Delhi District Court
Cbi vs . Sh. Sita Ram on 5 February, 2013
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IN THE COURT OF SH. PRADEEP CHADDAH:
SPECIAL JUDGE: CBI01, CENTRAL DISTRICT. DELHI
CC No. 20/08 RC : 21(A)/06
PS :CBI/ACB/ND
U/s : 7 & 13 (1) (d) r/w 13(2)
of P.C. Act, 1988
CBI Vs. Sh. Sita Ram
S/o Late Sh. Lekhi Ram,
R/o. CP186, Pitam Pura, Delhi.
( the then Executive Engineer, Construction
Division No. IV, CPWD, IARI Complex, Pusa, New
Delhi.)
ORDER ON SENTENCE
1. This Court had vide its judgment dated 04.02.13 found the
convict guilty U/s. 7 and 13(1) (d) r/w 13(2) of PC Act.
2. I have heard Sh. Praneet Sharma, Ld. Sr. PP for CBI and Sh. H.K.
Sharma Ld. Counsel for convict at length.
3. Sh. Praneet Sharma, Ld. Sr. PP prayed for taking of strict view of
CC No. 20/08 CBI Vs. Sita Ram pg 1 of 57
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the matter and granting of exemplary punishment to the convict. He further
prayed that sentences which should be awarded to the convict should run
consecutively. On the other hand, Ld. Counsel for the convict prayed for
taking of lenient view. He claimed that convict is 62 years old. His wife is
infirm. He has two sons but none of them are staying with him.
4. The allegations proved against the convict are quite serious in
nature. While working as Executive Engineer in CPWD, he sought bribe
of Rs.7000/ from the complainant which was approximately 2% of the
tender amount which had been awarded to the complainant.
5. Hon'ble Supreme Court in Raman Lal Vs. State of
Bombay :AIR 1960 SC 961 had held:
" For a public servant to be guilty of corruption is a very serious
matter and the Courts would not look upon it with undue leniency."
6. I have given my considered thought. Convict is 62 years old
CC No. 20/08 CBI Vs. Sita Ram pg 2 of 57
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retired public servant. Court must make an effort to strike balance between
interest of society and age and related circumstances of the convict. There
is rampant corruption in almost all government departments and CPWD is
no exception to it. Not a single sheet of paper moves until and unless the
palms are greased. Not a single tender can be awarded or payment released
until the officials incharge are suitably awarded by the public. Keeping in
mind his age and back ground, I sentence convict Sita Ram to undergo
three years R.I. U/s 7 of P.C. Act . In addition, he shall be paying fine of
Rs. 1,00,000/ and in default of payment of fine, he shall be undergoing
S.I. for three months. I also sentence him to undergo RI for three years U/s
13 (1) (d) r/w. 13(2) of P.C. Act. In addition, he shall be paying fine of Rs.
1,00,000/ and in default of payment of fine, he shall be undergoing S.I. for
three months.
7. The request made by Learned Sr. PP to the effect that sentences
be ordered to run consecutively is declined. Both the sentences of the
CC No. 20/08 CBI Vs. Sita Ram pg 3 of 57
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convict shall run concurrently. He shall also be given benefits of period
undergone as under trial (if any).
Announced in open Court
on February 5 , 2013 ( PRADEEP CHADDAH )
Special Judge:CBI01
Central District. Delhi
CC No. 20/08 CBI Vs. Sita Ram pg 4 of 57
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IN THE COURT OF SH. PRADEEP CHADDAH:
SPECIAL JUDGE: CBI01, CENTRAL DISTRICT. DELHI
CC No. 20/08 RC : 21(A)/06
PS :CBI/ACB/ND
U/s : 7 & 13 (1) (d) r/w 13(2)
of P.C. Act, 1988
CBI Vs. Sh. Sita Ram
S/o Late Sh. Lekhi Ram,
R/o. CP186, Pitam Pura, Delhi.
( the then Executive Engineer, Construction
Division No. IV, CPWD, IARI Complex, Pusa, New
Delhi.)
Date of Institution : 31.08.2007
Judgment Reserved : 11.01.2013
Judgment Delivered : 04.02.2013
J U D G M E N T
1. Executive Engineer, CDIV, CPWD Pusa had invited tenders for construction of shed for diesel generator for KABI building, Pusa, New Delhi. Tenders were opened and complainant Ajit Singh Yadav was called CC No. 20/08 CBI Vs. Sita Ram pg 5 of 57 6 for negotiations by the accused who was Executive Engineer in the last week of May 2006. Instead of awarding the contract to the complainant whose bid was lowest, he demanded bribe of 2% of the accepted tender value which was approximately Rs.7,000/. Accused told the complainant that in case money is paid, work would be awarded otherwise tender would be cancelled and fresh tender will be called for. Complainant then lodged a complaint on the basis of which instant FIR no. RCDAI2006A0021 was registered and was entrusted to N.V.N. Krishnan for investigation and laying of the trap.
2. A trap team constituting of officers of CBI and two independent witnesses from NCCF, Nehru Place was constituted. Complainant was introduced to the team members who satisfied themselves about genuineness of the complaint. Complainant also produced Rs. 7,000/. Their numbers were noted down. Phenolphthalein powder was applied to the currency notes and independent witness Gurender Pal Singh gave demonstration by touching the notes with his fingers and thereafter dipping his fingers in solution of sodium carbonate. Digital voice recorder was called for. Formal voices of the independent witnesses was recorded therein and it was handed over to the complainant with directions to switch CC No. 20/08 CBI Vs. Sita Ram pg 6 of 57 7 it on before contacting the accused. A KCR360 with TDKD60 audio cassette alongwith credit card transmitter was arranged to overhear the conversation which may take place between accused and the complainant. Complainant also informed the CBI officials that accused would not accept bribe in presence of third person. It was decided not to send a shadow witness alongwith the complainant.
3. The team reached near office of the accused at about 12.25 hours. Complainant was directed to contact the accused, while independent witness Ram Swaroop Yadav was to discretely follow the complainant. Complainant went inside chamber of the accused while shadow witness stood outside. After about 510 minutes complainant came out and gave pre decided signal. Inspector Prem Nath who was overhearing the conversation also informed about the completion of the bribe transaction. Shadow witness also gave the signal and the team members rushed inside. Accused was found sitting on his chair. Upon being challenged about accepting the bribe, he kept silent and then admitted the acceptance. He was caught from his both wrists. Colourless solution of sodium carbonate was prepared. Accused dipped his fingers of both hands one by one. On each occasion, solution turned pink. It was poured into clean glass bottles, CC No. 20/08 CBI Vs. Sita Ram pg 7 of 57 8 wrapped and labeled as RHW and LHW. The bribe amount was recovered lying on a towel spread on chair of the accused. Their numbers were tallied. Portion of the towel was also dipped in colourless solution of sodium carbonate which turned pink again. It was poured into glass bottle and labeled as TW. Pant of the accused was got removed. Rear left side of the pant was dipped in another solution of sodium carbonate. It too turned pink. It was poured in a bottle and labeled as LRSTPW. The voice recorders were replayed which confirmed demand and acceptance of bribe. Accused was arrested. His personal search was conducted. Subsequently charge sheet was filed wherein it was prayed that accused be summoned and tried.
4. After appearance of accused, he was provided with copies. My Ld. Predecessor framed the following charge against him:
" That on 20.6.06, at the office of Executive Engineer, Construction Division No. IV, CPWD, IARI Complex, Pusa, New Delhi you while working as Executive Engineer in Construction Division No. IV, CPWD, IARI Complex, Pusa, New Delhi and as such being a public servant demanded and CC No. 20/08 CBI Vs. Sita Ram pg 8 of 57 9 accepted bribe of Rs. 7000/ other than legal remuneration from the complainant Shri Ajit Singh Yadav as a motive or reward forwarding contract for construction of shed for diesel generator at KABI Building, Pusa, New Delhi and thereby you committed an offence punishable under section 7 of the Prevention of Corruption Act 1988 within my cognizance.
Secondly on the above said date and place, you being employed as above public servant obtained bribe of Rs. 7000/ from the said complainant as a pecuniary advantage for yourself by corrupt and illegal means or otherwise by abusing your position as such public servant and thereby you committed an offence of criminal misconduct as specified under section 13 (i)(d) and punishable u/s 13(2) of the Prevention of Corruption Act 1988 and within my cognizance."
5. Accused pleaded not guilty and claimed trial. Prosecution in CC No. 20/08 CBI Vs. Sita Ram pg 9 of 57 10 support of its case examined fifteen witnesses, while accused examined nine witnesses in his defence.
6. The first witness to be examined was Ms. A.Radharani. She deposed that on 17.8.07 she was posted as Under Secretary to Government of India. She was authority competent to remove the accused from service. She perused request of CBI along with copies of FIR, rukka etc. etc., applied her mind and thereafter granted sanction for prosecution of the accused vide her order Ex.PW1/A. In her crossexamination she denied the suggestion that she had granted sanction mechanically without application of mind.
7. The next witness to be examined was Mr. Mahesh Kr. Sharma. Inadvertently my Ld. Predecessor accorded to him also S. No. 1. In fact he was witness No. 2. Mr. Sharma deposed that he was posted as UDC in the office of Executive Engineer, Construction DivisionIV CPWD Pusa, New Delhi. Original NIT which was Ex.PW1/A ran into 36 pages. Its attested copies of the relevant pages were collectively Ex.PW1/B. His duty was to receive tender applications along with tender cost and earnest money. He used to participate in the opening of the tenders. He deposed further that CC No. 20/08 CBI Vs. Sita Ram pg 10 of 57 11 bid of Ajit Construction Co. was found to be lowest. He had made an entry in the cash book No. 166 at page140. Its copy was Ex.PW1/B1. It was responsibility of the Executive Engineer to ensure due publication of NIT as per rules. The accused was Executive Engineer at the relevant time.
8. The third witness to be examined was Dr. D.K. Tanwar, Sr. Scientific Officer, CFSL. He had been accorded S.No. 2 by my Ld. Predecessor. He deposed that his office had on 22.6.06 received three sealed parcels for forensic voice examination. Parcel markQ1 contained normal size audio cassette having total recording of 7 minutes and 44 second approx. on sideA. There were few clearly audible utterances. Parcel Q2 also contained a normal audio cassette having recording of 9 minutes and 28 seconds. Certain sentences were clearly audible. Parcel S1 also contained a normal size audio cassette having specimen voice of Sita Ram Gupta. The witness deposed that he found similarities in the specimen voice and questioned voices. He prepared his report Ex.PW2/A. He denied the suggestion that his report was only on the line of transcription which had been provided to him by the CBI. He also admitted as correct that forwarding letter does not mention that any transcript was also sent to him. He also admitted that instruments were CC No. 20/08 CBI Vs. Sita Ram pg 11 of 57 12 available which could detect tampering in the recording of sounds in audio cassettes. He was crossexamined extensively. But I would not like to give details since I am not inclined to accept the tape recordings for the reasons which I shall assign in the due course.
9. The next witness to be examined was Sh. Ramesh Kumar Asstt. Accounts Officer. He was accorded S. No. 3 by my Ld. Predecessor. He deposed that in 2006 he was posted as Divisional Accounts/Asstt. Accounts officer, Construction DivisionIV, Pusa Complex, New Delhi. Accused was posted as Executive Engineer in his office. Tenders were floated for construction of temporary sheds for D.G. Set. The tenders were opened on 26.4.06. Certified photocopy of comparative statement was Ex. PW3/A. He further claimed that bid of Ajit Construction Co. was the lowest. It was 52% above the estimated cost. File was sent to A.S. W. (Planning) who prepared market rate justification @ 38.9%. The contractor attended the office and held negotiations with accused Sita Ram. The negotiations letter was Ex. PW3/B. File was thereafter sent to award the contract to M/s Ajit Construction Co. Before negotiations PG letter Ex. PW3/C was sent to the contractor. Accused had proceeded on leave after PG letter was sent to him. In his cross examination he claimed that since CC No. 20/08 CBI Vs. Sita Ram pg 12 of 57 13 variation was more than 10%, prior approval of ICAR was taken for awarding the contract. He admitted that one of the CBI team members was N.K. Jain. N.K. Jain had carried out the proceedings while sitting on seat of the accused.
10. The next witness to be examined was Ram Swaroop Yadav. He was accorded S.No. 4 by my Ld. Predecessor. He deposed that on 20.6.06, he was posted in NCCF. On instructions of Vigilance officer, he attended CBI office alongwith Sh. G.P. Singh. They were introduced to complainant Ajit Singh Yadav., Complainant produced Rs. 7000/ whose numbers were noted down and checked by G.P. Singh. Mr. Jain CBI inspector got the notes treated with phenolphthalein powder. A demonstration was given and treated GC notes were handed over to the complainant who kept them in his shirt pocket. He was directed to hand over the money on demand to the accused. Complainant was also provided with a pen type instrument to record conversation. They then reached the spot. He was asked not to go inside the office. He was to give signal by scratching his head after transaction. He remained present in the compound. After sometime, complainant came outside the office and gave signal to him regarding handing over of the money. He (PW Ram Swaroop Yadav) then in turn CC No. 20/08 CBI Vs. Sita Ram pg 13 of 57 14 gave signal to CBI team which reached the spot. They went inside the office of the accused. Accused was caught hold by CBI inspector by his both wrists. On search of the room GC notes of Rs. 7000/ were recovered from under the towel lying on the chair. Thereafter hand washes of the accused were taken in clear solution of sodium carbonate and the solution turned red. The towel was also washed. Its solution also turned red. When he had entered the room, accused was sitting on his seat. The pant of the accused was also got removed. On being washed, the solution turned red. The witness then deposed about various documents, which contained his signatures. His voice was recorded in some cassettes at CBI office. The GC notes recovered from the accused were Ex. P1 to P14, while bottles containing solutions were Ex. P15 to P18. The cloth wrappers were Ex. P19 to P22. The towel seized was Ex. P23. The witness was cross examined wherein he admitted that he had deposed in 34 cases for CBI. Regarding the present case, he received instructions to attend CBI office on 19.6.06. He had gone there but no trap was laid on that day. In the evening, he was asked to go back by CBI officers and come again on 20.6.06. On 19.6.06 he was not informed about the case for which he had been asked to report. On 20.06.06 he was informed that he was to accompany complainant to Pusa Road. He admitted as correct that entire proceedings CC No. 20/08 CBI Vs. Sita Ram pg 14 of 57 15 had been conducted by N.K. Jain. Regarding few documents, the witness claimed that he did not recollect as to from where they had been recovered but they did contain his signatures. On 20.06.06 he along with G.P Singh and N.K. Jain Inspector had left in the jeep of CPWD. He denied the suggestion that CBI officers had alone told him about recovery of GC Notes. He admitted that CBI officers had taken physical search of the accused before recovery of money. Both Inspector N.K. Jain and Navneeth Krishnan had taken their physical search. They had caught hold of hands of the accused. Regarding the present case, he had visited CBI office once but he did not remember the date. He had been called for recording by inspector N.K. Jain. He had signed papers after he was explained about their contents. He also denied the suggestion that washes were not taken in his presence. Lastly he denied the suggestion that he was deposing as per instructions of CBI.
11. The next witness to be examined was Suresh Kumar. He was accorded S.No. 5 by my learned predecessor. He deposed that in 2006, he was posted as auditor/LDC in office of Executive Engineer, CPWD, IARI, Pusa New Delhi. His job was to prepare comparative statement after opening of tenders. Comparative statement prepared by him in the present CC No. 20/08 CBI Vs. Sita Ram pg 15 of 57 16 case was Ex.PW3/A. The negotiations had taken place on 31.05.06 and negotiation letter Ex.PW3/B was signed by the accused on 31.05.06 itself.
12. The next witness to be examined was complainant Ajit Singh Yadav. He was accorded S.No. 6 by my Ld. Predecessor. He deposed that he was contractor GradeIV in CPWD. During April 2006, he had filled tender for construction of generator shed in Kab1, building, Pusa New Delhi. He agreed to reduce the rate from about 50% to 38.89% according to market rate justification prepared by the department. Accused was Executive Engineer in CPWD. He demanded bribe of Rs. 7000/ for awarding the work which was approximately 2% of the tender value. On 20.6.06 he approached SP, CBI and made a written complaint Ex. PW6/A. SP, CBI called some inspector and marked his complaint to him. The inspector questioned him and he procured two independent witnesses Ram Swaroop and Gurvinder Pal Singh. He then produced Rs. 7000/ in denomination of Rs. 500/ each. Their numbers were noted. Phenolphthalein powder was applied and independent witness Gurvinder Pal Singh gave the demonstration by touching the GC notes. Thereafter his hand was dipped in solution of sodium carbonate which turned pink. The treated GC notes were kept in front pocket of his shirt and he was directed CC No. 20/08 CBI Vs. Sita Ram pg 16 of 57 17 to hand them over to the accused on his specific demand. In a digital recorder, voice of independent witness was recorded and it was handed over to him for recording conversation. They all left CBI office at about 11.30 am. Ram Swaroop was directed to remain with him as shadow witness. He (complainant Ajit Singh Yadav) told IO that if Ram Swaroop accompanied him, then accused would not accept money in his presence. Accordingly Ram Swaroop was directed not to go inside the office of the accused and remain outside the gate of the room. All team members took positions. Upon reaching office of the accused, he slightly opened the door and saw some persons sitting. After the visitors left the room, he entered inside and conversed with the accused. He also requested him to reduce the demand, but accused did not oblige. He told him that work was for Rs. 3.50 lacs and he should be paid Rs. 7000/. Thereafter he took out the tainted GC notes and handed them over to the accused. Accused accepted them with his right hand, counted them. Accused then kept those notes under his left thigh. A towel was lying on the chair (wrongly typed as table) on which the accused was sitting. He then gave pre assigned signal. Independent witness also gave signal to CBI. CBI team immediately rushed inside. He informed them that accused had accepted the bribe money and had counted it. Accused was caught by his wrist wherein he CC No. 20/08 CBI Vs. Sita Ram pg 17 of 57 18 admitted acceptance of bribe. CBI brought an engineer from Electrical division no. XI to join the investigation. Thereafter hand washes of the accused were taken one by one. Towel was also washed. Pant of the accused was got removed and portion of the pant under the thigh was washed and all the solutions turned pink. G.P. Singh recovered the tainted notes and counted them and also tallied them. Micro cassette was played. Conversation was transferred to a new cassette which was sealed. Site plan was prepared at the spot. CBI obtained signatures of the independent witnesses on the bottles and the cassette. Files lying on the table of the accused, were also seized. He was directed to attend CBI office on the next day. The tainted GC notes were Ex. P1 to P14. In his cross examination, he denied the suggestion that his entire testimony regarding conduct of the accused was false. He also denied the suggestion that accused had not demanded money from him and that accused had not handled the money on the date of trap. He further denied having planted money on the chair of the accused, while he was in custody of the CBI. At the CBI office conversation was not played before him from the digital recorder which had been handed over to him. He had signed the transcription after going through the same. He admitted having worked with accused as a contractor earlier. He admitted that negotiations take place to reduce the bid amount.
CC No. 20/08 CBI Vs. Sita Ram pg 18 of 57
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He was conversant with the manner in which contracts are awarded to lowest bidder. He admitted that on the day accused was arrested, contract had not been awarded to him. He was the lowest bidder for the contract. He claimed that on 19.6.06 he had gone to the division where he came to know that accused had not come and the file was with him. He had not met the accused on 19.6.06. He claimed that when he entered inside office of the accused, he had switched on the digital recorder. He was not aware of identity of the other person who was sitting in his room before his entry. He denied the suggestion that since he wanted to plant money, he had not taken independent witness with him inside the room deliberately. He had not met N.K. Jain prior to the raid. He denied the suggestion that accused had not accepted tainted money from him nor counted it and that he had not kept the money on the chair as deposed by him. He also denied the suggestion that he had shaken hands with the accused. The witness was recalled subsequently and extensively cross examined regarding the recordings which had been carried out. As I tend to discard the recordings, I would not give details of the cross examination regarding recording of the conversations. The witness claimed that he had gone to CBI office on 19.6.06 also but denied the suggestion that independent witnesses remained with him on that day. He claimed that he was informed about the procedure CC No. 20/08 CBI Vs. Sita Ram pg 19 of 57 20 of making complaints and was asked to come next morning by some low level CBI official. He had not met inspector N.K. Jain on 14.6.06 and 15.06.06. He also admitted that during negotiations, there could be talks like "enhance the bid amount by 3% or reduce by 3%". He admitted in his cross examination that on 20.6.06 accused had also talked to him about some grill which was affixed by him. He had received his payment before 20.6.06 and was not aware if the same had been stolen or not, as his job ended with fixing up of the grill. Upon his visit on the day of trap, he had peeped inside room of the accused where accused was sitting with somebody. He denied the suggestion that he was deposing as per his whims and fancy. He denied the suggestion that since accused had caused him financial loss, he wanted to take revenge and so falsely implicated him. He volunteered that in his previous jobs also since he did not pay bribe, accused did not make complete payment to him. He had not filed any recovery suit or initiated arbitration proceedings for balance payment.
13. Thereafter inspector Navneetha Krishnan entered the witness box and was accorded S.No. 8 by my Ld. Predecessor. He deposed that FIR no. 0021 dt. 20.6.06 was marked to him for investigation. The said FIR was Ex. PW8/A. It was registered on basis of complaint Ex. PW6/A. The CC No. 20/08 CBI Vs. Sita Ram pg 20 of 57 21 allegations were of demand of bribe of Rs. 7000/ for awarding of contract by accused Sita Ram Gupta. He verified the complaint and arranged two witnesses who were introduced to the complainant. They interacted. Complainant produced Rs. 7000/ whose distinct numbers were noted down and they were treated with phenolphthalein powder. Independent witness Mr. Singh was directed to give demonstration. A digital recorder was arranged and its function was explained. After recording introductory voices of the witnesses, it was clipped to the vest of the complainant. After completing other formalities, the trap team left for the spot. CBI vehicle was parked at a safe distance. Complainant was asked to go to chamber of accused Sita Ram Gupta and independent witness Yadav was directed to shadow him and remain close to him. Other team members followed them and took positions. Complainant peeped inside chamber of Sita Ram Gupta. After sometimes he entered it. A few minutes later, he came out and gave pre determined signal. Shadow witness also gave pre determined signal. He (TLO Navneetha Krishnan ) alongwith other team members went inside chamber of the accused. Complainant informed him that accused had demanded and accepted the bribe and had kept it under his left thigh. The witness claimed that thereafter hand washes were taken. Portion of towel which was spread on the chair and portion of pant was dipped in CC No. 20/08 CBI Vs. Sita Ram pg 21 of 57 22 solution of sodium carbonate. The solutions turned pink. Digital recorder was taken back from the complainant and played. Another Executive Engineer of CPWD sitting in the near vicinity was asked to join the proceedings. The recorded conversations were transferred to blank audio cassettes. It was sealed and marked as Q1. Rough site plan was prepared. Post trap proceedings were reduced to writing and were signed by all the team members and independent witnesses and Executive Engineer, CPWD (Electrical). Next day, specimen voice of the accused was taken. Audio cassettes and washes were sent to CFSL and case was transferred to inspector N.K. Jain. Upon being cross examined, the witness denied the suggestion that accused had been falsely implicated and that washes of the instant case had been tampered with. It was also denied that recovery memo and other documents had been fabricated. He claimed that he had no knowledge about presence of witnesses in the CBI office earlier. He also denied the suggestion that inspector N.K. Jain was associated with entire trap proceedings. He claimed that the brass seal after trap proceedings on 20.6.06, was handed over to the witness and was taken back on 21.6.06, for purpose of preparation of specimen voice recording. He claimed that he could not confirm or deny whether handwriting on document Ex. PW4/K was of N.K. Jain's or not. N.K. Jain worked as Junior Engineer (Civil) in CC No. 20/08 CBI Vs. Sita Ram pg 22 of 57 23 CBI for sometime and subsequently as an inspector. He reiterated that complaint was handed over by the SP on 20.6.06. He denied the suggestion that he had visited office of the accused with inspector N.K. Jain on 19.6.06. He denied the suggestion that purpose of sending complainant alone to the office room of the accused, was to falsely apprehend the accused in the present case. He denied the suggestion that complainant had not told him about the demand of the money by the accused. He also denied the suggestion that evidence had come on the record to reflect innocence of the accused and towards end he denied the suggestion that all the proceedings in the instant case was conducted by Inspector N.K. Jain.
14. CBI thereafter examined Mr. G.P. Singh, the second independent witness. He was assigned S.No. 9. He deposed that he was working as Accountant in NCCF. He alongwith Ram Swaroop Yadav were deputed to Office of CBI. They went to room of N.K. Jain and kept on sitting outside the room throughout the day. He then asked them to leave and come tomorrow. Next morning again they reached at about 6/6.30 am. N.K. Jain took them to room of Navneetha Krishnan. Complainant Mr. Yadav was present over there. He had complained about demand of bribe. Thereafter, the witness deposed that numbers of the notes were noted down. He was CC No. 20/08 CBI Vs. Sita Ram pg 23 of 57 24 asked to touch the notes and thereafter he dipped his hands in some solution which turned pink. The notes were kept by the complainant and he (PW G.P. Singh) was asked to witness the proceedings. They went to CPWD office and he was instructed to enter as and when signal was given by other independent witness Ram Swaroop. Ram Swaroop had accompanied the complainant. He gave a signal. Thereupon Navneet and N.K. Jain entered room of the accused. He went in later. He saw accused sitting on his chair. His both hands had been held by Navneeth Krishnan and a tall team member. Before his entry in the room, accused had thrown GC notes in a dustbin. He and other independent witness Ram Swaroop Yadav tallied the number of GC notes with the list which had been prepared in the CBI office and found that they tallied. Hand washes of the accused were taken and the solution turned pink. Accused's pant was also got removed and hip portion was dipped in the solution as GC notes were kept beneath the hips on the chair by the accused, before being thrown in dustbin. The recorded conversation was played. Witness claimed that he gathered that accused told complainant that he should do what all others do and that way both of them will be happy. The proceedings had lasted for about 2 ½ hours. Cassettes were sealed on the spot. Accused was taken to CBI office. He and Ram Swaroop Yadav accompanied them and got down CC No. 20/08 CBI Vs. Sita Ram pg 24 of 57 25 enroute for their houses. Next day, he went to CBI office where cassette was played. The various memos and site plan contained his signatures. After tallying number of GC notes with the handing over memo, witness claimed that they were the same notes which were seized from the accused. The bottles containing washes and wrappers also contained his signatures. He also identified the pant which was worn by the accused Ex. P26. The cassettes were played in the court wherein witness identified his voice and that of Ram Swaroop and also sample voices of the accused. Upon being cross examined by Ld. PP, the witness admitted that he had visited CBI office on 20.6.06, where complainant Ajit Singh Yadav was present and he had produced Rs. 7000/. He also admitted as correct that complainant was instructed to hand over the bribe amount to the accused on his specific demand. He also admitted that complainant Ajit Singh Yadav and other independent witness Ram Swaroop were instructed to give signal by scratching their head after transaction of bribe was completed. He also admitted that after receiving pre decided signal, the CBI team including him rushed inside chamber of the accused. He also admitted that during proceedings, one Sikh namely B.S. Samlok officer of CPWD was called to join the proceedings. He also admitted that he and Ram Swaroop Yadav had tallied the GC notes with the numbers recorded in handing over memo.
CC No. 20/08 CBI Vs. Sita Ram pg 25 of 57
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He also admitted that upon dipping left rear side pant portion in a solution, it turned pink. The witness was cross examined by Ld. Counsel for the accused, wherein he admitted that inspector N.K. Jain of CBI, was with the team. He also admitted that upon entering the room, he saw tainted GC notes lying on the table of the accused. Further down in the cross examination, he claimed that the GC notes were lying in the dustbin. He had attended CBI office on 19.6.06 but nothing had transpired on that day. He also denied the suggestion that he had met complainant on 19.6.06. Even on 20.6.06 they were not aware of the office they were to visit. In the end he denied the suggestion that he had been instructed by CBI officers about notification of Central Vigilance Commission for holding departmental inquiries against public servants who do not support CBI cases in their testimony in Court.
15. Mr. V.B. Ramtek Senior Scientific Officer (CFSL) was the next witness to be examined. He was assigned S.No. 10. He deposed that he had received four sealed bottles connected with this case on 22.6.06. They were marked as RHW, LHW, TW, LRSTPW. He conducted various tests. They were all found to contain phenolphthalein powder. His detailed report was Ex. PW10/A. In his cross examination, he admitted that he had not referred CC No. 20/08 CBI Vs. Sita Ram pg 26 of 57 27 to any worksheet in his report. It also did not disclose the date of test. He denied the suggestion that mere non mentioning of the date of the test and non production of the worksheet indicate that no test was conducted on 28.7.06. He placed on record the work and provided a copy to the accused. The same was Ex. PW10/B. He claimed that he himself had opened the bottles and had got them resealed in his presence.
16. The next witness to be examined by CBI was Mehr Singh. He was assigned S.No. 11. He claimed that he was posted in Pusa construction division from February 2004 to May 2008 as Assistant Engineer, CPWD. Vide letter Ex. PW4/E he had forwarded detailed estimate to Divisional Office for inviting tenders for construction of temporary sheds for DG set at KABI, Pusa, New Delhi. The total sanction was Rs. 5905200/. Some portion of civil work was also to be executed and estimate amount of Rs 276110/ was prepared by him. Vide letter Ex. PW11/A he had handed over to inspector N.K. Jain, copy of the proceedings of the meeting which was Ex. PW11/B. In a meeting held on 30.5.06 he was present alongwith the accused. Accused had delayed negotiations with the lowest bidder and the work was not awarded till 20.6.06. It should have been awarded by 11.5.06. The work of Executive Engineer is generally awarded within 15 CC No. 20/08 CBI Vs. Sita Ram pg 27 of 57 28 days after scrutiny but accused who was Executive Engineer had delayed the matter. The witness was cross examined wherein he claimed that if tender exceeds the alloted amount by more than 10% then justification has to be prepared. In the present case justification was required as the bid of Ajit Construction Co. was for Rs. 407539/. He claimed that it was possible that a person who was not familiar with process of awarding contract or justification may commit mistake while overhearing the bargaining which takes place. He may take it as if some money is being demanded.
17. Sh. Bhupender Singh Samlok colleague of the accused and Executive Engineer was the next witness to be examined by CBI. He was assigned S.No. 12. He claimed that he was posted at IARI Pusa. On 20.6.06 a CBI inspector Prem Nath came to his office and informed him that accused Sita Ram Gupta who was Executive Engineer had been trapped. He alongwith Prem Nath went to office of Sita Ram where he saw two officers of CBI holding both wrists of the accused. In his presence hand washes of the accused were taken one by one and the solutions turned pink and they were poured in clean glass bottles and was sealed. The tainted GC notes were recovered by a team member while they were lying on a chair covered with a towel. The towel also was dipped in solution CC No. 20/08 CBI Vs. Sita Ram pg 28 of 57 29 which turned pink. It was poured in a clean glass bottle and sealed. The documents were prepared by the CBI officers at IARI Pusa Campus itself. The witness was cross examined by Ld. PP wherein he claimed that his statement was not recorded u/s 161 CR.P.C.. After going through a statement purportedly made by him, the witness remarked that he did not remember having made the statement from portion A to B. He admitted that he signed the documents after going through the contents. All the proceedings which he had watched were mentioned in Ex. PW4/B. Upon being crossexamined by Ld. Counsel for the accused, he denied that he was deposing as per briefing given by CBI officers. He also denied the suggestion that he was not a witness of the events of Ex.PW4/B. He denied the suggestion that on 21.09.06 he was in Jammu and not in Delhi. He could not admit or deny if N.K. Jain was present in the room of the accused when he went on being summoned. At the time he entered the room GC notes were lying on the chair and Sita Ram accused was in custody of CBI officers and was away from that chair. He denied the suggestion that he had signed Ex.PW4/B much after 20.6.06 or that he had put the date 20.06.06 on the directions of CBI officers. He denied the suggestion that he had signed papers without reading them. Ultimately he denied the suggestion that he was made to sign fresh sets of documents and CC No. 20/08 CBI Vs. Sita Ram pg 29 of 57 30 that he has been visiting CBI office and certain CBI officials are known to him.
18. Sh. N.K. Jain thereafter entered the witness box and was assigned S.No. 13. He deposed that he was posted as Inspector in CBI, ACB from February 2002 to December 2006. On 30.06.06 he was handed over investigation of the case from TLO NVN Krishnan by orders of SP Sh. N.M. Singh. He recorded statements of complainant and other witnesses. He collected documents connected with the case. He received report of chemical examiner and host of other documents. He received proceedings of the meeting held on 30.05.06 from Mehar Singh Asstt. Engineer. In the meeting accused had stated that temporary shed would be constructed within 15 days as work already had been awarded. Accused had claimed that he had not awarded the work due to shortage of funds but he had not raised this issue in the meeting which had been held and so it was an after thought. Upon being repatriated to his parent department he handed over the investigation to Inspector S.Q. Ali. In his crossexamination he denied the suggestion that he had not recorded statement of PWs about which he had deposed. He also denied the suggestion that facts revealed by the witnesses which reflected innocence of the accused had not been CC No. 20/08 CBI Vs. Sita Ram pg 30 of 57 31 incorporated by him in the statements. He claimed that he did not remember if his own statement was recorded u/s. 161 Cr.P.C. or not. The charge had been handed over to him after 810 days of the trap. It is thereafter he commenced his investigation. But on the day of raid he had gone to the spot as some mob had been collected over their and he stood stationed outside the office to control the mob. He also denied the suggestion that he attempted to falsely implicate the accused on 19.06.06. He denied the suggestion that to mask his activity on 19.6.06 and 20.06.06 he was making a false averment of visiting the spot of the trap to control the mob. He admitted that Ex.PW4/D1 contained his handwriting and signatures. He had marked presence of the witnesses. He volunteered that he had done so as duty officer was not available. He denied the suggestion that he had picked up planted GC notes from the waste paper basket and projected them as having been recovered over the towel lying on seat of the accused. In response to question as to why the witnesses were directed to appear in CBI office at 8.30 a.m. on 20.06.06, he replied that in routine public witnesses are directed to report at CBI office at 8.30 in the morning. He claimed that he did not remember if he had recorded statement of the TLO or not. Lastly he denied the suggestion that accused had been falsely implicated by him and the washes had been manufactured by him.
CC No. 20/08 CBI Vs. Sita Ram pg 31 of 57
32
19. The last witness to be examined by the CBI was Mr. S.Q. Ali, DSP CBI. He was assigned S. No. 14. He deposed that he was working as Inspector CBI in 2007. Investigation of the case was transferred to him from N.K. Jain in first week of April 2007. He examined Sh. NVN Krishnan and Inspector Prem Nath and recorded their statements. He also got prepared transcription of the conversation. They bore his signatures. After obtaining sanction for prosecution, he filed charge sheet Ex.PW14/A. In his crossexamination by learned counsel for the accused, he claimed that he had not sent draft sanction to the competent authority. Sanction had been received by dak. Cassette from which transcription was prepared was not sealed since it was investigation copy. The brass seals are issued by the Malkhana of CBI and there was no record on the court file reflecting name of the CBI officers to whom brass seal used in this case was officially issued. He lastly denied the suggestion that he had merely toed the line of investigation drawn by his predecessor.
20. After closing of prosecution evidence, statement of the accused was recorded u/s 313 Cr.P.C. wherein he claimed that transcript had been provided to the examiner of the cassettes and his report was defective. During negotiations, discussion about money does take place. Complainant CC No. 20/08 CBI Vs. Sita Ram pg 32 of 57 33 Ajit Singh was in CBI office on 19.06.06. In the court Ajit Singh had falsely identified his voice. His specimen voice was never taken. The minutes of the meeting held in the CPWD office before the trap were incorrect. He also claimed that he was not sure if B.S. Samlok had visited his office or not. When accused was asked that his hand washes, wash of the towel and portion of the pant were taken and all the solutions turned pink, he simply replied that it was incorrect. He claimed that complainant had grudge against him and so he (complainant) along with N.K. Jain got him arrested. The digital recorder of KCR was not produced by CBI. No document had been produced reflecting retrieval of any article from Malkhana of CBI. He claimed to be innocent.
21. He examined nine witnesses in his defence.
22. DW1 was Sh. Sudhir Kumar Chaturvedi who was posted as Asstt. Engineer in CPWD Pusa. He claimed that he knew the accused as he had worked with him from 21.06.05 to March 2009. He deposed that on 20.06.06 at about 1.30/ 2.00 p.m., peon came to his room and gave him a message. Then he went to room of accused Sita Ram Gupta. He saw N.K. Jain sitting on chair of accused Sita Ram, while Sita Ram was sitting on CC No. 20/08 CBI Vs. Sita Ram pg 33 of 57 34 visitor's chair. He handed over papers to N.K. Jain. He went to CBI Office subsequently and his statement was recorded. After about 10 days, he again went to CBI office along with auditor, accounts officer and cashier and they were again examined by N.K. Jain. In his cross examination by learned PP he could not recall his any activity of 19.06.06 or 21.06.06. Upon being asked by the court, he could not tell day of week on which his children or grand children were born. He also could not tell the day of the week on which 26.01.2012 fell. He claimed that he had not signed any document prepared by CBI.
23. The second witness examined by the accused was Sh. Vijay Kumar. He deposed about order No. 73/12/2005 dt. 15.12.05 of Central Vigilance Commission.
24. The third witness was Sh. Shakti Singh from NCCF. According to him as per office record Ram Swaroop Yadav had visited CBI office on four occasions between 28.09.05 to 06.07.06.
25. The next witness to be examined by the accused was Balbir Singh an exdriver of CPWD. He claimed that he knew accused who was his CC No. 20/08 CBI Vs. Sita Ram pg 34 of 57 35 officer. On 20.06.06 he took the accused to a site at Pusa and then to DMS Shadipur Depot in official jeep. They came back around 11/ 11.30. After some time he went office of the accused. Somebody else was sitting on his chair, while accused was sitting on visitors' chair. At about 8 /8.30 in the night, he came to know that the person sitting on chair of Sita Ram was Mr. Jain. He then dropped Sita Ram and one or two more persons at CBI office and requested Jain to sign the log book which he refused. Upon being crossexamined by Ld. PP, witness was unable to recall his activities on 19.06.06 and 21.06.06. He also could not recollect day of the week of 15.03.11. He claimed that they do not mention name of the private individual in the log book.
26. DW6 was Sh. Charanjit Pasrija Executive Engineer from CPWD. He produced original register of interest bearing securities. According to it at Col. No. 22 there was a note which reflected that performance guarantee furnished by M/s. Ajit Construction Co. consisting of FDR had been forfeited on 16.02.2010. The forfeiture was because of letter dt. 06.12.05. The copy of the letter was Ex.DW6/A, while copy of the corresponding page of the register was Ex.DW6/B. According to main cash book earnest CC No. 20/08 CBI Vs. Sita Ram pg 35 of 57 36 money of Ajit Construction Co. had been forfeited. Its photocopy was Ex.DW6/C. Total sum of Rs.99,567/ had been deducted/recovered from Ajit Construction Co. Upon being crossexamined by Ld PP witness admitted that all these documents about which he deposed had been prepared before he joined the division. He was unable to tell name of the person who had written them and claimed that it would have been the cashier.
27. DW7 was Sh. T.C. Meena LDC from CBI. He produced general diary of Anti Corruption Branch and original visitors register.
28. DW8 was Sh. Narender Kumar Head Constable from CBI. He produced malkhana register and claimed that there was no entry pertaining to 19.06.06. However, there was entry regarding deposit of articles on 20.06.06 and 21.06.06. He also deposed that no register was maintained in the malkhana regarding issuance of CBI brass seals, trap kit etc.
29. The last witness to be examined by the accused was Ms. Neeru from Truth Lab Bangalore. She deposed about digital voice recorder and the technical aspects of recordings, conversations, transferring the data etc. CC No. 20/08 CBI Vs. Sita Ram pg 36 of 57 37
30. I have heard Ld. PP and Learned counsel for the accused. I have also gone through the written submissions and bunch of judgments cited by learned counsel.
31. First of all I would like to refer to recordings done by CBI in the instant case and the transcriptions which had been prepared from them. After complainant had lodged his complaint, trap team was organized. A digital recorder was arranged and voice of independent witness was recorded therein. The digital recorder was given back to the complainant for the purpose of recording the conversation between him and the accused. A transmitter was inserted in his pocket to record the conversation, while the recording instrument was with CBI. After apprehension of the accused, the recorder was taken back. It was played and conversation was transferred to a new cassette. It was then sealed. Similarly the conversation recorded in the instrument which was with CBI office was played and transferred to audio cassette. In the court, cassettes were played and witness identified the voice. Transcriptions were also prepared during course of investigation from the said cassettes. They were filed in the Court. The cassettes were also played in the Court. They were exhibited. Though accused did not object to playing of the cassettes, he CC No. 20/08 CBI Vs. Sita Ram pg 37 of 57 38 made allegations of tampering with them. Hon'ble Supreme Court in R.V.E. Ventakachala Goundar Vs. A.V. And V.P. Temple:AIR 2003 SC 4548 had held that objection to admissibility of the evidence should be taken when it is tendered and not subsequently. With due respect, I would like to submit that the cassettes which were played were not in accordance with Evidence Act. ChapterV of the Evidence Act 1872 deals with documentary evidence. Admittedly the cassettes which were played in the court were not primary evidence. They were secondary evidence. As per Section 65 (c), secondary evidence can be given when the original has been destroyed or lost or for any other reason not arising from default or neglect of the party. For leading secondary evidence permission of the court is mandatory. If loss of the original document has not been proved, secondary evidence is inadmissible. In the case in hand there is not a single word talking of loss of original digital recorders or the recordings therein. Recently in case titled as U.Sree Vs. U. Sriniwas: 2012 XII AD SC 538 Hon'ble Apex Court went through large number of previously decided cases and held that secondary evidence relating to contents of the document is inadmissible until non production of the original is accounted for. So the subsequent recordings in the cassettes could not have been CC No. 20/08 CBI Vs. Sita Ram pg 38 of 57 39 proved by the CBI. I have thus, no option left but to discard the evidence regarding cassettes which were played in the court. As the transcripts were prepared from those cassettes, they too will have to be discarded and not relied upon.
32. Ld. Counsel for the accused also filed summary in brief of the arguments. In the summary he took up first issue of law as to how the evidence forming the oral testimony of the witnesses, amongst themselves and in conjecture with the record made by the police has to be considered and evaluated?. He relied upon large number of judgments which are as follows: In Suraj Singh Vs. State of UP: JT 2008(8) SC 411 it was held that evidence must be tested for its inherent consistency and inherent probability of the story. Consistency with account of other witness held to be credit worthy, consistency with the undisputed facts, the credit of the witness and their performance in the witness box. In Magesh Vs. State of Karnataka: AIR 2010 SC 2768 it was held that there must be string that should join the evidence of all the witnesses and thereby satisfying the test of consistency in evidence amongst all the witnesses. In Kali Ram Vs. State of H.P.: 1973 SCC (Cri.) 1048 it had been held that if some material CC No. 20/08 CBI Vs. Sita Ram pg 39 of 57 40 is brought on record consistent with innocence of the accused which may reasonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal. In R.P. Kapoor Vs. State of Punjab: AIR 1973 SC 498 it was held that Court should look for independent corroboration before convicting the accused persons on the evidence of trap witnesses. In Sat Paul Vs. Delhi Admn: AIR 1976 SC 294 it had been held that after a witness had possible motive to harm the accused , it would be hazardous to accept their testimony in absence of corroboration on crucial points. In Toran Singh Vs. State of M.P.:AIR 2002 SC 2807 it had been held that view of the trial court was not correct in brushing aside the infirmities and improbabilities brought out with entire evidence of prosecution rested on testimony of sole eye witness. In Karupanna Thevar & Ors. Vs. State of Tamilnadu: AIR 1976 SC 980 it was held that hostile witness may not be rejected outright but the court should be slow to act on the testimony of such a witness. In Avtar Singh Vs. State of Punjab : 2006 (IX) AD (SC) 335 it had been held that rule of caution must strictly be applied since prosecution case rested on evidence of two eye witnesses who were inimically disposed towards the accused. In the said case Hon'ble Supreme Court had observed that enmity and bad CC No. 20/08 CBI Vs. Sita Ram pg 40 of 57 41 blood between rival groups is established beyond doubt. Reference was also made to case G.V. Nanjundiah Vs. State :1988 SCC (Cri) 7. it was claimed that in the case in hand DW3 had visited CBI office four times in 11 months and G.P. Singh visited CBI office seven times in two years. In M. Abbas Vs. State of Kerala: 2001 V AD (SC) 100 it was held that court cannot convict a person only on suspicion or probability and in the said case prosecution had failed to lead any unimpeachable evidence. In State of M.P. Vs. Rakesh Gandhi, Hon'ble Apex Court had held that prosecution had failed to prove demand and illegal gratification by the accused as he was not authorized to issue no objection certificate.
33. Facts of no two cases are identical. Court must keep in mind the law laid down in different cases by Hon'ble Supreme Court and Hon'ble High Courts. It should then examine the facts of the case in hand in the light of law so laid down .
34. In G.V.Nanjundiah's case, Hon'ble Supreme court had held that Deputy Superintendent of Police had called R.L. Verma and R.N. Khanna from their offices for making them trap witnesses and so, they could not be CC No. 20/08 CBI Vs. Sita Ram pg 41 of 57 42 termed as independent witnesses. Here in case in hand, if we take a look at letter Ex.PW4/D1, we find it written by Dy. Manager (Vigilance), NCCF. It is addressed to Superintendent of Police, CBI. Its subject was requisition for deputing two officers on secret official duty. It talked about deputing G.P. Singh and Ram Swaroop Yadav to the CBI office. So it is clear that CBI had not called for G.P. Singh and R.S. Yadav from their offices. They had asked for two officers for secret official duty. In response to the fax message of CBI, G.P. Singh and R.S. Yadav were deputed to attend CBI office by their own office namely NCCF. So they cannot be treated as interested witnesses or witness specially called to witness the trap proceedings. They had been sent by NCCF on random basis on its own. So, we can safely conclude that they were uninterested witnesses procured from Government Department to witness trap proceedings. They could have been called to witness the proceedings in the present Sita Ram's case or in case involving any other bribe seeker.
35. Rarely, we come across corroboration to the version of complainant regarding demand of bribe by the accused. Complainant is most of the times all alone at the time of demand. Demand has to be deduced and inferred from the circumstances of the case. In Ram Chander Vs. State :
CC No. 20/08 CBI Vs. Sita Ram pg 42 of 57
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2009 Cri. L.J. 4058, Hon'ble Delhi High Court had held that demand could be proved by the testimony of the complainant as well as from the complaint. Presumption as to the demand of bribe could also be drawn if tainted money is recovered from the possession of the accused. Here in the case in hand, if there was no "demand" then there was no occasion for the complainant to visit CBI Office and lodge complaint. If there was no "demand", then there was no occasion for the accused to have accepted and counted currency notes. If there was no "demand", then there was no reason for him to keep those notes on his chair under his left thigh.
36. Learned counsel for the accused in his oral submissions as well as in summary in brief of the arguments had claimed that negotiations which took place for the justification process were misconstrued by the complainant. During negotiations word "percentages" are also spoken.
37. In S. Bose Vs. State of Bihar: AIR 1968 SC 1292, Hon'ble Apex Court had held that:
"Therein this court held that the burden resting on the accused person in such a case would not be as light as CC No. 20/08 CBI Vs. Sita Ram pg 43 of 57 44 placed on him u/s. 114 of Evidence Act and the same cannot be held to be discharged merely by reason of the fact that the explanation offered by him is reasonable and probable. It must further be shown that the explanation is true one. ....
..... In other words the nature of the burden placed on him is not the same as that placed on prosecution which must not only prove its case but prove it beyond reasonable doubt."
38. It is true that percentages indeed are spoken during negotiation and justification process, but complainant was not a lay man. He was working as contractor for the last many years. He would have been fully conversant with the terms used during negotiation. He would be intelligent enough to distinguish between justification and demand of bribe. Accused has tried to put forth an explanation that he had not demanded money but for justification process term of percentage was used. Even if such talks do take place during negotiations, there is no occasion for huge payment being made to Executive Engineer by a contractor in cash specially so when the CC No. 20/08 CBI Vs. Sita Ram pg 44 of 57 45 contractor has made a bid and has to be awarded the contract. Executive Engineer has no business to accept money from a contractor who has made a bid before him.
39. So the explanation offered by the accused must be true one. In the case in hand, there was no scope of any misunderstanding by the complainant. Complainant was an old hand and would have been well aware of working of government office and particularly the accused. Rather he at one place in his testimony had claimed that he had not paid bribe to the accused in past, with the result his full payments were not made.
40. The second issue raised by Ld. Counsel was that fundamental defects in the case of prosecution which go to the roots of the case as it reflects the fractured case thereby causing prejudice to the accused. The first defect was regarding requisition of independent witnesses. According to him complainant had visited CBI office on 20.6.06 with a written complaint but the witnesses had attended CBI office not only on 20.06.06 but also on 19.06.06. They had been requisitioned vide order dt. 16.6.06. In this regard, I would like to submit that public witnesses are summoned CC No. 20/08 CBI Vs. Sita Ram pg 45 of 57 46 to the CBI office in routine regularly. Even if there is no complaint pending before it, the public servant/witnesses from government office are asked to attend CBI office so that their service may be utilized as and when required and CBI does not have to rush out looking for the witness on the 9th hour. I have already dealt with this aspect earlier and had observed that deputing of G.P. Singh and R.S. Yadav was at the instance of NCCF and they had not been summoned by name specially by CBI.
41. Another objection taken by learned counsel for the accused was regarding participation in the proceedings by N.K. Jain. According to CBI N.K. Jain was entrusted with investigation of the case after about ten days of the arrest. However, in his crossexamination he had admitted that he was present at the office of the accused on the date of trap but it was claimed that it was for controlling crowd. Other public witness had claimed that N.K. Jain was throughout present and had actively participated in the proceedings. Now, should the court throw out the entire evidence, lock stock and barrel merely because CBI has allegedly withheld role of N.K. Jain. N.K. Jain also had made an endorsement on the requisition form that two public witnesses had attended office on 19.06.06 and 20.06.06. N.K. Jain had claimed that as duty officer was not available CC No. 20/08 CBI Vs. Sita Ram pg 46 of 57 47 in the office, he had made such endorsement.
42. Even if N.K. Jain had participated in the proceedings, I fail to understand as to how did it adversely affect merits of the case. No prejudice was caused to the accused by withholding role of N.K. Jain. N.K. Jain had no vested interest in the matter. He was not inimical towards Sita Ram. Even if N.K. Jain had admitted in his testimony that he had participated in the entire trap proceedings, it would not have affected case of CBI regarding demand of bribe or acceptance of bribe by the accused. Should the prosecution witnesses be disbelieved only because of withholding of role of N.K. Jain? In case titled as Shailender Kumar Vs. State of Bihar: (2002) 1 SCC 655, Hon'ble Apex Court held as follows:
"Bare reading of the aforesaid section reveals that it is of a very wide amplitude and if there is any negligence, laches or mistakes by not examining material witnesses, the court's function to render just decision by examining such witnesses at any stage is not, in any way, impaired. This court in Rajendra Prasad Vs. Narcotice Cell :
(1999) 6 SCC 110 observed:
CC No. 20/08 CBI Vs. Sita Ram pg 47 of 57
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"After all, function of the criminal court is
administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better".
43. Coming back to the case in hand it seems that N.K. Jain had indeed participated in the proceedings, but merely because his role had been curtailed in the evidence led, should not lead the court to throw out testimony of the other public witnesses which is otherwise quite convincing. We should not be counting the errors committed by prosecution just to discard the unflinching evidence led otherwise.
44. Ld. Counsel for the accused submitted that there was overwriting in the endorsement made on the complaint. Date 19.06.2006 has been changed to 20.06.06. So according to Ld. Counsel there was no occasion for appearance of the public witnesses in the CBI office in connection with this case prior to 20.06.06. He submitted further that even requisition for the witnesses was sent on 16.06.06 and N.K. Jain had given his certificate on the requisition that public witnesses had attended CBI office on CC No. 20/08 CBI Vs. Sita Ram pg 48 of 57 49 19.06.2006 and 20.06.06. He submitted that this indicates that accused was framed up.
45. I tend to agree with Ld. Counsel on the point that indeed date 19.06.06 has been changed to 20.06.06. But to my mind, it does not affect case of CBI. I have already discussed above that it is general practice of CBI to summon witnesses from government office and public companies in advance. This is to avoid last minute hassles in procuring presence of public witnesses. If we again take a look at Ex.PW4/D1, we find it is a letter written by DY. Manager (Vigilance) of NCCF dt. 16.6.06. It is addressed to SP CBI. It refers to a fax message sent by CBI to NCCF. In response to the fax message, they had deputed G.P. Singh and R.S. Yadav to attend CBI office on 19.6.06 at 11 a.m. Indeed there is an endorsement on the said letter made by N.K. Jain regarding presence of both the officials on 19.06.06 and 20.06.06. So, what it indicates is that both the public witnesses attended CBI office on 19.06.06. No proceedings in any case had taken place. They had also attended CBI office on 20.06.06 and had participated in the present trap. In letter Ex.PW4/D1 it is not mentioned that witnesses had been summoned or had been deputed to attend CBI office in case of CBI Vs. Sita Ram. Only endorsement made by CC No. 20/08 CBI Vs. Sita Ram pg 49 of 57 50 N.K. Jain on 20.06.06 while marking attendance of the witnesses gives reference of the present case.
46. Ld counsel further submitted that there was no motive for demanding of bribe. He relied upon case of Babu Lal Bajpai Vs. State of UP : AIR 1994 SC 1538. Hon'ble Supreme Court in the said case had held that trial court had recorded a finding that there was no motive for demanding and accepting bribe because no bill was pending before the accused for preaudit and no independent witness had been examined in the case. He further submitted that performance guarantee (PG) was yet to be issued. Accused had not demanded any bribe for issuance of performance guarantee (PG). On the other hand Ld. PP submitted that issuance of performance guarantee (PG) was a mere procedure. At the threshold, I would like to make it clear that Hon'ble Apex Court had held in Omwati Vs. Mahender Singh & Others: 1998 SC 249 that it was not necessary for the prosecution to prove motive to procure conviction. It is true that money was not demanded for issuance of performance guarantee (PG). It was demanded for awarding of contract. Before awarding contract PG was to be issued by the accused himself under his signatures. It was just a part CC No. 20/08 CBI Vs. Sita Ram pg 50 of 57 51 of larger transaction. After receipt of bribe, PG which was already prepared would have been signed and issued to the complainant. In case title as B.K. Mondal Vs. State of West Bengal : AIR 2010 SC 3638, it was held that motive was a thing which was primarily known to the accused and it may not be possible for the prosecution to explain it. The issue of motive becomes totally irrelevant when there is direct evidence of trustworthy witness regarding commission of crime. So, absence of proving of motive does not affect evidence of prosecution witnesses, if eye witnesses are reliable. As I have already observed above issuance of performance guarantee was a mere procedure. Accused had indeed sought bribe to award the contract to the complainant. Ld. Counsel for the accused had claimed that accused had been got trapped by the complainant as he had forfeited his earnest money and Rs. 99,567/ had been recovered from M/s Ajit Construction Co. I would like to submit that FDR had been actually forfeited on 16.02.2010. That was many years after the trap. So it cannot be treated as a motive for the complainant to have got the accused trapped. Moreover as I have already observed that it is a settled law that motive loses its significance if eye witnesses are convincing and trustworthy. Hon'ble Judges in the above cited case had held :
CC No. 20/08 CBI Vs. Sita Ram pg 51 of 57
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"It is also settled law that the motive loses all its importance in a case where direct evidence of eye witnesses is available, because even if there may be a very strong motive for the accused person to commit a particular crime, they cannot be convicted if the evidence of eye witness is not convincing. In the same way even if there may not be an apparent motive but if evidence of the eye witness is clear and reliable, the absence or inadequacy of motive can not stand in way of conviction".
47. In his statement u/s 313 Cr.P.C. no claim was made by the accused that complainant held grudge against him and thus he had motive for getting him trapped.
48. Mr. Sharma submitted that the evidence led by the prosecution should be consistent throughout. He drew attention of the court to handing over memo. In handing over memo it was mentioned that complainant informed that accused would not accept bribe amount in presence of any other person and so it was decided not to send any shadow witness along with the complainant. A normal complainant who approaches CBI to lodge CC No. 20/08 CBI Vs. Sita Ram pg 52 of 57 53 a complaint is not assumed to be in knowledge of their procedures. One of the procedure followed by the CBI is deputing an independent witness to act as shadow witness. According to Mr. Sharma complainant should not in normal course have the knowledge that a shadow witness was to be deputed and that is why he told CBI officers not to depute a shadow witness with him. I would like to submit that complainant PW6 Mr. Ajit Singh Yadav in his crossexamination had claimed that he had visited CBI office on 19.06.06. He had also claimed that he met some lower rank CBI official who apprised him of the procedure for making complaint and asked him to come next morning. So there was nothing strange about complainant having knowledge of the procedure followed by CBI. After knowing it complainant had expressed his apprehension that accused would not accept money if somebody accompanied him (PW6 Complainant).
49. Ld. Counsel for the accused also pointed out various contradictions in the testimony of different witnesses examined by the prosecution. While PW G.P. Singh claimed that money had been thrown in the dustbin by the accused, other witness claimed that it was recovered from the chair beneath towel where it had been kept by the accused. It is no doubt true CC No. 20/08 CBI Vs. Sita Ram pg 53 of 57 54 that there are few conflicting versions regarding recovery.
50. PW G.P. Singh in his examination in chief had claimed that accused had thrown GC notes in dustbin before his entry in the room. He said that probably N.K. Jain had taken out the notes from dustbin. But in crossexamination he claimed that he did not know if the GC notes had been taken out from the dustbin by Mr. Jain. I tend to discard the story of throwing of the GC notes in dustbin as dished out by G.P. Singh because admittedly G.P. Singh had not witnessed throwing of the GC notes in dustbin. He had stated that before he had entered, accused had thrown the notes in dustbin. So we can safely discard this part of his testimony. At times witnesses tend to exaggerate the things. It becomes duty of the court to fish out truth from their deposition.
51. In case titled as State of U.P. Vs. Krishna Master : AIR 2010 SC 3071 it was held:
"Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching CC No. 20/08 CBI Vs. Sita Ram pg 54 of 57 55 importance to some technical error committed by I.O. not going to the root of the matter would not ordinarily permit rejection of evidence as a whole......."
52. In an earlier case titled as State of U.P. Vs. Anil Singh : 1988 SCC 686 Hon'ble Apex Court had held that invariably witnesses add embroidery to the prosecution story. But that is no ground to throw the case over board. If there is truth in the main, the case should not be rejected. The Hon'ble Court had further held that it was duty of the Court to cull out nuggets of truth from the evidence unless there was reason to believe that inconsistencies or falsehood are so glaring as utterly to destroy confidence of the witness.
53. In Krishna Mochi Vs. State of Bihar:(2002) 6 SCC 81 Hon'ble Supreme Court held:
" The court while appreciating the evidence should not loose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in an ivory tower. I find that in recent times the tendency to acquit an accused easily is galloping fast. It is very easy CC No. 20/08 CBI Vs. Sita Ram pg 55 of 57 56 to pass an order of acquittal on the basis of minor points raised in the case by a short judgment so as to achieve the yardstick of disposal . Some discrepancy is bound to be there in each and every case which should not weigh with the court so long it does not materially affect the prosecution case. In case discrepancies pointed out are in the realm of pebbles, the court should tread upon it, but if the same are boulders, the court should not make an attempt to jump over the same."
54. A judge should not be a silent spectator just watching the proceedings. He should be active and should probe the minds of the witnesses and try to gauge the reasons for their volte face. He should not meekly accept whatever is being dished out by the witnesses.
55. Now coming back to case in hand the only major discrepancy court has come across is regarding throwing of the money in dustbin by the accused. The witness who spoke about throwing of the money was G.P. Singh. I have already discarded that part of his testimony and have also assigned reasons for doing so. Rest of the testimony of the witness G.P. CC No. 20/08 CBI Vs. Sita Ram pg 56 of 57 57 Singh deserves to be accepted. Similarly testimony of other public witness R.S. Yadav also withstood the extensive cross examination by Ld. Counsel. Their testimony clearly corroborates version of the complainant regarding acceptance of bribe and its subsequent recovery from the accused.
56. Both the independent witnesses had claimed that tainted GC notes had been kept on chair under left thigh/hip of the accused. Under no circumstances the tainted GC notes should have landed up on chair of the accused smearing his pant and towel in the process. If the money had been planted while accused was in custody of CBI, there was no way by which pant of the accused would have come in contact with phenolphthalein powder. Even towel would not have come in contact with the powder. The pant wash and towel wash indicate that the tainted GC notes had been kept under the left thigh of the accused. This would go to show that accused after accepting the GC notes with his hand had kept them under his left thigh of the chair. PW Ram Swaroop Yadav had claimed that CBI inspectors had caught hold of hands of the accused. This would indicate that indeed CBI officers were following the rules and money was not simply planted. Had they desired to plant GC notes, there was no need to CC No. 20/08 CBI Vs. Sita Ram pg 57 of 57 58 hold the accused from the wrist. There was also no need for them to invite colleague of the accused namely B.S. Samlok to witness the proceedings. B.S. Samlok had also denied suggestion of Ld. Counsel that he had not witnessed the events narrated in the recovery memo Ex. PW4/B which gave details of the proceedings after acceptance of bribe by the accused. He had also supported prosecution and claimed to have visited office of the accused after the raid. He had deposed that when he went inside room of the accused he saw two officers of the CBI holding both the wrists of the accused. This would indicate that CBI officers were going according to the book and had not just planted the money. So there is no reason for the court to discard testimony of colleague of the accused.
57. The accused had handled the tainted GC notes. In his statement u/s 313 Cr.P.C., question was put to him regarding the solutions turning pink, he simply replied that it was incorrect. He offered no explanation as to how the solutions had turned pink.
58. I have reason to discard testimony of DW10 Sudhir Kumar Chaudhry, also posted in the same office. He deposed that when he went to room of the accused he saw N.K. Jain sitting on chair of accused Sita Ram, CC No. 20/08 CBI Vs. Sita Ram pg 58 of 57 59 while Sita Ram was sitting on visitor's chair. Even accused did not make such a claim in his statement u/s 313 Cr.P.C. He simply claimed that he was held by hands and made to stand aside. This would indicate that Sudhir Kumar Chaudhary is not a truthful witness.
59. Accused had also examined Balbir Singh driver of his own office. He claimed to have driven the CBI team in the night to its office. It indeed is strange. CBI had their own vehicles with them. They had no reason to borrow vehicle from the office of the accused. Moreover no log book was produced in the Court. Balbir Singh had claimed that N.K. Jain had refused to sign the log book. There was no need to mention name of the passenger in the log book but atleast entry could have been made regarding visit of the vehicle to CBI office. Log book could have been summoned by the accused during testimony of the witness, had there been any truth in the claim made by the witness. So claim of Balbir Singh that he had visited office of the accused and had seen somebody else sitting on Sita Ram's chair and Sita Ram sitting on visitor's chair should be discarded.
60. It is come on record that accused had delayed negotiations with the lowest bidder and the work had not been awarded till 20.6.06. It should CC No. 20/08 CBI Vs. Sita Ram pg 59 of 57 60 have been awarded by 11.05.06. The work of Executive Engineer is awarded within 15 days of scrutiny but accused delayed the matter. This would indicate malafide intention on the part of the accused.
61. Recently in case titled as Dr. Subramanian Swamy Vs. Dr. Manmohan Singh my Lord Mr. Justice A.K. Ganguly held:
" Therefore, the duty of the court is that any anti corruption law has to be interpreted and worked out in such a fashion as to strengthen the fight against corruption. This is to say in a situation where two constructions are eminently reasonable, the court has to accept the one that seeks to eradicate corruption to the one which seeks to perpetuate it."
62. Now to sum up case of the prosecution, it has been established beyond all doubts on record that accused who was an Executive Engineer had sought bribe of Rs. 7000/ from the complainant for awarding of work contract. Though the bid of the complainant was the lowest and the work should have been awarded within 15 days of scrutiny, accused did not do the needful and delayed the matter to extort bribe. The evidence of the CC No. 20/08 CBI Vs. Sita Ram pg 60 of 57 61 witnesses is consistent throughout barring few exceptions here and there which are of minor nature and deserve to be ignored. I, therefore hold that prosecution has been successful in making out its case regarding demand and acceptance of bribe by the accused Sita Ram from complainant Sh. Ajit Singh Yadav. I, therefore, convict him U/s 7 & 13(1)(d) r/w 13(2) of P.C. Act.
Announced in open Court
on February 04, 2013 (PRADEEP CHADDAH )
Special Judge:CBI01
Central District. Delhi
CC No. 20/08 CBI Vs. Sita Ram pg 61 of 57
62
IN THE COURT OF SH. PRADEEP CHADDAH:
SPECIAL JUDGE: CBI01, CENTRAL DISTRICT. DELHI
CC No. 20/08 RC : 21(A)/06
PS :CBI/ACB/ND
U/s : 7 & 13 (1) (d) r/w 13(2)
of P.C. Act, 1988
CBI Vs. Sh. Sita Ram
S/o Late Sh. Lekhi Ram,
R/o. CP186, Pitam Pura, Delhi.
( the then Executive Engineer, Construction
Division No. IV, CPWD, IARI Complex, Pusa, New
Delhi.)
ORDER ON SENTENCE
8. This Court had vide its judgment dated 04.02.13 found the convict guilty U/s. 7 and 13(1) (d) r/w 13(2) of PC Act.
9. I have heard Sh. Praneet Sharma, Ld. Sr. PP for CBI and Sh. H.K. Sharma Ld. Counsel for convict at length.
10. Sh. Praneet Sharma, Ld. Sr. PP prayed for taking of strict view of CC No. 20/08 CBI Vs. Sita Ram pg 62 of 57 63 the matter and granting of exemplary punishment to the convict. He further prayed that sentences which should be awarded to the convict should run consecutively. On the other hand, Ld. Counsel for the convict prayed for taking of lenient view. He claimed that convict is 62 years old. His wife is infirm. He has two sons but none of them are staying with him.
11. The allegations proved against the convict are quite serious in nature. While working as Executive Engineer in CPWD, he sought bribe of Rs.7000/ from the complainant which was approximately 2% of the tender amount which had been awarded to the complainant.
12. Hon'ble Supreme Court in Raman Lal Vs. State of Bombay :AIR 1960 SC 961 had held:
" For a public servant to be guilty of corruption is a very serious matter and the Courts would not look upon it with undue leniency."
13. I have given my considered thought. Convict is 62 years old CC No. 20/08 CBI Vs. Sita Ram pg 63 of 57 64 retired public servant. Court must make an effort to strike balance between interest of society and age and related circumstances of the convict. There is rampant corruption in almost all government departments and CPWD is no exception to it. Not a single sheet of paper moves until and unless the palms are greased. Not a single tender can be awarded or payment released until the officials incharge are suitably awarded by the public. Keeping in mind his age and back ground, I sentence convict Sita Ram to undergo three years R.I. U/s 7 of P.C. Act . In addition, he shall be paying fine of Rs. 1,00,000/ and in default of payment of fine, he shall be undergoing S.I. for three months. I also sentence him to undergo RI for three years U/s 13 (1) (d) r/w. 13(2) of P.C. Act. In addition, he shall be paying fine of Rs. 1,00,000/ and in default of payment of fine, he shall be undergoing S.I. for three months.
14. The request made by Learned Sr. PP to the effect that sentences be ordered to run consecutively is declined. Both the sentences of the CC No. 20/08 CBI Vs. Sita Ram pg 64 of 57 65 convict shall run concurrently. He shall also be given benefits of period undergone as under trial (if any).
Announced in open Court
on February 5 , 2013 ( PRADEEP CHADDAH )
Special Judge:CBI01
Central District. Delhi
CC No. 20/08 CBI Vs. Sita Ram pg 65 of 57