prakash. He then deposed about the aspect related to DVR and the manner in which conversation was to be recorded in such DVR. They left CBI office at 5.40 PM and reached police station Nihal Vihar at about 7.40 PM. Complainant was directed to go inside police station and independent witness was instructed to accompany him. After 10 minutes, complainant and independent witness came back and DVR was taken back. Complainant, at that point of time, told that accused was not present in the police station and that he was not picking up his calls either. After waiting for 30 minutes, complainant and Ved Prakash were asked to go inside the police station again. They came back after 25 minutes and complainant was asked to narrate the incident and then he told that he met SI Tilak Singh Pal who discussed the matter regarding bail of his brother and demanded Rs. 80,000/- for getting his brother out on bail. Tilak Singh Pal also asked complainant that he should file bail application after filing of charge sheet. They returned to CBI office and heard the recorded conversation in the presence of independent witness with the help of laptop and such conversation also confirmed that there was a demand of Rs. 80,000/- from CC No. 532382/2016 CBI Vs. Tilak Singh Pal (CNR NO. DLCT01-012095-2016 ) Page No. 15 of 47 the complainant.
8.6 Sh. Verma has contended that if SI Manish is to be believed, then complainant, after return, from police station told them about the demand outside the PS itself and such demand was also heard by all concerned when the recorded conversation was played in CBI office. He has contended that independent witness was all along with CBI team and it is indeed perplexing as to how such independent witness could not hear any such thing at all. He has, therefore, contended that prosecution case is liable to be discarded due to the aforesaid mismatched version of the witnesses and it has to be necessarily inferred that a false story has been cooked up.
8.7 Undoubtedly, the independent witness has not thrown desired light on some aspects and his version does not seem to be in full synchronization with the case set up by CBI but that by itself would not mean that testimony of PW10 Sh. Ved Prakash is liable to be rejected completely. He has categorically affirmed that on 19.07.2016, he had gone inside the police station along with the complainant. He also claimed that the conversation was recorded in the DVR and such conversation was played when they returned to CBI office.
8.8 Moreover, I have no reason to disbelieve the version of PW7 Sh. Parveen who manifestly claimed that on 19.07.2016, he went inside the Police Station Nihal Vihar and met accused. At that time, independent witness Sh. Ved Prakash was also with them. He has also categorically deposed that when he talked to accused about the bail of his brother, accused made demand of Rs. 1 lac which was settled as Rs. 80,000/- after negotiation.
CC No. 532382/2016 CBI Vs. Tilak Singh Pal (CNR NO. DLCT01-012095-2016 ) Page No. 16 of 47 8.9 Sh. Verma has expressed his astonishment as to where was the need of negotiation as according to him, even as per the bare allegations appearing in the complaint, the negotiation had already taken place and the amount had already been allegedly reduced to Rs. 80,000/- from Rs. 1 lac and, therefore, there was no occasion or reason to have gone for another round of negotiation. It may look little curious but it does not create any major crack in the case of CBI.
8.10 I have heard the conversation recorded in Q-1 and I have also seen the transcription of such conversation which is contained in D-16. The details of files contained in Q1 are as under:-
Name of Audio Recorded Duration (Approx.) Contents
File conversation
marked as
160719_1613 -- 16 sec Declaration by witness
160719_1946 -- 11 min 29 sec Not relevant as it does not seem to
contain voice of accused
160719_2030 Q-1 (1) 22 min 29 sec Spot conversation
8.11 Conversation contained in audio file 160719_2030 is crucial. It indicates
that such verification had taken place on a Tuesday because accused had offered "Prasad" to complainant claiming that it was a day of Hanuman Ji. As per calendar also, 19.07.2016 is found to be a Tuesday and, therefore, it seems quite apparent that said conversation took place on 19.07.2016 only. Such conversation also reflects that complainant Praveen himself had made request to accused to come outside which goes on to corroborate the version of Sh. Ved Prakash who could not hear the conversation as complainant and accused had gone out of the room. It seems that complainant took him out as he felt that else accused would not open up in the presence of third person. Such conversation shows that there was constant request from the side of complainant to reduce the demanded amount. Accused CC No. 532382/2016 CBI Vs. Tilak Singh Pal (CNR NO. DLCT01-012095-2016 ) Page No. 17 of 47 reminded the complainant as to what he had agreed to yesterday and then supplemented that he (accused) had asked for one (Rs. 1 lac) and complainant wanted to give seventy (Rs. 70,000/-) and then the amount was agreed as eighty (Rs. 80,000) (maine eek kahaa tune sattar (70) kahaa maine kahaa chal bhai bich ki baat his assi (8) teri jubaan pe tha na....). It confirms about the meeting between accused and complainant on previous day. Then complainant exclaimed whether he (accused) would take full eighty (poore assi loge sir) and complainant then again asked for some concession and told that he would bring sixty on which accused claimed that he had already reduced substantially and asked him not to insist for further reduction (eek eek ki itana se tere wo kar diya aur ab itna wo mat karaa kar mere se). In later part of the conversation, when complainant made another request to reduce the amount, accused claimed that it would be eighty only and nothing less or nothing more (assi aur ek ka isse jayada na kam). Complainant kept on insisting for reduction of the amount but accused did not agree for any further reduction and when complainant claimed that instead of Rs. 1 lac, he would make payment of Rs. 70,000/-, accused again claimed why he was trying to further negotiate when he had already said eighty (assi ki baat ho gai to ho gai ya tu kyun...). Further conversation indicates that accused claimed that there was no difference between seventy and eighty by saying "jaise 70 waise 80 ek hi baat hai".
8.12 I have seen the transcription which bears signatures of complainant Sh. Praveen, independent witnesses Sh. Ved Prakash & Sh. Abhinav Singh besides CBI Officials and HC Manoj Kumar, PS Nihal Vihar. The portion attributed to accused has been proved as A-1 to A-37 on such transcription.
8.13 Memory card containing such conversation was played during the trial and complainant Sh. Praveen identified his voice as well as voice of accused. He claimed that voices as attributed to him and voices as attributed to accused were correctly mentioned in such transcription. He claimed that such transcription was CC No. 532382/2016 CBI Vs. Tilak Singh Pal (CNR NO. DLCT01-012095-2016 ) Page No. 18 of 47 prepared in his presence. Though he did not remember whether he had signed on such transaction but fact remains that such transcription also bears his signatures. He also admitted in cross-examination that he had gone subsequently to CBI office where he remained for two hours and that the memory card was played and he heard the conversation again. Such transcription was prepared on 10.08.2016. Sh. Verma has challenged the aspect related to preparation of transcription which I would advert to later.
8.14 Be that as it may, conversation contained in Q-1 seems very clear and specific which clearly goes on to indicate that accused had demanded bribe from complainant. It also indicates that there were repeated requests from the side of complainant to reduce the bribe amount but accused remained adamant and insisted for Rs. 80,000/-.
8.15 Sh. Verma has strenuously contended that the verification proceedings are unreliable and should not be given any credence. He has claimed that it is not clear as to when exactly the proceedings related to verification was started by SI Manish and why SI Manish prepared any document and obtained thumb impression of complainant Parveen on the same even before the initiation of verification process. He has also claimed that, usually, for the purpose of verification, a call is made to the suspect official but in the present case, instead of making a call, CBI official thought of going to the spot. According to him, CBI goes to spot only when it decides to lay trap and their such visit indicates that some event had actually taken place on 18.7.2016 which was deliberately expunged from the record. He has expressed his suspicion as to why the verification proceedings were signed by independent witness Ved Prakash on 20.7.2016 when it had been allegedly prepared on 19.7.2016. He has, therefore, stressed that no significance should be given to such verification memo (Ex. PW 2/A) which was ante-signed by independent witness. Sh. Verma has contended that as per the prosecution case, proceedings of CC No. 532382/2016 CBI Vs. Tilak Singh Pal (CNR NO. DLCT01-012095-2016 ) Page No. 19 of 47 verification were concluded at 11.15 PM in CBI office on 19.7.2016 but the call details record (CDR) of all such witnesses would reveal that they all were not together at CBI office at 11.15 PM and had rather reached their respective homes much earlier.
8.16 I have given my thoughtful consideration to the aforesaid contentions. Suffice to comment, there would rarely be a foolproof case. Certain inconsistencies, omissions and contradictions are bound to creep in. The endeavour of the court is to find out whether because of any such inconsistency, omission or contradiction, the authenticity of the prosecution case has come under any cloud or not and whether defence of the accused has been seriously prejudiced or not. If the answer is in affirmative, then the benefit should be passed on to the accused but not otherwise. The aforesaid inconsistencies, as pointed out by defence, are too trivial to be given any importance. It really does not matter as to at what time, the verification proceedings were commenced and at what time, witnesses had reported to CBI office because human memory is not perfect and such timings may not be recalled by all concerned with complete precision and exactitude. Undoubtedly, call details record may corroborate the defence contention but fact remains that such CDR does not portray that they were not together at the most crucial juncture when the complainant and independent witness were sent inside the police station to meet suspect official and to record the conversation. Merely because, CBI officials had decided to go to the spot even for the purpose of verification would not mean that the story of the prosecution is untrue or manufactured one.
8.17 I also feel that independent witness Ved Prakash, instead of being projected as having been won over by the defence, seems a truthful witness. Instead of holding back incident of 18.7.2016, he rather, himself elaborated the same in his deposition. He admitted his signatures on various documents and supported the case of prosecution to a very large extent. Since verification was carried out at late hour of the evening, it would not matter much even if on the verification memo dated CC No. 532382/2016 CBI Vs. Tilak Singh Pal (CNR NO. DLCT01-012095-2016 ) Page No. 20 of 47 19.7.2016 Sh. Ved Prakash had put his signatures next morning.
8.18 Defence has contended that as per Section 17 of Prevention of Corruption Act, a Sub Inspector is required to take permission from the court before doing any investigation and since in the present case, no permission was sought from the court, SI Manish was not competent to do any investigation. Such argument also does not cut any ice. It is quite obvious that the investigation has been carried out as per the specific direction of Superintendent of Police. It was not initiated at the instance of SI Manish at all. PW-2 SI Manish has deposed that on 19.7.2016, he was entrusted with verification of the complaint by his Superintendent of Police Sh. G. Bairwa. He has also proved the endorsement given by Sh. Bairwa and identified his signatures. It is to be seen whether investigation has been carried out by a person authorized or not. Verification was carried out as per the specific direction of Superintendent of Police and merely because, he had deputed SI Manish to go and verify the fact would not mean that the investigation had been carried out unauthorisedly. Here, SI Manish had merely been deputed by a competent officer. There is no provision which debars delegating such act of verification. Defence cannot take any advantage from decisions given in Maha Singh Vs. State (Delhi Admn) AIR 1976 SC 449 and Sambhu Das @ Bijoy Das & Anr. Vs. State of Assam AIR 2010 SC 3300. In Maha Singh (supra), question arose whether the statement of the accused before the Inspector admitting to have received the bribe was admissible in evidence or not and it was held that any step taken or act done by the Inspector in order to detect the accused while taking the bribe would come within the term 'investigation' (as defined in old code). The proposition expounded therein is not disputed but the same is not applicable in the context of present case.
8.19 It also does not matter much if memory card (Q-1) remained with S.I. Manish and was not deposited in the malkhana immediately. As per verification memo Ex. PW 2/A (D-2), 4 GB memory card was removed from DVR and packed in CC No. 532382/2016 CBI Vs. Tilak Singh Pal (CNR NO. DLCT01-012095-2016 ) Page No. 21 of 47 a plastic case and was given number Q-1. Such plastic case was signed by complainant, independent witness and verifying officer and it was put in a white colour envelope which was sealed with brass seal and the facsimile impression of the seal was put on the memo and thereafter, seal was entrusted to independent witness Sh. Ved Prakash. Thus, CBI took enough of precaution to ensure the sanctity of the memory card (Q-1) by sealing it and giving the seal to an independent witness. In such a situation, it really did not matter even if the sealed parcel had not been deposited in the malkhana immediately.
8.20 Sh. Verma has contended that there is no evidence on record that there was only one such seal and the possibility of having multiple seals cannot be ruled out and, therefore, sealing had no significance. Such argument, being hypothetical, needs to be rejected.
POST VERIFICATION PROCEEDINGS 9.0 After the verification was done by SI Manish, Sh. G. Bairwa, SP/CB/ACB directed for registration of FIR. He went through the verification report as well as contents of complaint of Sh. Praveen and observed that a prima facie case for commission of offence under Section 7 of Prevention of Corruption Act was made out and accordingly FIR (Ex. PW7/PX) (D-1) was registered and further investigation was entrusted to Insp. Anand Sarup.
9.1 Insp. Anand Sarup has entered into witness box as PW12. He has deposed that after receiving FIR and related documents i.e. copy of complaint, copy of verification memo, he was called by SP in his chamber and then it was decided that a trap be laid against the accused. Accordingly, trap team was constituted. Presence of two independent witnesses i.e. Sh. Ved Prakash and Sh. Abhinav Singh was secured through duty officer. SI Manish was also made part of the trap team. All CC No. 532382/2016 CBI Vs. Tilak Singh Pal (CNR NO. DLCT01-012095-2016 ) Page No. 22 of 47 the trap team members were introduced to one another and purpose of assembly was explained to them. Complainant Praveen Kumar produced a sum of Rs. 70,000/- (in the denomination of 1000 each) instead of demanded money of Rs. 80,000/-. Demonstration, regarding use of phenolphthalein powder and its reaction with the solution of sodium carbonate with water, was given. The bribe amount, for said purpose, was treated with said powder and Sh. Abhinav Singh was directed to touch the treated bribe amount with his right hand finger and when he dipped his such finger in the fresh solution of sodium carbonate, solution turned pink. Sh. Abhinav Singh then put treated bribe amount in the right side pocket of trouser of complainant. Complainant was directed not to touch the same and to hand over the same to accused on his specific demand. Sh. Ved Prakash, independent witness also handed over back the CBI brass seal and DVR to him. Functionality of such DVR was explained to the complainant and shadow witness and pre-trap proceedings were concluded at about 1700 hours. Handing over memo Ex. PW2/D (D-9) was accordingly prepared.
9.2 CBI Team left for the spot at 1710 hours and reached near PS Nihal Vihar at about 2040 hours. Complainant was asked to make a call to accused to know about his whereabouts. Such call was recorded through DVR in the memory card. Accused was found to be available in the PS. 9.3 Since, complainant was wearing a shirt, which was not having any pocket, DVR was strapped on his upper left arm and complainant and shadow witness were directed to proceed to PS Nihal Vihar after the DVR was put on 'switch on' mode.
9.4 Besides TLO, PW2 SI Manish, complainant and both the independent witnesses have also graced the witness box to prove the spot proceedings. SI Dinesh, Insp. Pramod Kumar, Insp. Sanjay Upadhayay and other subordinate staff CC No. 532382/2016 CBI Vs. Tilak Singh Pal (CNR NO. DLCT01-012095-2016 ) Page No. 23 of 47 were also members of the trap team but they have not been examined by the prosecution.
9.5 As far as SI Manish is concerned, he donned twin hats. Besides being verifying officer, he was also member of the trap team.
9.6 PW2 SI Manish did mention that he was made part of the trap team and also corroborated TLO with respect to the aspects related to handing-over proceedings. He deposed that they reached near PS Nihal Vihar and then TLO instructed complainant and shadow witness who then proceeded inside the police station to meet accused Tilak Singh Pal. DVR has already been put on recording mode. According to him, shadow witness made a call to TLO after 10-15 minutes and alerted him and then the entire team along with independent witness reached inside PS Nihal Vihar and then independent witness informed them that accused had directed the complainant to keep the bribe amount in a bag inside the room. However, while deposing further, he could not give proper answers and, therefore, learned prosecutor sought permission to cross-examine him as witness was not able to recollect and rearrange the facts sequence wise. Permission was granted to prosecution and then PW2 SI Manish made amends and supplied all the other particulars while corroborating the case set up by the prosecution.
9.7 Interestingly, when statement of PW2 SI Manish was recorded under Section 161 Cr.P.C. (Ex. PW2/DA), after making elaborate reference about the verification proceedings conducted on 19.7.2016, he claimed therein that he was made part of the trap team and remained associated with the proceedings of the trap. However, he did not mention as to what had actually happened and transpired at the spot in his such statement. In his deposition dated 03.11.2017, he admitted that the events and developments, which took place on 20.07.2016, are not mentioned in his such statement Ex. PW2/DA. He, however, denied that since he was not part of the CC No. 532382/2016 CBI Vs. Tilak Singh Pal (CNR NO. DLCT01-012095-2016 ) Page No. 24 of 47 raiding team, no such event was mentioned by him in his statement Ex. PW2/DA. It is little perplexing as to why all the requisite details and events, which took place at the spot, were not mentioned by SI Manish in his statement under Section 161 Cr.P.C. but that by itself would not tantamount to hold that SI Manish had not gone to the spot at all. However, simultaneously, it would put the Court on guard and, therefore, testimony of the remaining witnesses is required to be evaluated with extra precision and caution.
9.8 Let me now switch over to the testimony of complainant and shadow witness and see as to what they have to offer about the bribe transaction.
SPOT INCIDENT 10.0 PW-7 Parveen, while corroborating TLO on initial aspects, deposed that they left CBI office in Tavera vehicle for the spot and took position near the police station. Recording device had been tied on his left hand. He made a call to accused who responded that he was inside the police station. TLO had told him to give him a missed call when accused accepted the money or directed the money to be given to someone else. He and Ved Prakash went inside the police station. Accused was found standing near the parking and waiting for him. He wished him and discussed the matter and then accused enquired from him whether he had brought the money. He (PW-7) tried to give money on which accused directed him to keep with him and further directed him to put the same in the 'black colour envelope' which was hanging in the room. He put the same in the said envelope and came back to the parking where accused was standing. At that time, Ved Prakash was also standing beside him. There was a discussion with the accused about the bail matter on which accused told that he would file the charge sheet and then bail application be filed. Accused told him that he had brought Rs. 70,000/- only which did not please CC No. 532382/2016 CBI Vs. Tilak Singh Pal (CNR NO. DLCT01-012095-2016 ) Page No. 25 of 47 accused. Then he (PW7) requested for some more time to make the balance payment. He then asked the accused to return the blank signed papers. Accused told that he would return them later but on his request, accused went inside his room to take out such papers. Finding opportunity, PW-7 Parveen then instructed Ved Prakash to give missed call to CBI official.
10.1 As per his further deposition, CBI officials reached inside the police station and made enquiry from him (PW7) and then he told CBI about the aforesaid events. Then they all went to the room of accused. Recording device was taken back from him and switched off. Money was recovered through Abhinav (independent witness). Wash of the envelope, from which the money had been recovered, was taken and the solution turned pink. Such solution was poured in the bottle which was sealed by the CBI officials. In CBI office, recording was played and heard by him as well as other persons. Thereafter, memory card was sealed and other proceedings were also carried out. He also identified his signatures on recovery memo Ex. PW 2/E (D-8). The conversation, which was contained in the memory card (Q-2), was also played and PW-7 Parveen identified his voice as well as voice of the accused and claimed that transcription was as per the conversation so recorded therein. The currency notes were also produced before the court and PW-7 identified the same as Ex. P-3 collectively. He also deposed that he had gone to CBI office later on also during the time of voice identification and proved the voice identification-cum- transcription memo as Ex. PW 6/C (D-16).
10.2 Let me now see as to what PW-10 Ved Prakash has to offer in this regard.
10.3 As per him, they both (him and complainant) went inside the police station. Accused met them near the place where old vehicles were lying parked. Then, accused took complainant to a room which was adjoining to his room. After CC No. 532382/2016 CBI Vs. Tilak Singh Pal (CNR NO. DLCT01-012095-2016 ) Page No. 26 of 47 few minutes accused and complainant came out and then accused went towards his room. Complainant then told him that he had put money in a paper bag as asked by the accused and then complainant also went to the room of accused. PW-10 Ved Prakash then gave a missed call from his mobile to TLO and within a minute, TLO and other members came near to him. He told them about the information given by complainant and told them that accused was in his room. They went to the room of accused when he was apprehended by two inspectors and was brought to the adjoining room where complainant pointed towards the bag hanging from nail on a wall. Abhinav Singh took out the bag from nail, took out the money from the bag and then the numbers were tallied and memo Ex. PW 2/E was prepared. He also deposed about the aspect related to taking of wash of such paper bag. He identified the bribe money as well as the bottle containing paper bag wash.
10.4 As per the case of the prosecution, accused had directed the complainant to put the bribe amount in a bag. Such paper bag has been described differently by different witnesses. It has been claimed as 'envelope' by the complainant whereas according to PW-11 Abhinav Singh and shadow witness it was 'bag'. PW-7 Parveen claimed it to be of black colour. PW-10 Ved Prakash did not specify about the colour of such bag or envelope.
10.5 When PW-10 Ved Prakash was in the witness box, it was shown to him. It was found to be a paper carry bag on which words "ARROW USA 1851" were found mentioned and it was of 'dark blue colour'. Ved Prakash identified the same. Such carry bag was exhibited as Ex. PW 10/C. It is also important to mention that as per the court observation, such carry bag was having a hole of 1 to 1 ½ inch on one side and the bottom of carry bag was also having a narrow long opening of 4 inches.
10.6 Right here, I would like to highlight one omission on the part of prosecution. Such bag was not shown to PW-7 complainant during the trial. Since the CC No. 532382/2016 CBI Vs. Tilak Singh Pal (CNR NO. DLCT01-012095-2016 ) Page No. 27 of 47 money had been allegedly put in such carry bag/paper bag by none other than the complainant, the prosecution should have shown such paper bag to him. No necessity was felt in this regard.
10.7 Moreover, there is not complete synchronization amongst the version of witnesses.
10.8 PW-7 Parveen has claimed that he went alone inside the room and put the money in a black colour envelope, and returned to the parking where accused and Ved Prakash were standing. Thereafter, accused went inside and then complainant got time to share the development with shadow witness Ved Prakash who then gave a missed call to CBI officials. CBI officials immediately reached there and made enquiry as to what had happened. Then complainant (PW-7) told CBI officials the aforesaid development.
10.9 Ideally the version of shadow witness should have been the same. However as already noticed above, PW-10 Ved Prakash has come up with a different version. According to him, when they met accused near the parking area, accused took complainant to a room which was adjoining to his room and thereafter they both came out. PW-10 Ved Prakash then gave a missed call to TLO. CBI officials rushed in and shadow witness Ved Prakash gave first information to TLO as at that time complainant was not in the parking area. As discussed above, if PW-7 is to be believed then he himself had apprised about the aforesaid development to CBI in the parking area.
10.10 PW-11 Abhinav Singh, recovery witness is also an important witness. He claimed that they had taken position outside the police station and was waiting for signal of the complainant. When they did not receive any signal from the complainant, Inspector Sanjay called the other team members to ascertain the status CC No. 532382/2016 CBI Vs. Tilak Singh Pal (CNR NO. DLCT01-012095-2016 ) Page No. 28 of 47 and then they were asked to come inside. Such version of independent recovery witness is not in synchronization with the version of independent witness Ved Prakash who has categorically claimed that he had given a missed call to TLO. Site plan would show that any moment of any trap team member outside PS would be visible to such other members as well. When they rushed inside the police station, they saw accused had already been apprehended and complainant informed that he had put the money in another room and then he was asked to recover the money from that bag which he did. Thus, PW-11 Abhinav Singh was late in arriving at the spot and by the time he reached inside the police station, accused had already been apprehended.
10.11 Let me now come to the version of PW-12 Inspector Anand Swaroop, TLO on said aspect.
10.12 He deposed that a call was received by him from the mobile phone of shadow witness who confirmed that the accused had demanded bribe amount and the same was put by the complainant in a paper bag hanging on wall of the room to Inspector ATO. I take a little pause here. As per Ved Prakash, he had merely given a missed call to TLO but TLO has something else to offer. According to him, the call went through and he was apprised about the entire development during such mobile conversation itself. Their versions are thus incompatible and differing. TLO, then, alerted all other team members and rushed inside the police station along with other independent witness. Such other independent witness is none other than Abhinav who has, as already noted, come up with a different version. It is, thus, difficult to read even the testimony of Abhinav Singh and TLO harmoniously. TLO deposed that complainant was found standing outside room of accused. He never claimed that he had met shadow witness Ved Prakash whereas as per shadow witness, he himself had briefed TLO. TLO further deposed about recovery of money. He also deposed about the enquiry which he had made from the accused, the narration given by the CC No. 532382/2016 CBI Vs. Tilak Singh Pal (CNR NO. DLCT01-012095-2016 ) Page No. 29 of 47 complainant as regards the sequence of events, preparing of fresh solution of sodium carbonate and obtaining wash of inner side of such paper bag. He also proved site plan as Ex. PW 8/DA and identified the GC notes, paper bag, memory card, paper bag wash and DVR (Ex. P-3).
10.13 As per the case of prosecution, notes were allegedly put in a paper bag which was hanging in the room of Inspector/ATO. In such a situation, the prosecution should have also contacted such Inspector/ATO during the investigation and should have cited him as a witness in order to clearly show that though money had been recovered from his room, he had no connection with such money. For the reasons best known to investigating agency neither such Inspector ATO was contacted nor cited as a witness. If there was no inspector/ATO posted in PS Nihal Vihar at the relevant time, it should have been apprised as to who was using that room.
10.14 It is also not at all clear as to where the notes were actually tallied. PW- 11 Abhinav had recovered the tainted money from the adjoining room. For the reasons best known to TLO, he directed Abhinav Singh to keep such tainted money in his pocket. PW-11 also claimed that such notes were not tallied and seized at the spot and rather these were seized and tallied later on in the CBI office which is not in synchronization with the case of prosecution. According to recovery memo Ex. PW 2/E (D-8), the recovered bribe amount was tallied at the spot and thereafter such bribe amount was kept in a yellow colour envelope and was seized at the spot itself and such sealed envelope was also signed by independent witnesses at the spot. However, PW-11 Abhinav Singh has deposed to the contrary. It would have been better if some other senior official of police station Nihal Vihar, present in the police station at the relevant time, had also been made a witness. It has come on record that when accused was apprehended from his room, two more officials of police station Nihal Vihar were sitting with him. They have not been made witnesses either.
CC No. 532382/2016 CBI Vs. Tilak Singh Pal (CNR NO. DLCT01-012095-2016 ) Page No. 30 of 47 10.15 PW-11 Abhinav has deposed that proceedings like obtaining signatures of witnesses, sealing of the case property had been done at CBI office and even seals on the bottle were put in CBI office which also creates a little doubt in the mind of the court and it is not at all clear as to where these crucial recovery proceedings were carried out and completed.
10.16 It will be appropriate right here to discuss the utterances appearing in spot conversation.
10.17 Memory card Q-2 was produced before the Court during the trial and was played. It contains following files:-
Name of Audio Recorded Duration (Approx.) Contents
File conversation
marked as
160720_1819 -- 16 sec Introduction of witness
160720_1819_01 -- 13 sec Introduction of witness
160720_2042 Q-2 (1) 49 sec Telephonic recovered conversation
160720_2043 Q-2 (2) 16 min 14 sec Spot conversation
10.18 Relevant spot conversation is found contained in File No. 160720_2043
(Q-2(2) which is of 16 minutes 14 seconds duration. I would also like to highlight that such file-name itself indicates that the file was generated on 20.07.2016 at 8.30 PM. The actual conversation contained in said file Q2 (2) starts after 8 minutes and 27 seconds approximately. Accused asked as to why he was restless to which complainant replied that he had come to merely meet him. After a short conversation, accused again asked whether he (Praveen) had brought 'one' He must be referring to the bribe amount of Rs. 1 lac. Complainant remarked that it was difficult for him to CC No. 532382/2016 CBI Vs. Tilak Singh Pal (CNR NO. DLCT01-012095-2016 ) Page No. 31 of 47 arrange for the money by claiming ek......ek me maro kay bhai sahib. Badi muskil ho rahi hai. The crucial conversation immediately thereafter is not fully audible and there are few words here and there which according to learned prosecutor convey the message that accused had directed the complainant to put the money in a bag which was hanging inside the room. Despite hearing such particular piece of conversation for umpteen times, there was not enough of clarity though it indeed was suggestive of the fact that accused had informed the complainant to go inside and he also referred about one hanging bag. It is not clear as to in what manner, such room was described and how complainant was able to reach such room without sufficient hint. Though transcription would suggest that after return, complainant told the accused that he had kept the money by uttering "rakh diye sir" but said sentence is not at all audible in Q2. Subsequent conversation indicates that complainant demanded papers from accused which accused was not willing to hand over that day. During further conversation, complainant also informed the accused that he had put sattar (70) to which accused asked as to why seventy only. He also claimed that the question of bail was still pending (abhi jamanat latki hi hai). Further conversation also shows that complainant then indicates towards one person (presumably shadow witness) claiming that paper be returned else that person would become angry. Fact remains that shadow witness has not said anything of that kind. He is conspicuously silent about hearing any such conversation between complainant and accused or for that matter being present within audible distance during that period. It is also apparent that the transcription abruptly comes to an end whereas the recorded conversation contained further pieces of conversation between complainant and accused and includes the events related to arrival of CBI team inside the police station as well as about the arrival of independent witness.
10.19 As per the specific case of prosecution, money was never accepted by accused with his own hands and rather he had directed the complainant to put the money in a particular bag. Precisely for said reason, wash of the hands of accused CC No. 532382/2016 CBI Vs. Tilak Singh Pal (CNR NO. DLCT01-012095-2016 ) Page No. 32 of 47 was not taken. However, it is not made clear by prosecution as to why, that being so, PW10 Ved Prakash claimed in his statement under Section 161 Cr.P.C. (Mark PW10/1) that the amount in such bag had been kept by the accused. He was duly confronted with the relevant portion of his such statement during the cross- examination but he offered no explanation about the aforesaid incongruous fact. He also claimed that he himself did not see the complainant coming out of the room of ATO/Inspector. Surprisingly, according to PW10 Ved Prakash, Subodh Rawat (PW1) was also present with them all along on 20.07.2016. No other CBI official claimed that PW1 Subodh Rawat was with them on 20.07.2016. Even Subodh Rawat himself did not claim that he had gone to CBI office on 20.07.2016.
10.20 Such utterance of PW10 Ved Prakash cannot be digested in a casual manner and it goes on to show that CBI did not portray the entire story of that day in authentic manner.
PREPARATION OF TRANSCRIPTION 11.0 As per the case of prosecution, transcription was prepared on 10.08.2016.
11.1 Transcription memo has been proved as Ex. PW6/C (D-16) and it bears signatures of Sh. Joseph Krelo (IO), Praveen, Ved Prakash, Abhinav Singh, SI Manish and HC Manoj Kumar. As per memo, the proceedings started at 10.15 AM and ended at about 5.00 PM. Logically, during the entire such period, all the witnesses must be there in CBI office. PW1 Subodh Singh is though not a signatory to said memo yet, he claimed in his cross-examination that he had also reached CBI office on 10.08.2016 at about 12.00 noon and waited outside for about 15 minutes and thereafter they were called one by one and he remained in CBI office for about 3-4 minutes and then he and Praveen left CBI office together.
CC No. 532382/2016 CBI Vs. Tilak Singh Pal (CNR NO. DLCT01-012095-2016 ) Page No. 33 of 47 11.2 PW2 SI Manish did not make any comment regarding any such exercise dated 10.08.2016 in his entire examination-in-chief. He was, during the cross- examination conducted by CBI, shown D-16 and after seeing the same, he simply claimed that it was bearing his signatures without elaborating anything further as to when such exercise was initiated and when it concluded. Moreover, he claimed that transcription was prepared from the investigation copy of CD by playing the same on official computer of Superintendent of Police. No such CD has been produced before the Court.
11.3 PW6 HC Manoj claimed that when he was asked to identify the voice, he told CBI that one such voice appeared to be of accused Tilak Singh Pal but he was not sure. He claimed that he did not remember as to how many cassettes were played and heard by him during that day. When the conversation contained in memory cards Q1 & Q2 was played during the trial, he failed to identify the voice of accused Tilak Singh Pal. Since he was found resiling from his previous statement, he was cross-examined by the prosecution with the permission of the Court but he remained adamant to his stand taken in examination-in-chief. Though in his examination-in-chief, he had claimed that some cassettes were played in cross- examination, he rather claimed that same memory cards, which were played in the court during his evidence, were played in CBI office that day. This means that on 10.08.2016 memory cards had been opened. Moreover the departure entry (Ex. DW7/A) indicates that PW6 HC Manoj Kumar left PS Nihal Vihar at about 11.30 AM vide DD No. 33B and, therefore, it is not possible to hold that he would be there at CBI office at 10.15 AM on 10.08.2016.
11.4 PW7 Praveen has claimed that he was called once after the raid when he had identified voices recorded on 19.07.2016 & 20.07.2016 and signed the voice identification memo. He claimed that he did not remember the date but memory card was played by CBI and he heard the conversation from that memory card and that CC No. 532382/2016 CBI Vs. Tilak Singh Pal (CNR NO. DLCT01-012095-2016 ) Page No. 34 of 47 day, they remained in CBI office for about two hours.
11.5 PW10 Ved Prakash did not say anything about preparation of transcription on 10.08.2016 when he was examined-in-chief. It was only when he was cross-examined by CBI that he revealed that he had gone to CBI office on 10.08.2016. According to him, CD containing conversation was played on the laptop of DSP Joseph Krelo and they were handed over one already typed transcription which was in Hindi and English both. They were asked to compare the dialogues in recorded conversation which they compared and found to be correct.
11.6 PW11 Abhinav Singh did not reveal anything about preparation of transcription on 10.08.2016 during his examination-in-chief or when he was cross- examined by CBI. He merely identified his signatures on the Transcription Memo and did not utter even a single word about any exercise done on10.08.2016. Thus, it is not absolutely clear whether such transcription was prepared in the presence of PW11 Abhinav Singh.
11.7 It is also pertinent to mention that even concerned SHO i.e. PW8 Sharat Chandra could not identify the voice of accused when Q1 & Q2 were played in the Court. He claimed that he was called on 23.08.2016 for hearing the voices and for identifying the same and told CBI that he was not sure but perhaps such voice seemed to be of accused. When such conversation was played again in the Court, he failed to identify the same. His cross-examination conducted by CBI also did not yield any positive result on said aspect.
11.8 Thus, though there is not desired clarity as about some of the aspects related to preparation of transcription, there is no qualm that Q-1 contains the verification-conversation which divulges the unequivocal demand on the part of accused. It cannot be inferred, without any reason, that such conversation is CC No. 532382/2016 CBI Vs. Tilak Singh Pal (CNR NO. DLCT01-012095-2016 ) Page No. 35 of 47 manufactured or fake. Such electronic evidence remains of unimpeachable character and cannot be doubted or discarded. It is also in complete synchronization with the ocular evidence of complainant.
OTHER INVESTIGATION ASPECTS 12.0 During investigation, accused was asked to give his specimen voice sample which he gave.
12.1 Memory card S-1 contains specimen voice sample of accused.
12.2 After apprehension of the accused at PS Nihal Vihar, he was brought to CBI office on 20.7.2016 itself. TLO/PW-12 Anand Swaroop has deposed that they left PS Nihal Vihar at about 20:45 hours and reached CBI office at 23:30 hours. Arrest memo has been proved as Ex. PW 10/I. After hearing the conversation contained in Q-2, accused was asked to give his specimen voice sample and he "voluntarily agreed" to the same. Accordingly, one Kingston SD card, newly packed, was opened in the presence of independent witnesses and was inserted in the DVR and after recording introductory voices of both the independent witnesses, accused was asked to give his specimen voice which he did.
12.3 Sh. Verma has contended that accused had never agreed to any such request. Moreover, no warning was given by CBI official when such alleged specimen voice sample of the accused was taken and, therefore, act of taking of voice sample violated Article 20(3) of Constitution of India and since no warning had been given to the accused, proceedings relating to taking of specimen voice do not have any legal sanctity. It has also been supplemented that the manner of taking specimen voice sample was against the prescribed scientific protocol as it was not taken in the same environment in which the questioned voices were found recorded.
CC No. 532382/2016 CBI Vs. Tilak Singh Pal (CNR NO. DLCT01-012095-2016 ) Page No. 36 of 47 12.4 Article 20(3) of Constitution of India prescribes protection and safeguards for an accused and it clearly stipulates that no person accused of any offence shall be compelled to be a witness against himself. Word "Compelled" holds the key. It is not the case of CBI that accused was compelled to give his voice sample. He was simply asked during the investigation whether he wanted to give voice sample and since he voluntarily agreed, the defence cannot be permitted to invoke Article 20(3) of Constitution of India. Reliance on Rakesh Bisht Vs. CBI 2007 CRI.L.J. 1530 DELHI is misplaced. In that case, the situation was different. In that case, an application was filed before Ld. Special Judge (CBI) with the prayer that accused be directed to give his voice sample for the purposes of comparison with the tape recorded conversation and Ld. trial court allowed such application. Such order was challenged before the Hon'ble High Court of Delhi and it was agitated that such court of Special Judge did not have any such jurisdiction or power to allow application of CBI. It was in that context that the Hon'ble High Court came to the conclusion that accused, at the stage of investigation, cannot be compelled to give his voice sample just as he could not be compelled to undergo "Test Identification Parade" and resultantly the order passed by the Ld. trial court was set aside and the revision petition was allowed. Evidently, in said case, the accused did not want to give his voice sample and, therefore, it was observed that during investigation he could not be compelled to become a witness against himself. Here, no such situation exists as accused had 'voluntarily agreed' to give his voice sample. Question of warning would have arisen only if he had refused and CBI had shown its insistence. Issue whether in the absence of any provision in the Code, Magistrate can authorize the investigating agency to record the voice sample of the person accused of an offence is undecided as matter has been referred to Larger Bench of Apex Court in view of the split decision in the case of Ritesh Sinha Vs. State of Uttar Pradesh & anr. 2013(2) SCC 357.
CC No. 532382/2016 CBI Vs. Tilak Singh Pal (CNR NO. DLCT01-012095-2016 ) Page No. 37 of 47 12.5 There is nothing to show that S-1 was not reliable or that the manner in which such voice sample had been taken had rendered the comparison impossible.
12.6 I have seen report of PW-14 Sh. Amitosh Kumar who conducted forensic voice examination. He received sealed parcels pertaining to Q-1, Q-2 and S-1 and after comprehensive analysis, he came to the conclusion that the related questioned voice of accused, as contained in Q-1 and Q-2, was similar to the specimen voice of accused as contained in S-1 in respect of linguistic and phonetic features and also in respect of their formant frequencies distribution, intonation pattern, number of formants and other general visual features in voice grams and, therefore, such voice was opined as probable voice of accused Tilak Singh Pal. He also observed that waveform, spectrographic analysis and critical auditory examination of the relevant record contained in Q-1, Q-2 and S-1 also revealed that the audio recording was continuous and no form of tempering was detected.
12.7 There is evidently a motive with the accused to raise demand in question.
12.8 Tilak Singh Pal was investigating officer of FIR No. 419/16 in which brother of complainant was accused who was behind the bars. Undoubtedly, the bail application of such brother of complainant had been dismissed on one previous occasion but that fact by itself would not mean and suggest that there was no reason or occasion for the IO to have made any demand. Rather, since such brother of accused continued to be in custody, it can be safely presumed that there was an apparent opportunity for the accused to have come up with a demand. Conversation contained in Q-1 also clearly indicates that accused wanted bribe so that complainant is able to secure bail for his brother. In such recorded conversation as contained in Q-1, accused is found claiming "Rahne do phir kuch hi na ho. Tum apni karwahe raho jamanat maine koi rok rakha hai kya hai". He made these utterances when complainant tried to negotiate the bribe amount. During such conversation, accused CC No. 532382/2016 CBI Vs. Tilak Singh Pal (CNR NO. DLCT01-012095-2016 ) Page No. 38 of 47 also told complainant not to move bail application immediately and rather told him very clearly to move the same after 10-15 days and till that time, he would prepare the charge sheet. Thus, motive aspect stands proved amply.
12.9 Sh. Verma has contended that no reliance can be placed on the testimony of independent witnesses who are stock witnesses of CBI. I, however, do not find any merit in such contention. Merely because PW-11 Abhinav was a witness in one previous case, would not make him a stock witness. PW-10 Ved Prakash had admittedly gone to CBI on 2-3 previous occasions but he also supplemented that he never joined any raid on any such previous occasion. This also would not make him stock witness by any stretch of imagination.
12.10 Sh. Verma has contended that complainant had a motive to implicate the accused as he was harbouring grudge against him. According to him, accused had taken repeated harsh legal actions against the complainant, his brother and other associates and, therefore, false case has been made. Defence has relied upon Kedar Singh Vs. State of NCT of Delhi 244(2017) DLT 277 Delhi and Ganpathi Sanya Naik Vs. State of Karnataka AIR 2007SC 3213. In this regard, Sh. Verma has also drawn attention of the court towards the testimony of DW-2 Kamal Kaushal, DW-3 Inspt. Chander Shekhar and DW-9 HC Prem Chand and the documents proved by them. He has argued that there were number of cases against complainant as well as his brother Pradeep and complainant very well knew that accused would not spare them and, therefore, he tried to find a novel device to implicate him in a false case. Undoubtedly, complainant was having charge of investigation of some such cases but that by itself would not mean that complainant would falsely implicate him. Such argument rather acts as a double-edged weapon. If it supplies the alleged motive, it also provides a reason to make demand of bribe.
CC No. 532382/2016 CBI Vs. Tilak Singh Pal (CNR NO. DLCT01-012095-2016 ) Page No. 39 of 47 DISCUSSION ON CITED PRECEDENTS AND CONCLUSION 13.0 Though Section 7 & Section 13 (1) (d) of Prevention of Corruption Act are generally applied together and invariably accused, in such type of matter related to trap and demand of illegal gratification and acceptance thereof, are charged under Section 7 as well as under Section 13 (1) (d) of Prevention of Corruption Act, the subtle distinction between the two penal provisions should not be forgotten. Naturally, if any such accused accepts illegal gratification as well, such act, besides being punishable u/s 7 of Prevention of Corruption Act would also simultaneously attract Section 13 (1) (d) of Prevention of Corruption Act, being a criminal misconduct. In context of Section 13 (1) (d) of Prevention of Corruption Act, concerned accused must obtain any valuable thing or pecuniary advantage either for himself or for any other person. Thus, element of obtainment is the prime ingredient for Section 13 (1)
(d) of Prevention of Corruption Act. By necessary implication, if there is no obtainment or acceptance then Section 13 (1) (d) Prevention of Corruption Act would not stand attracted. It thus becomes obvious that though the act of accepting illegal gratification may fall under both the aforesaid two penal provisions, question may arise about applicability of Section 13 (1) (d) of Prevention of Corruption Act, if there is mere demand, not followed by any act of obtainment.
13.1 Right here, it would be advantageous to note the main portion of Section 7 Prevention of Corruption act which reads as under:
"Public servant taking gratification other than legal remuneration in respect of an official act.--Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any CC No. 532382/2016 CBI Vs. Tilak Singh Pal (CNR NO. DLCT01-012095-2016 ) Page No. 40 of 47 service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine."
13.2 A bare perusal of the aforesaid Section would lay bare that if any such accused 'agrees to accept' or 'attempts to obtain' any such illegal gratification, he would be also squarely covered by Section 7 of Prevention of Corruption Act. Thus, element of acceptance or obtainment may or may not be present while invoking Section 7 of Prevention of Corruption Act.
13.3 Naturally, if bribe has been accepted, it would be covered under Section 7 & Section 13 (1) (d) of Prevention of Corruption Act both. But can any accused be held liable for commission of offence under Section 7 of Prevention of Corruption Act for mere demand without any subsequent act of acceptance of bribe? The intention of legislature is loud and clear and, therefore, needs to be respected. There is no ambiguity in the penal provision and as per the clear cut language used in Section 7 of Prevention of Corruption Act, mere willingness or confirmation to accept the bribe has also been made punishable. Thus, mere agreeing to accept any bribe would attract culpability u/s 7 of Prevention of Corruption Act.
13.4 Learned defence counsel has cited number of judgments claiming that in order to make out a case under Section 13 (1) (d) of Prevention of Corruption Act and Section 7 as well, prosecution is required to show demand, acceptance and recovery. Such broad and general principle cannot be disputed but it is very much evident from the bare language used under Section 7 of Prevention of Corruption Act that as far as invocation of Section 7 of Prevention of Corruption Act is concerned, it can be pressed into service on the basis of mere demand alone. It was precisely for said CC No. 532382/2016 CBI Vs. Tilak Singh Pal (CNR NO. DLCT01-012095-2016 ) Page No. 41 of 47 reason that immediately after the verification, the FIR was registered.
13.5 Reference in this regard be made to V. Kasi Vs. State of Tamilnadu 2013 Crl. L.J. 53 Madras whereby Hon'ble Madras High Court has held that Section 7 of Prevention of Corruption Act bars the demand whereas Section 13 of Prevention of Corruption Act prohibits obtaining pecuniary advantage and, therefore, they both were distinct offences. Thus, in a given situation, where there is only a demand which is either not followed by any acceptance or obtainment or where the aspect related to acceptance or obtainment is not proved beyond shadow of doubt, the Court can still, on the basis of the impeccable evidence pertaining to the agreement or willingness to accept the demand on the part of such accused, return finding of guilt of commission of offence under Section 7 of Prevention of Corruption Act.
13.6 No case has been cited by the defence which propounds that mere demand would not attract invocation of Section 7 of Prevention of Corruption Act. On the other hand, there is a very recent judgment of Hon'ble Bombay High Court cited as Pandurang Shinde (Paraswale) Vs State Of Maharashtra (CRIMINAL APPLICATION NO.1076 OF 2017, Date of Decision:13 March, 2018) wherein also similar question arose whether mere demand was sufficient to invoke sec 7 of Prevention of Corruption Act or not and Hon'ble Bench held that it could not be said that mere demand was not an offence and thus refused to quash the FIR.
13.7 Undoubtedly, demand of illegal gratification is sine qua non to constitute an offence under Section 7 of Prevention of Corruption Act and mere recovery of the bribe amount would not prove offence under Section 7 of Prevention of Corruption Act unless it was proved beyond all reasonable doubts that accused voluntarily accepted the money knowing the same to be bribe. Reference in this regard be made to C.M. Sharma Vs. State of AP (2010) 15 SCC 1, C.M. Girish Babu Vs. C.B.I. (2009) 3 SCC 779 & B. Jayaraj Vs. State of Andhra Pradesh (2014) 13 SCC 55.
CC No. 532382/2016 CBI Vs. Tilak Singh Pal (CNR NO. DLCT01-012095-2016 ) Page No. 42 of 47 Thus, in a given situation, possession and recovery, without the proof of demand may not be held as sufficient to bring home the guilt under Section 7 of Prevention of Corruption Act. Indubitably, prosecution is required to prove the foundational facts and prosecution cannot midway change the nature of the case set up by it. Defence is justified in relying upon Bhagirath Vs. State of MP Air 1976 SC 975 but, in the case in hand, there is no material deviation from the original case.
13.8 Of course, prosecution had to cross-examine some of its own witnesses. When any witness is cross examined and contradicted with the leave of the court, by the party calling him, his entire evidence cannot, be expunged. In Abdul Rahim alias Indori Vs. State of NCT of Delhi (2012 SCC OnLine Del 2601), our own High court has observed that there was no doctrinaire or stereotypical approach which could be applied by the courts whenever a witness for the prosecution turns hostile. Each case and the deposition of each witness is required to be considered in the light of its peculiar circumstances while having regard to the rule of reason, prudence and credibility. Thus in a criminal trial, when a witness is cross-examined and contradicted 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.
CC No. 532382/2016 CBI Vs. Tilak Singh Pal (CNR NO. DLCT01-012095-2016 ) Page No. 43 of 47 13.9 It does not really matter as to who was the scribe of complaint- Complainant or Subodh? It is an inconsequential contradiction. Trivial discrepancies and omissions ought not to obliterate an otherwise acceptable evidence. Although the benefit of every reasonable doubt should be given to the accused, the court should not, at the same time, reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures. Sh. Rao has relied upon State of Punjab v. Jagir Singh (1974) 3 SCC 277 wherein it has been held that a criminal trial is not a fairy tale where one is free to give flight to one's imagination and fantasy. It was observed that crime was an event in real life and product of interplay of different human emotions and, therefore, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses.
13.10 Sh. Verma has, relying upon Ram Chander Vs. State 2009 (4) RCR (Cr.) 880, Gireesan A. Vs. State (2012) X AD Delhi 8, State of Punjab Vs. Madan Mohan Lal Verma 2013 (7) LRC 34 (SC), B. Jayaraj Vs. State 2014 STPL (Web) 214 SC , P. Satyanarayana Murthy VII (2015) SLT 554,C. Sukumaran Vs. State of Kerala I (2015) SLT 694 SC re-asserted that demand is sine-qua-non for any such species of offence and is required to be proved by cogent evidence. He has argued that in the present case neither the initial demand has been proved nor the evidence produced on record indicates any such demand. Elaborate discussion has already been made with respect to the evidence appearing on record and. Therefore, defence cannot dig out any advantage from said precedents as the element of 'demand' has been duly established by CBI herein.
13.11 In such type of matters, demand can be raised at various stages. Naturally, it has to be prior to making of complaint to CBI. Until and unless, there is a prior demand, no complainant would report the matter to any investigating agency. Such demand can be deciphered during the verification process and finally at the time of trap. Demand can be direct or even inferential.
CC No. 532382/2016 CBI Vs. Tilak Singh Pal (CNR NO. DLCT01-012095-2016 ) Page No. 44 of 47 13.12 Fortunately for the prosecution, in the present case the demand is direct. The conversation, as recorded in Q-1, clearly indicates that accused had no hesitation in discussing about the bribe amount. So much so, he repeatedly told the complainant not to go for any further negotiation. It is not of much significance as to when exactly the amount was negotiated and reduced from Rs. 1,00,000/- to Rs. 80,000/-. The core question would always be- whether there was a demand or not.
13.13 As per the case of prosecution initial demand was made on 18.7.2016. Complainant met the accused on 18.7.2016 in early hours of the day at police station. Undoubtedly, if PW-10 Ved Prakash is to be believed then they had met in the evening at police station also. Ld. Prosecutor suggested, in re-examination, to PW-10 Ved Prakash that complainant never met accused on 18.7.1996 at PS Nihal Vihar. The defence cannot be permitted to dig out any unwarranted mileage from the aforesaid suggestion. Ld. Prosecutor merely wanted to suggest to him that no such meeting had taken place between complainant and accused in the presence of Ved Prakash in the evening of 18.7.2016.
13.14 CBI, indeed, was not justified in holding back the incident dated 18.7.2016. I do not find any reason to disbelieve the call detail record which goes on to demonstrate that some event had taken place in the evening of 18.7.2016 also. Instead of stifling such fact, investigating agency should have rather itself highlighted the same in the charge sheet. The omission in this regard may be due to some misconceived thinking on the part of investigating officer but that would not make the entire prosecution story distrustful. The lapse in this regard is, therefore, not fatal. Moreover, if CBI had any ulterior objective, it would not have dared to collect CDR of mobile of 'complainant' and 'accused' for 18.07.2016 as well.
CC No. 532382/2016 CBI Vs. Tilak Singh Pal (CNR NO. DLCT01-012095-2016 ) Page No. 45 of 47 13.15 Sh. Verma has claimed that conversation in question is not liable to be relied upon. He has relied on Ram Singh & Ors. Vs. Col. Ram Singh AIR 1986SC 3,Hannan Vs. State of NCT of Delhi (2013)3JCC(Narcotics) 94 Delhi, Devender Singh Vs. CBI MANU/DE/0768/2014and Surender Singh Vs. State of NCT of Delhi 2014 (8) LRC 177. There is no qualm with the settled propositions but in the instant case, there is no reason to discard the conversation as found recorded in Q1 which clearly establishes the demand on the part of the accused. There is no illegality about the manner in which recording was done and its preservation till the same was sent to forensic expert for examination. The file name got generated automatically contemporaneous with the time of such recording. Though SI Manish did not reveal much about the incident dated 20.7.2016 and though the version of Ved Prakash is also little different from the complainant but it would not go on to suggest that it is a false case altogether or that their entire deposition is liable to be rejected. Principle of Falsus in uno, falsus in omnibus is not applicable to criminal matters in India and, therefore, that part of the testimony of any hostile witness which remains unimpeached can always be utilized by the concerned party. Original memory cards have also been produced before the court. Recording was instantly stored on such memory cards. Thus, the primary evidence has been produced before the court. Voice of accused had been duly identified by complainant. The report of voice expert also corroborates complainant.
13.16 I have seen the exhaustive written arguments and various other precedents cited by defence. I agree with the Ld. defence counsel that if two views are possible, one in favour of prosecution and other in favour of accused, the latter should prevail. In the present case, however, no such situation exists which may compel me to form two diametrically opposite views.
13.17 I would, however, agree that the events related to spot occurrence dated 20.7.2016 do not stand proved to the hilt. The audio is not as clear as it ought to have CC No. 532382/2016 CBI Vs. Tilak Singh Pal (CNR NO. DLCT01-012095-2016 ) Page No. 46 of 47 been. Quite possibly, the accused might have acted in a very smart and clever manner and instead of accepting money himself, he might have directed the complainant to put the money in a particular bag/envelope. But there is a huge difference between the story being "may be true" and being "must be true" and as regards incident dated 20.7.2016, the prosecution could not travel upto that extra mile. Therefore, the acceptance and recovery of money from the conscious possession of accused does not stand proved beyond doubt. Albeit, the element of demand has been proved by the prosecution in irrefutable manner.
13.18 Resultantly, I hereby hold accused guilty and convict him for committing offence under Section 7 of Prevention of Corruption, Act, 1988 only.
Announced in the open Court On this 16th April, 2018 (MANOJ JAIN) ASJ/Special Judge (PC Act) (CBI)-04 Central Distt: Tis Hazari Courts: Delhi Digitally signed by MANOJ MANOJ JAIN Date:
JAIN 2018.04.16
16:04:43
+0530
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