Delhi District Court
Title : State (Cbi) vs . on 30 October, 2013
IN THE COURT OF MS. SWARANA KANTA SHARMA, SPECIAL JUDGE, CBI05,
PATIALA HOUSE COURTS, NEW DELHI.
CC No. : 53/12
RC no. : DAI/2012A0011/CBI/ACB/ New Delhi
Unique Case ID no. : 02403R0034352012
Title : State (CBI)
Vs.
1.Naresh Kumar S/o Late Sh. Nafe Singh, R/o A1/8, Type III, Police Line, Pitam Pura, New Delhi110088.
Permanent Address: VPO Chamarian, Tehsil & District Rohtak, Haryana124001.
U/s : 7, 13(2) r/w Section 13(1)(d) of P.C. Act 1988 & Section 201 IPC Date of Institution : 28.5.2012 Date of reserving order : 29.10.2013 Date of pronouncement : 30.10.2013 Appearance:
Sh. Akshay Gautam, Ld. Senior PP for CBI.
Sh. R.M. Tufail, Advocate, Ld. Counsel for accused Naresh Kumar.
J U D G M E N T
1. The instant case was registered on the basis of a written complaint dated 03.4.2012 filed by Sh. Hitesh Garg. It is alleged that a case was pending against Sh. Madan Lal Garg, father of the complainant, Hitesh CC No. 53/12 State (CBI) Vs. Naresh Kumar Page no.1 of 45 Garg at Police Station Palam Village. The investigating officer, accused Naresh Kumar (SubInspector) was demanding Rs. 10,000/ from the complainant for helping out his father in the case and he had threatened that if the bribe was not paid, then he will further implicate his father Madan Lal Garg in the said case.
2. Accused Naresh Kumar had appeared in the Court and copies of documents, as required by the Section 207 Cr.P.C., were supplied to him, to his satisfaction.
3. The charge against the accused Naresh Kumar under Section 7 read with 13(1)(d) of Prevention of Corruption Act, 1988 and Section 201 IPC was framed to which he pleaded not guilty and claimed trial.
4. Now, the points for determination are :
(i) Whether the accused, being a public servant, demanded and accepted bribe from the complainant in the discharge of his official duties?
(ii) Whether the bribe amount was recovered from the accused?
(iii) Whether the accused obtained the bribe amount by corrupt or by illegal means or by otherwise abusing his official position?
Section 7 of the P.C. Act provides as under:
"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 CC No. 53/12 State (CBI) Vs. Naresh Kumar Page no.2 of 45 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 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 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.....".
Section 13 of the P.C. Act provided as under:
(1) A public servant is said to
commit the offence of criminal
misconduct ......................................................... .................................................................(d) if he
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantages;
or
(ii) by abusing his position as a public
servant, obtains for himself or for any
CC No. 53/12 State (CBI) Vs. Naresh Kumar Page no.3 of 45
other person any valuable thing or
pecuniary advantage; or
(iii) while holding office as a public
servant, obtains for any person any
valuable thing or pecuniary advantage
without any public interest....."
(2) Any public servant who
commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine."
Section 20 of the P.C. Act provides as under:
"Presumption where public servant accepts gratification other than legal remuneration : (1) Where, in any trial of offence punishable under Section 7 or Section 11 or Clause (a) or clause (b) of subsection (1) of Section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that CC No. 53/12 State (CBI) Vs. Naresh Kumar Page no.4 of 45 gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be without consideration or for a consideration which he knows to be inadequate.
(2) Where in any trial of an offence punishable under Section 12 or under Clause (b) of Section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7, or as the case may be, without consideration or for a consideration which he knows to be inadequate.
(3) Notwithstanding anything contained in subsections (1) and (2), the court may decline to draw the presumption referred to in either of the said subsections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption my fairly be drawn."
Section 201 IPC reads under: "Causing disappearance of evidence of offence, or CC No. 53/12 State (CBI) Vs. Naresh Kumar Page no.5 of 45 giving false information to screen offender -
Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention give any information respecting the offence which he knows or believed to be false;
If a capital offence.......Not relevant.
If punishable with imprisonment for life......Not relevant.
If punishable with less than ten years imprisonment and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to oneforth part of the longest term of the imprisonment provided for the offence, or with fine, or with both.
5. Let me examine the testimony of the material witnesses and the other documents filed before me in light of law and the case law to decide whether charges are proved against the accused or not.
6. CBI in support of their case have examined 15 witnesses.
7. PW 1 - Sh. Anil Kumar Ojha, Additional Commissioner of Police, SouthWest District, Delhi has stated that he has issued sanction CC No. 53/12 State (CBI) Vs. Naresh Kumar Page no.6 of 45 order dated 21.5.2012 under his signatures and he had identified the same. He stated that before according the sanction, he had carefully considered the facts and circumstances of the case registered by CBI against the said accused Naresh Kumar.
On being cross examined by Sh. R.M Tufail, Advocate, Ld. Counsel for accused Naresh Kumar he stated that as far as he remembers, he had received a letter from SSP/SP, CBI requesting for grant of sanction in the present case. It contained the request and the documents which were forwarded to him for appropriate action i.e. Sanction. He admitted that he had received a draft sanction from CBI office. He admitted that he had not mentioned the number and nature of the documents referred by him or perused by him before granting sanction. He denied that he had not applied his mind before granting sanction for prosecution of accused and had merely signed the draft said sanction sent by CBI. The said sanction sent by CBI is Mark X/DA.
8. PW2 Sh. Hitesh Garg, has stated that on 31.3.2012 his father was called by accused Naresh Kumar for inquiry of some case. His father was arrested by accused Naresh Kumar. He stated that he had received the information from accused Naresh Kumar regarding arrest of his father. He stated that he went to police station to meet his father and accused Naresh Kumar had told him that his father was being arrested by him in the matter pertaining to some money transaction. He stated that he had asked accused Naresh Kumar as to why his father was arrested and why he did not arrest the actual culprit i.e. Raj Nath Tiwari. He stated that his father was kept in the police station itself for two days by accused. He made a request to accused Naresh Kumar to release his father but he had refused his request. He stated that his relatives had advised him to lodge a CC No. 53/12 State (CBI) Vs. Naresh Kumar Page no.7 of 45 complaint to CBI regarding illegal arrest of his father. He stated that on 02.4.2012, he had gone to CBI office to lodge his complaint against accused Naresh Kumar. He stated that he had given his handwritten complaint to CBI officer against accused Naresh Kumar regarding illegal arrest of his father.
Attention of the witness was drawn to the document D2 which is handwritten complaint addressed to Superintendent of Police, CBI, ACB, Delhi by Hitesh Kumar. After going through the same he stated that it is not written by him. It was written by one CBI officer whose name he does not recollect. However, he identified his signatures thereupon same complaint was proved as Ex. PW2/A. He stated that CBI officer had asked him to come on 03.4.2012 with Rs. 10,000/. He stated that he had taken Rs. 10,000/ to CBI on 03.4.2012 and had given the same to some officer in CBI office. He stated that at about 1:101:30 pm, 1012 officers of CBI had accompanied him to PS Palam Village. He stated that they had returned Rs. 10,000/ to him before starting for the police station and had instructed me to hand them over to SI Naresh Kumar. He stated that he himself and CBI officer had shaken hands with the accused. Thereafter, he had spoken to accused about his father's case and had asked that in case they return the money of the complainant, will the case be closed by accused Naresh Kumar.
Ld. PP for CBI has requested that the witness may be declared hostile as he is not supporting the prosecution version.
On being cross examined by Ld. PP for CBI he has admitted that accused had made telephonic call over his mobile number and had apprised him with regard to arrest of his father. He denied that accused Naresh Kumar had demanded bribe of Rs. 10,000/ from him to release his father. He admitted that he had carried the written complaint alongwith CC No. 53/12 State (CBI) Vs. Naresh Kumar Page no.8 of 45 him to CBI office. He stated that Ex. PW2/A i.e. written complaint is in his own handwriting, however, he had copied it at the instructions of CBI officer who had given a written complaint to him. He stated that he had objected to lodging a false complaint against the accused and the CBI officer had asked him to leave their office. The witness was confronted with his statement recorded under Section 161 Cr.P.C Ex. PW2/B. The same was read over and explained to the witness who denied having made the statement to CBI. He has admitted his signatures on FIR the same was proved as Ex. PW2/C. He also identified his signatures on verification memo dated 03.4.2012 Ex. PW2/D. He identified his signatures on handing over memo Ex. PW2/E and recovery memo dated 03.4.2012 running into four pages Ex. PW2/F. He admitted that his mobile number was 9210483932 which he possessed at the time when he had gone to CBI office to lodge his complaint. He denied that on 03.4.2012, he was asked to put my mobile phone on loudspeaker to talk with accused Naresh Kumar for the recording of conversation in the said recorder. He identified voice identification cum transcription memo dated 11.5.2012 running into 12 pages Ex. PW2/G. He denied that his specimen voice was recorded in Ex. P3 and the same was played before him. He denied that any voice identification memo was prepared in his presence, or presence of the witnesses. He identified his signatures on the said memo at point A Ex. PW2/G. The witness also identified his signatures on the transcription at point A Ex. PW2/G1. He stated that the amount of Rs. 10,000/ was not asked by CBI officer to be brought with him. He denied that he had gone to CBI office with his written complaint Ex. PW2/A against accused Naresh Kumar. He denied that Ex. PW2/E i.e. Handing Over Memo was prepared in his presence or the demonstration as alleged in the said exhibit was done in CC No. 53/12 State (CBI) Vs. Naresh Kumar Page no.9 of 45 his presence at CBI office. However, he admitted that Handing Over Memo bears his signatures at point A on all the pages which he admitted.
He admitted that accused Naresh Kumar was arrested by CBI officers in his presence and he was brought to CBI office. He stated that he does not know as to on what basis, CBI officer had arrested accused Naresh Kumar. He denied that he had made the complaint against accused for demanding Rs. 10,000/ as bribe to favour/release father of the complainant from the case registered against his father at P.S. Palam Village, Delhi. He denied that he did not want to pay the bribe amount to accused Naresh Kumar, and that is why he had made the complaint to CBI Ex. PW2/A. He denied that any pretrap proceedings or posttrap proceedings were conducted in his presence. He admitted that there were made some telephonic calls from his mobile number to mobile number of accused Naresh Kumar.
On being cross examined by Ld. Counsel for accused Naresh Kumar he admitted that CD Ex. P3 and Ex. P6 were neither prepared nor sealed in his presence. He had also not put his signatures on any of these CDs.
9. PW3 Sh. Neeraj Kumar, Head Clerk, GradeII, Directorate of Audit, Players Building, Delhi Secretariat, Delhi has stated that on 02.4.2012 he himself and Sh. M.S. Rawat were directed by Sh. P.K. Jaggi who was Head of Office to attend CBI office and for which he had also received written instructions from Sh. Shyam Sunder, Administrative officer. He stated that when he had reached CBI office he had met Inspector Nikhil Malhotra, Inspector R.L. Yadav and complainant Hitesh Garg. He stated that there they were explained that the father of Hitesh Garg was involved in some criminal case and in this regard Hitesh Garg has CC No. 53/12 State (CBI) Vs. Naresh Kumar Page no.10 of 45 filed a complaint. He stated that the complaint was shown to them. The complaint was filed by Sh. Hitesh Garg against accused Naresh Kumar for demanding the bribe amount.
Attention of the witness was drawn to complaint Ex. PW2/A and after going through the same the witness stated that the same was written by Sh. Hitesh Garg on 03.4.2012 in his presence and of Sh. Rawat. He stated that the same was written on the dictation of someone who was sitting with the complainant who was telling him how the complaint has to be written. He voluntarily stated that one other complaint was in possession of complainant which was shown to all present who were present there. The amount of bribe was not mentioned in the original complaint. He stated that the verification memo regarding complaint made by the complainant dated 03.4.2012 was Ex. PW2/A. He stated that the contents of the documents were not read over or explained to him by CBI officials. He did not even object to signing the documents without the contents being explained to him. He stated that the complainant had a conversation with accused Naresh Kumar in connection with the criminal case of his father, but accused Naresh Kumar did not demand any bribe amount from the complainant for showing any favour.
At this stage Ld. Senior PP for CBI submitted that the witness may be declared hostile as he is not supporting the prosecution version.
On being cross examined by Ld. Senior PP for CBI he stated that his statement was not recorded by any CBI official. He admitted that on 21.4.2012 he had gone to CBI office and admitted that on that day his statement was recorded by Inspector Anand Swarup. He admitted that the contents of his statement were read over and explained to him. He admitted that the complainant was made to call a call on the mobile number of accused. He does not know whether the conversation was CC No. 53/12 State (CBI) Vs. Naresh Kumar Page no.11 of 45 simultaneously recorded in the DVR. He voluntarily stated that the conversation might have been recorded in the DVR. He admitted that the conversation so recorded in the DVR was transferred in a blank CD which was signed by him and thereafter, the said CD was sealed. He admitted that one memo was prepared and he and others had signed the same. He admitted that the complainant had produced Rs. 10,000/ comprising of 10 number of GC Notes of Rs. 1,000/ denomination. He admitted that the number of GC notes were noted down in the handing over memo. He admitted that personal search of the complainant was also conducted. He admitted that Sh. M.S. Rawat had put the tainted bribe amount of Rs. 10,000/ in the right side jeans pocket of the complainant. He stated that the complainant was directed not to touch the said tainted bribe amount and to handover the bribe to accused only on his specific demand and not otherwise. He stated that thereafter, they washed their hands with soap and water and he was asked by CBI to accompany Sh. Hitesh Kumar Garg as a shadow witness to hear the conversation between the complainant and the accused and to see the transaction of bribe amount. He admitted that they were also directed to give signal by rubbing his face with both hands after the transaction was over. He admitted that they were also directed that in case they failed to see Inspector R.L. Yadav or any other team member then they should give missed call on the mobile phone of Inspector R.L. Yadav immediately after transaction was over. Sh. M.S. Rawat was directed to remain with trap team members. He admitted that at about 1:15 pm the complainant had received a missed call from the mobile phone of accused Naresh Kumar and he was asked to make a phone call on the mobile of accused Naresh Kumar. He admitted that a call was recorded in the recorder and it is also correctly written in his statement recorder under Section 161 Cr.P.C. He admitted that in the said call CC No. 53/12 State (CBI) Vs. Naresh Kumar Page no.12 of 45 accused had asked complainant about his whereabouts and the complainant had responded that he had arranged the money and will be reaching with the bribe amount at about 3:00 pm at PS: Palam Village. He stated that his introductory voice and that of Ms. Rawat was recorded in the DVR when they had reached PS: Palam Vilagge. The DVR in switched 'On' mode was given to the complainant to be kept in his left side jeans pocket. Inquires were made at the reception of PS: Palam Village about accused Naresh Kumar and he was told that accused had gone to the Court. The complainant had contacted accused on his mobile phone. Accused had informed him that he was available at first floor room. He had gone to first floor room and found accused Naresh Kumar sitting alone. The accused had called them inside their room. The complainant had introduced him as his uncle. Accused had assured them that he will help them in the matter of his father, but he did not ask for any bribe amount. He denied that the complainant had taken out the money on demand of accused and handed over the same to accused and had accepted it with with his right hand. He denied that there was any discussion regarding the bribe amount on quantum. He further denied that he had stated so before CBI. He denied that accused had counted the rbibe amount and had kept it in his upper drawer and thereafter, shifted it to the second drawer. He further denied that he had stated so to CBI. He admitted that he had gone to ground floor and had informed Inspector R.L. Yadav and another team member that the accused was present in the first floor room. He stated that he did not know whether the complainant was sitting outside room of the accused or that accused had bolted the room from inside. He further denied that he had stated these facts before CBI in his statement. He also denied that the Digital Recorder had been taken from the complainant by Inspector Nikhil Malhotra in switched 'Off'. He CC No. 53/12 State (CBI) Vs. Naresh Kumar Page no.13 of 45 also denied that when he had reached outside room of accused Naresh Kumar, Inspector R.L. Yadav were knocking the door and asking him to open but he did not open it. He denied that the room had been broken thereafter and they had entered the room and found accused sitting there. He admitted that he had stated so before CBI when his statement was recorded under Section 161 Cr.P.C. he admitted that personal search memo of accused have been conducted, hand washes of both hands of accused were also taken and the solution had turned pink which had been transferred in a bottle and were sealed. A site plan was prepared. He admitted that file pertaining to father of complainant was recovered. He proved site plan Ex. PW3/A, the arrest memo Ex. PW3/B, personal search memo Ex. PW3/C, recording transfer memo Ex. PW3/D, specimen recording memo Ex. PW3/E and specimen voice recording memo of accused Ex. PW3/F. He admitted that the voice identification cum transcription memo Ex. PW2/G were prepared in his presence. He also admitted that the transcript Ex. PW2/G1 was prepared in his presence and after hearing the intercepted conversation played before him. He identified his signatures on the bottles containing handwash. He admitted that CD Q1 was played in his presence, however, when the CD was played in the Court he orally identified his introductory voice and voice of the complainant. He did not identify the voice of accused Naresh Kumar. He however, identified the specimen voice of accused contained in CD S1.
On being cross examined by Ld. Counsel for accused Naresh Kumar he stated that his statement was never recorded by CBI, however, he was asked to sign several statements. He also stated that no entry was made regarding his visit to CBI on 19.4.2012. He admitted that when they had entered the room of accused after trap was laid they could not find bribe amount. Personal search of CBI officers was not conducted after the CC No. 53/12 State (CBI) Vs. Naresh Kumar Page no.14 of 45 money was not traced. He stated that hand wash of complainant were not taken in his presence after the incident. Search of complainant was also not conducted in his presence.
10. PW4 Sh. V.B. Ramteke, Senior Scientific Officer has stated that he has seen CFSL Report dated 18.4.2012. He stated that in this case four sealed bottles were received in CFSL, New Delhi on 09.4.2012. The bottles were sealed with the seal impression which tallied with seal impression forwarded. The seals were intact. The bottles were marked as Ex. RHW, Ex. LHW, Ex. D1 and Ex. D2. The contents of the bottles were examined by him and they gave positive test of the presence of phenolphthalein. The remnants of the exhibits were returned to the forwarding authority with his official seal. The wrappers removed from the exhibit bottles were also returned in a sealed envelope with his official seal. He stated that he has prepared report Ex. PW4/A. On being cross examined by Ld. Counsel for accused Naresh Kumar he admitted that the CFSL, Delhi is under administrative control of CBI. He admitted that in case a person shakes hand with another person who has phenolphthalein powder on his hand, the chemical reaction thereafter, of the hand washes of the person who has shaken or touched the hand will also give positive result. He stated that it was not mentioned on the bottles sent for chemical examination whether the washes pertain to hand wash or any other thing.
11. PW5 Sh. Rajeev Ranjan, Nodal Officer, Tata Tele Services Ltd., proved the Customer Application Form Ex. PW5/A and call detail records of the mobile no. 9210483932 for the period 03.4.2012 Ex. PW5/B. He has also proved the certificate under Section 65 B(4)(C) of the CC No. 53/12 State (CBI) Vs. Naresh Kumar Page no.15 of 45 Indian Evidence Act pertaining to the CDR of this mobile number Ex. PW5/C. On being cross examined by Ld. Counsel for accused Naresh Kumar he admitted that the name of the issuing officer is not mentioned in the certificate under Section 65 B of Indian Evidence Act. He voluntarily stated that it bears signatures of Sh. Madan Vijayan, Nodal Officer and, therefore, he may have issued it. He denied that the CDR does not bear signatures of the Nodal Officer as deposed by him and the initials are not of the Nodal Officer concerned.
He admitted that the CDR does not bear the stamp of the Nodal Officer, however, it bears stamp of the company. He denied that the documents furnished by him are forged and manipulated under pressure of CBI.
12. PW6 Dr. Rajinder Singh, Principal Scientific Officer and Head of Physics and Forensic Voice Identification Division, CFSL has stated that on 11.4.2012 he had received three sealed parcel from SP, CBI, ACB, New Delhi vide forwarding letter no. DAI2012A0011/DLI/5256 dated 10.4.2012. The said letter was Ex. PW6/A. He stated that the parcels were sealed with the seal of CBI and he had found them in intact condition after comparing the seals on parcel with the specimen seal forwarded by CBI. The parcels were marked by him and exhibits Q1 and Q2 were found to contain a compact disk which had questioned voice recording of accused Naresh Kumar and the same was marked by him as Ex. Q1 (II) (N), Q2(I) (N) and Q2(III)(N) respectively. He stated that Ex. S1 also contained a compact disk which had specimen voice recording of accused Naresh Kumar and the same was marked by him Ex. S1 (III)(N).
He stated that he had examined the questioned voice of CC No. 53/12 State (CBI) Vs. Naresh Kumar Page no.16 of 45 accused Naresh Kumar which was marked by him as Ex. Q1(II)(N), Q2(I) (N) and Q2(III)(N) with respect to the specimen voice which was marked by him Ex. S1(II)(N) by Auditory and Voice Spectrographic Technique and he found the questioned voice of accused Naresh Kumar tallied with his specimen voice in respect of their linguistic, phonetics and other general spectrographic parameters. He stated that the other details regarding his expertise experience, details of parcels and seals, description of the articles contained in the parcels, laboratory procedure, experiment, analysis and his detailed result of examination have been described in his report no. CFSL2012/P0469 dated 18.5.2012 and the same was Ex. PW6/B. On being cross examined by Ld. Counsel for accused Naresh Kumar he admitted that he was not privy to the identification of the voice of accused Naresh Kumar. He was not aware as to how many CDs of voice were prepared by the prosecution. He admitted that when CDs are prepared from the voice digital recorder it can be subjected to addition, alteration and subtraction. He admitted that when he had received the CD for the examination, it is not possible to ascertain as to whether this is a face to face conversation or a telephonic conversation. He stated that sometimes they have the original voice recorded of the two persons who are in conversation. He stated that he did not receive the copy of Ex. PW2/G. All these parcels were received in seal cover. He admitted that CFSL is under the administrative control of CBI. However, the CFSL is under the Ministry of Home Affairs while CBI is under DOPT. He stated that Computerized Speech Laboratory 4500 is the instrument used in voice identification and there is another instrument Speech Science Laboratory. It has inbuilt software and with the advent of technology it is upgraded.
He admitted that it is also used for voice enhancement as well as voice examination and also used for authenticity of the recorded voice.
CC No. 53/12 State (CBI) Vs. Naresh Kumar Page no.17 of 45 He admitted that the spectrum is visible representation of individual voice. He stated that he does not have any idea if Base and Treble in the voice are controlled by the digital voice recorder. He stated that there is no need to issue a certificate in producing a computerized document to say that while making this programme the computer and its accessories did not go out of order or it was working to its full efficiency. He stated that he did not give any transcript of the specimen or the questioned voice. He could not tell if the recorded data that was sent to him was tampered, edited or altered. He could not tell by looking at the samples and the questioned CDs if they were earlier altered or tampered. He denied that he had given the opinion on the dictate of CBI or that he did not test the samples. He further denied that when he had received the sample of the question voice he did not receive the sample voice alongwith it.
13. PW7 Inspector Nikhil Malhotra, Inspector, CBI, ACB, New Delhi has stated that a complaint made by Sh. Hitesh Garg was marked to him for verification. He stated that it was alleged in the said complaint that father of complainant Sh. Hitesh Garg was involved in a case of which accused Naresh Kumar was the Investigating Officer. It was alleged in the complaint that the Investigating Officer of the case was demanding Rs. 10,000/ as bribe amount from the complainant, otherwise, he would implicate father of the complainant in this case. He stated that in order to verify the allegations mentioned in the complaint, presence of an independent witness was secured. He stated that a DVR was arranged and after insuring its blankness introductory voice of the witness was recorded in the said DVR. He stated that it was decided to make a call on the mobile phone of accused Naresh Kumar from the mobile phone of complainant to which complainant informed that his phone cannot be put on speaker CC No. 53/12 State (CBI) Vs. Naresh Kumar Page no.18 of 45 mode. He stated that the SIM of the complainant was transferred to the SIM of the independent witness. Thereafter, call was made by the complainant on the mobile phone of accused Naresh Kumar and during the said conversation, accused Naresh Kumar had demanded bribe amount of Rs. 10,000/ from the complainant. He stated that the said conversation was also recorded in the DVR as the mobile phone was put on the speaker mode. He stated that the verification memo was also prepared and the same was signed by himself, independent witness and the complainant. He stated that the FIR was registered and marked to Inspector R.L. Yadav for investigation. He stated that a trap team was constituted consisting of the independent witness who was present during the verification and other CBI officers including himself and one more independent witness was also arranged. He stated that the complaint made by Sh. Hitesh garg and the verification memo dated 03.4.2012 were also shown to all present. He stated that the independent witnesses satisfied themselves about the genuineness of the complaint by asking questions from the complainant. He stated that the numbers and denomination of the GC notes produced by the complainant were noted down in the handing over memo. SI Vijay Yadav had given the demonstration to all present. Phenolphthalein powder was applied on GC notes and the same were kept in the pant pocket of the complainant by the recovery witness. He stated that before keeping the GC notes it was ensured that the complainant did not carry anything incriminating. He stated that the shadow witness was directed to remain close to the complainant. Both of them were directed to give a signal by giving a miss call on the mobile phone of Trap Laying officer after transaction of bribe amount or by rubbing the face. He stated that the complainant had informed that he had received a miss call from accused Naresh Kumar and it was decided to make a call on the mobile phone of CC No. 53/12 State (CBI) Vs. Naresh Kumar Page no.19 of 45 accused. Accordingly, a call was made and the complainant had informed the accused that he was coming alongwith the bribe amount of Rs. 10,000/. He stated that this call was also recorded in the DVR in the presence of independent witnesses. Handing over memo was also prepared and incorporating the above proceedings.
14. He further stated that the team left for the spot PS Palam in official vehicles. He stated that upon reaching the spot PS Palam, the vehicles were parked at a safer distance and the trap team members took their suitable position in disguised manner. The DVR was switched "ON" and given to the complainant. He stated that the shadow witness and the complainant proceeded towards office of accused Naresh Kumar. He stated that the trap team rushed to the first floor of the police station where office of accused Naresh Kumar was situated. The office room of accused was locked from inside and the same was not being opened. He stated that after breaking the side door the team had entered into the said room, where accused was present. He stated that DVR was taken back from the complainant and put into swtiched "Off" mode. The TLO had challenged the accused for having accepted bribe amount of Rs. 10,000/ from the complainant for which he had declined. He stated that the hand washes of accused were taken in a freshly prepared colourless solution of sodium carbonate. The washes of both hands had turned into pink colour and the same were transferred into glass bottles and sealed in the presence of independent witnesses. He stated that the shadow witness had informed that the accused had taken the bribe amount from the complainant and had kept the same in the upper drawer of his table and had then again taken out the bribe money and kept it in the second drawer of his table. He stated that efforts were made to recover the bribe money, but the same CC No. 53/12 State (CBI) Vs. Naresh Kumar Page no.20 of 45 could not be recovered. He stated that the complainant also corroborated the version of the shadow witness. He stated that the recording made in the DVR was played and heard which confirmed the transaction of bribe money. He stated that the washes of papers on which the bribe money was kept was also taken and sealed separately in the presence of independent witnesses. The DVR containing the recordings was handed over to independent witness as there was no means available at that time to transfer the same into a CD. He stated that after obtaining the residential address of accused Naresh Kumar, a search warrant under Section 165 Cr.P.C was also given. The proceedings were incorporated in the recovery memo prepared at the spot. He stated that the specimen voice of accused was taken in the presence of independent witnesses in DVR and the same was transferred in a Blank CD which was marked as S1. The said CD was signed by independent witnesses and the same was sealed.
He stated that the endorsement at point B on Ex. PW2/A is of Sh. Ganesh Verma, SP is in his own handwriting and the signatures of Sh. Ganesh Verma at point C and he can identify the same. He stated that the contents of Ex. PW2/F were read over to him and he had signed the same in token of its correctness.
On being cross examined by Ld. Counsel for accused Naresh Kumar he stated that the mode of verification of the complaint is well mentioned in the verification memo. He stated that he did not call Sh. Hitesh Garg to the office for the purpose of verification of the complaint that they had made. He stated that he did not summon anyone to the office by issuing a notice under his signatures for the verification of complaint Ex. PW2/A. He stated that he did not record the statement of Sh. Hitesh Garg. He stated that he did not record the statement of any other person for the verification of the complaint. He stated that he had CC No. 53/12 State (CBI) Vs. Naresh Kumar Page no.21 of 45 remained with the investigation team as a member throughout the case till arrest of accused Naresh Kumar. He admitted that he did not record the make of the phone which he had taken from the complainant for changing the SIM. He stated that the site plan was prepared at the spot and he had seen the same. He admitted that he had not signed the site plan. He stated that the DVR is connected directly by USB Port to the laptop for the purpose of transferring the recordings contained in the DVR on to an audio or video CD. He admitted that he had not given any DD No. on Ex. PW2/A. He admitted that Ex. PW2/F was not prepared by him so he cannot comment upon whether it was a photocopy of the original. He admitted that during verification proceedings he did not call the records from the police station concerning the FIR in question on which the present proceedings were started. He stated that he did not even verify if the accused in this case was an investigating officer in the said case. He admitted that he did not verify the antecedents of complainant Sh. Hitesh Garg during the verification. He had not ordered for dismentaling the sewer pipe of the bathroom of police station Palam Village. He denied that he did not verify the complaint in accordance with procedure established by Law.
15. PW8 Sh. Mahavir Singh Rawat, Sample Carrier, Drug Control Department has stated that on 02.4.2012 he was directed by his senior officer to attend CBI office on 03.4.2012. Accordingly on 03.4.2012 he alongwith Sh. Neeraj Kumar, UDC had visited CBI office and initially they went at the reception of CBI office and thereafter, they were sent to the first floor of CBI office building where they had met one Inpsector Surender Singh. He stated that one CBI official had come to them and had taken them to another chamber. He stated that no trap proceedings took CC No. 53/12 State (CBI) Vs. Naresh Kumar Page no.22 of 45 place in his presence. They returned back to CBI office and there CBI officials took his signatures on some papers.
Ld. Senior PP for CBI declared the witness hostile and on being cross examined by him he denied that on 21.4.2012 his statement under Section 161 Cr.P.C was recorded by Inspector Anand Swarup, CBI. He denied that on 03.4.2012 Inspector R.L. Yadav had introduced him with the complainant and other team members. He denied that the complainant had produced Rs. 10,000/ comprising of ten numbers of GC notes in the denomination of Rs. 1000/ and also the numbers of the said GC notes were noted down in the Handing Over Memo. He denied that demonstration was given by one of the team member to explain chemical reaction of white coloured powder with the solution of sodium carbonate with water and were also explained that any part of any object if comes in contact with powder and if the part of the object would be washed in a solution of sodium carbonate and water, the colour of the solution would turn pink. He denied that he had put the tainted bribe amount of Rs. 10,000/ in the right side jeans pocket of the complainant and he was directed by the TLO not to touch the said tainted bribe amount and to hand over the bribe amount to accused Naresh Kumar on his specific demand and not otherwise or to some other person on his specific direction. He denied that the complainant had received a missed call from the mobile of the accused and then the complainant was directed to give a call on the mobile phone of accused and this missed call was simultaneously recorded in the recorded by putting the mobile phone on speaker mode and in the said call, accused Naresh Kumar asked the complaint his whereabout and the complainant had responded that he had arranged the money and would be reaching with the bribe amount at about 3:00 pm in the police station and at this the call was disconnected.
CC No. 53/12 State (CBI) Vs. Naresh Kumar Page no.23 of 45 He admitted that on reaching the First Floor of PS Palam Village, he found the complaint waiting outside the room and the room was bolted from inside. He admitted that when they entered the room, accused Naresh Kumar was inside the room. He denied that hand washes of both the hands of accused Naresh Kumar were taken in his presence. He stated that the arrest of accused Naresh Kumar was not affected in his presence and no memo was prepared about his arrest in his presence and no personal search of accused Naresh Kumar was conducted in his presence and no articles or documents found in the possession of accused Naresh Kumar were seized in his presence. He admitted that search of the room of the accused including the Sewer Lines connected to the bathroom were conducted in his presence. He admitted that office search of accused Naresh Kumar was conducted and case file pertaining to Madan Lal Garg, father of the complainant was recovered. He admitted that the entire proceedings were completed at 8:00 pm. He denied that he had signed the recovery memo at the spot itself. He stated that all the documents were signed by him in CBI office. He admitted that the CD was marked as Q2 and he and Sh. Neeraj Kumar had put their signatures on the CD, thereafter, his introductory voice was recorded in DVR. He stated that the CD containing his introductory voice was not prepared in his presence, however, he had signed the same. He denied that he has been won over by accused Naresh Kumar and that is why he was deposing falsely on various points. He stated that arrest memo Ex. PW3/B, personal search memo Ex. PW3/C were prepared in his presence. He admitted that recording transfer memo Ex. PW3/D was prepared in his presence. He admitted that the voice identification cum transcription memo Ex. PW2/G was also prepared in his presence. He stated that the cloth wrapper bears his signatures at point A and the same CC No. 53/12 State (CBI) Vs. Naresh Kumar Page no.24 of 45 was Ex. PW8/B and the CD marked as S1 also bears his signatures at point A and the CD was Ex. PW8/C. On being cross examined by Ld. Counsel for accused Naresh Kumar he stated that no personal search was conducted by IO of himself as well as of the complainant after the incident. He admitted that his position was on the roadside outside the boundary wall of the police station. He stated that IO was standing outside the boundary wall. He has no relation or acquaintance with the accused. He stated that the distance between the boundary wall of the police station and the police station is 56 meters.
16. PW 9 Sh. Vishal Gaurav, Nodal Officer, Bharati Airtel Limited proved letter dated 16.5.2012 vide which he had supplied certified copies of CDR, Customer Application Form and Certificate under Section 65 B of Indian Evidence Act, alongwith original customer application Ex. PW9/A. He stated that the Customer Application Form is in the name of Ms. Sangeeta Rani, W/o accused Naresh Kumar for mobile no. 9810211034, call details of the said mobile number for the period 03.4.2012, certificate under Section 65B of Indian Evidence Act and the forwarding letter Ex. PW9/A were seized by the IO and the same are now Ex. PW9/B. He stated that the customer application form was Ex. PW9/C, the copy of the passport of Ms. Sangeeta was Ex. PW9/D which had been supplied by the customer alongwith the application form.
On being cross examined by Ld. Counsel for accused Naresh Kumar he admitted that the certificate Ex. PW9/F bears date 03.5.2012 whereas seizure memo bears dated 16.5.2012. He admitted that he was neither the restorer nor custodian of document Ex. PW9/C. He stated that his computer was connected with the main server, but he is not the custodian of the main server. He admitted that there are more than one CC No. 53/12 State (CBI) Vs. Naresh Kumar Page no.25 of 45 Nodal Officer in Delhi. He admitted that there are other Nodal Officers in the other states of India also who possess their own hard disks and systems and are connected with the main server.
17. PW10 Sh. SI Shanti Prakash has stated that on 03.4.2012 he was posted as SubInspector at PS Palam Village. On that day at the request of Inspector R.L. Yadav, CBI, ACB, Delhi he had handed over certified copy of DD No. 29A dated 03.4.2012, PS Palam Village and certified copy of DD No. 22A dated 03.4.2012, PS Palam Village. Both the DDs were written by Head Constable Satpal. He stated that the same were seized vide Memo Ex. PW10/A and the certified copy of DD No. 29A dated 03.4.2012 was Ex. PW10/B and the certified copy of DD No. 22A dated 03.4.2012 was Ex. PW10/C. On being cross examined by Ld. Counsel for accused Naresh Kumar he stated that he has not brought the Rojnamacha Register on which the above said DD entires were made. He admitted that he is not the author of the DD entries or the certified copies produced before CBI.
18. PW11 Inspector Satyaveer Singh has stated that on 13.4.2012 he was posted as SHO, PS Palam Village. He stated that on that day the duty officer had informed him that CBI Staff had come to the police station and a trap had been laid on accused Naresh Kumar who was posted as Sub Inspector. He admitted that as per the recovery memo Ex. PW2/F, the facts regarding handing over of the certified copy of the file are mentioned in this memo.
On being cross examined by Ld. Counsel for accused Naresh Kumar he stated that no other proceedings were carried out in his presence in this case by CBI. He had not received any complaint against accused CC No. 53/12 State (CBI) Vs. Naresh Kumar Page no.26 of 45 Naresh Kumar from any quarter or family in connection with investigation of FIR No. 149/2011, PS: Palam Village. He stated that he had also not received any complaint from anyone that accused Naresh Kumar had demanded bribe or was threatening any family member of the accused. He stated that since he was sitting in the separate room when CBI was conducting the proceedings, he cannot state as to what they did and what documents were prepared by them except the recovery memo. He denied that the recovery memo was not prepared in his presence, however, he admitted that the recovery memo does not bear his signatures.
19. PW12 Sh. R.L. Yadav, Inspector, ACUI, CBI, New Delhi has stated he was posted in ACB, Delhi Branch, CBI, New Delhi during June, 2011 to September, 2012. He stated that during this period he was assigned investigation of case RC No. 11/2012 vide FIR Ex. PW2/C against accused Naresh Kumar of Police Station Palam Village, New Delhi. He stated that the allegations in the complaint made by the complainant Ex. PW2/A was that his father was involved in some case which was being investigated by accused and he has demanded bribe of Rs. 10,000/ from his helping his father in the said case. He stated that the verification memo Ex. PW2/D was done by Inspector Nikhil Malhotra. He stated that the hand written complaint of Sh. Hitesh Garg was shown to all the team members and witnesses alongwith the verification memo prepared by Inspector Nikhil Malhotra. The independent witnesses satisfied themselves about the genuineness of the complaint by interacting with the complainant.
He stated that the complainant had produced Rs. 10,000/ which were demanded by accused Naresh Kumar. The number of GC Notes were noted down in the handing over memo Ex. PW2/E. He stated that SI CC No. 53/12 State (CBI) Vs. Naresh Kumar Page no.27 of 45 Vijay Yadav had given the demonstration of the phenolphthalein powder with solution of sodium carbonate. He explained that if any part of body/article comes in contact with phenolphthalein powder and if that part is washed in the solution of sodium carbonate, the colour of the solution will turn into Pink. He stated that independent witness Sh. M.S. Rawat had taken personal search of the complainant and had ensured that he was not carrying anything incriminating. Thereafter, he had put the tainted bribe amount of Rs. 10,000/ in the right hand pant pocket of the complainant Sh. Hitesh Garg. The complainant was instructed to handover the bribe amount to accused Naresh Kumar only on his demand or to any other person or the directions of accused Naresh Kumar.
He stated that a missed call was received from accused Naresh Kumar on the mobile phone of the complainant. He stated that the complainant was asked to give a call to accused by keeping the phone on speaker mode so that the conversation may be heard by the witnesses and the team members. The conversation was simultaneously recorded in the DVR. During the conversation accused Naresh Kumar had asked the complainant about his location and the complainant had informed him that he had arranged the bribe amount of Rs. 10,000/ and will be visiting police station: Palam Village around 3:00 pm to which accused Naresh Kumar agreed. He stated that the compact disk Mark Q1 regarding verification of the complaint was taken into possession vide handing over memo.
He stated that the complainant and the shadow witness Sh. Neeraj Kumar went into the police station and the other team members remained outside and took suitable positions. He stated that a call was received from the shadow witness and he had given a signal to all the team members and rushed inside the police station alongwith the other witness CC No. 53/12 State (CBI) Vs. Naresh Kumar Page no.28 of 45 Sh. M.S. Rawat. Sh. Neeraj Kumar, Shadow Witness was found near the stairs of the police station and he guided them to the room of accused at first floor where the complainant was also present near the door. The door of the room was found bolted from inside. He stated that he had tried to get the door opened but when the effort did not yield result, they entered the room from the side door by pushing it forcibly. He stated that on entering the room, accused Naresh Kumar was found present. He disclosed his identity and challenged accused for having demanded and accepted bribe from the complainant. He stated that the shadow witness was asked to narrate the sequence of events. He stated that on entering the police station, he alongwith the complainant went to the reception of the police station and on inquiry, it was informed that accused had gone out to Court. He stated that the complainant had made a call from his mobile to accused. Accused had informed the complainant that he is available in his room at first floor and he can come there. He stated that on reaching the room of accused Naresh Kumar, there was a discussion regarding the case against the father of the complainant. He stated that accused Naresh Kumar had demanded bribe and the complainant took out the bribe money from his pocket and handed it to him. Accused started counting the money and kept it in the upper drawer of the table lying in his room. He stated that soon he again opened the upper drawer and shifted the money to the second drawer. After a brief discussion, they both come out of the room and gave the predecided signal. The facts narrated by the shadow witness were corroborated by the complainant. He stated that the recorded conversation was also heard which confirmed demand and acceptance of bribe by accused Naresh Kumar. He stated that hand washes of accused were taken one by one in freshly prepared sodium carbonate solution. The colour of the solution had turned pink which was transferred into separate CC No. 53/12 State (CBI) Vs. Naresh Kumar Page no.29 of 45 clean glass bottles. He stated that the bottles were sealed by using CBI brass seal and a paper slip was pasted on both the bottles. The bottle containing right hand wash and left hand wash were marked as RHW and LHW. The paper slips pasted on the bottles and were signed by both the witnesses and by him. He stated that a thorough search of the room, office table and the connected bathroom was conducted but the bribe money could not be found. An effort was also made to trace the bribe money by going through the sewer line as well as the adjoining area. Personal search of the complainant was also taken. Accused Naresh Kumar was arrested vide arrestcumpersonal search memo which was prepared on the spot. He stated that the file pertaining to the case being investigated by accused was found in the room and a photocopy of the said file was taken. He stated that an authorization under Section 165 Cr.P.C was sent to Inspector M.K. Upadhyay for carrying out search of the residential premises of accused. The recovery memo prepared was signed by all the team members, both the independent witnesses and accused Naresh Kumar. He stated that a search of the Santro Car belonging to accused was also conducted but nothing incriminating was found and after the search, the key was handed over to the duty officer of the police station. He stated that specimen voice samples given by accused Naresh Kumar voluntarily were taken in the DVR and thereafter transferred to a CD marked S1 which was also sealed by using CBI brass seal.
On being cross examined by Ld. Counsel for accused Naresh Kumar he stated that CBI has lock up system for keeping an accused in custody when he is taken on police custody remand. He stated that CBI has separate Malkhana and he does not know whether the Malkhana Register has been produced before the Court till date in the case or not.
He stated that he does not know as to whether the father of CC No. 53/12 State (CBI) Vs. Naresh Kumar Page no.30 of 45 the complainant was still in custody in case FIR No. 149/11, PS: Palam Village. He stated that no DD entry was registered regarding their arrival in the police station. He voluntarily stated that it was registered after the trap. He stated that the complainant and Sh. Neeraj who was the shadow witness had entered the room of accused Naresh Kumar first. He stated that there is escape route in the room where trap laying proceedings were conducted. He stated that in Ex. PW3/A there was a door connecting the room to the attached bath room and a separate door from the bath room which opens in the corridor. He admitted that despite there being escape routs in the room the accused had not tried to escape from the spot. He stated that the search had been conducted by Sh. M.S. Rawat. No separate memo in this regard was prepared. He stated that Ex. PW2/F was typed in the computer of the police station. He admitted that no separate entry regarding the case of bribery had been registered at police station Palam Village. He voluntarily stated that the recovery memo was however, given to Assistant to MHCM Constable Mitra Sent. He admitted that no person from the police station had signed the recovery memo as a witness. He denied that there was no occasion that accused could help the complainant in investigation or give him any relaxation in the cases against his father. He admitted that in order to cover the lapse in the investigation he did not record the statement of complainant after his search and he did not search the other shadow witness.
20. PW13 Head Constable Satpal, No. 1594, SouthWest, PS:
Palam Village, New Delhi has brought summoned record i.e. Daily Diary Register.
Attention of the witness was drawn to DD entires i.e. DD No. 29A dated 03.4.2012 Ex. PW10/B and certified copy of DD No. 22A dated CC No. 53/12 State (CBI) Vs. Naresh Kumar Page no.31 of 45 03.4.2012 Ex. PW10/C. After going through the same the witness stated that the certified copies of the above said were issued as per the original entries.
On being cross examined by Ld. Counsel for accused Naresh Kumar he stated that he has brought the Rojnamacha Register on which the above said DD entires were made. He admitted that he is not the author of the DD entires or the certified copies produced before CBI. The duty roaster of police station of all police officers is scheduled everyday. He stated that he has not brought the duty roaster specifying the duty of the accused on the date of incident.
21. PW14 Sh. Zile Singh, ACP/PG, O/o Commissioner of Police, SouthWest District, New Delhi has stated that he was working as ACP, PG Cell in SouthWest District on 21.5.2012. He stated that he had forwarded a Sanction Order Ex. PW1/A vide a forwarding letter dated 21.5.2012 and the said forwarding letter was Ex. PW14/A.
22. PW15 Inspector Anand Sarup is IO of the Case who stated that in April 2012, he was posted as Inspector, CBI, ACB. He took over the case for investigation on the direction of Sh. Ganesh Verma, SP from Sh. R.L. Yadav, Inspector, CBI, ACB. During the course of investigation, he had recorded the statement of witnesses, collected call detail records and CAF of the mobile phones used by the complainant and the accused. He also sent the CDs Mark Q1, Q2 and S1 to CFSL vide letter Ex. PW6/A under the signature of SP Sh. Ganesh Verma. He had also collected the CFSL Reports Ex. PW6/B and PW4/A regarding identification of voice and the hand wash of the accused. He had also prepared voice identification memo Ex. PW2/G and transcript of the conversation Ex. PW2/G1 to PW2/G2 CC No. 53/12 State (CBI) Vs. Naresh Kumar Page no.32 of 45 recorded between the accused, complainant and the witness. He proved production cum seizure memo Ex. PW9/D vide which the documents mentioned in the said memo from Serial No. 1 to 4 were seized by him from Sh. Vishal Gaur, Nodal Officer, Bharti Airtel. The documents seized through Ex. PW9/D were proved as Ex. PW9/C, D, E, F and Ex. PW9/A. He has also proved production cum seizure memo Ex. PW5/E vide which the documents mentioned in the said memo from Serial No. 1 to 4 were seized by him from Sh. Rajeev Ranjan, Nodal Officer. The documents seized through Ex. PW5/E were already Ex. PW5/A, B, C, D. Voice identification cum transcript memo was proved as Ex. PW2/G. He stated that the transcripts were Ex. PW2/G1 and PW2/G2. He stated that on the basis of evidence, oral and documentary collected during the course of investigation, he had filed the chargesheet against accused Naresh Kumar.
On being cross examined by Ld. Counsel for accused he stated that he had taken over the investigation of the present case on 09.4.2012. he stated that he has no qualification in the voice identification. He has also stated that he had drawn the transcript and recorded in Ex. PW2/G1 and PW2/G2. When he had taken over the investigation, along with other documents he was also given copy of the CD. The CD was not in any sealed cover. He admitted that the CD which he had heard and transcripted did not bear the FIR number or the RC number. He had not tallied the recording of this CD with the DVR on which it was supposed to have been originally recorded. He admitted that he did not requisition the original DVR to compare the recording in the CD. He admitted that no certificate was appended to the CD that it had been edited, altered or changed. He admitted that he did not certify that Ex. PW2/G1 and PW2/G2 were the correct transcription of the conversation recorded on the CC No. 53/12 State (CBI) Vs. Naresh Kumar Page no.33 of 45 CD. He stated that he had loaded the CD in laptop. He admitted that he had not heard the original DVR. He admitted that he did not use the software for writing the transcription of the recorded voice. He stated that he did not use the headphone. He admitted that he had not concluded the transcription under his signatures and with a seal. He stated that he had made a rough note of the transcription and then had got it typed. He admitted that Ex. PW2/G1 and PW2/G2 do not bear the endorsement when he compared these two exhibits with his hand notes. He admitted that he drew the entire transcription in his hand and got it typed on a computer. He admitted that Ex. PW2/G1 and PW2/G2 do not bear the signatures of the officer who had typed it on the computer and the printout was taken. He admitted that Ex. PW2/G1 and PW2/G2 do not bear his note that these are correct and true reproductions of his handwritten notes.
He stated that he had not examined any witness from the police station regarding the incident and the subsequent search of the alleged tainted money lost. He denied that the investigation conducted by him in the present case is not in accordance with law. He further denied that he had not investigated the case diligently. He further denied that there was no case of this nature. He further denied that CBI being the premier investigating agency in the country, he has filed the challan to save the face of CBI and his predecessor officers. He further denied that this investigation did not reach the logical conclusion.
23. Prosecution Evidence was closed thereafter.
24. Statement of accused Naresh Kumar was recorded U/s 313 Cr.P.C in which accused Naresh Kumar had stated that he is innocent and has been falsely implicated in this case. He refused to lead any evidence in CC No. 53/12 State (CBI) Vs. Naresh Kumar Page no.34 of 45 his defence.
25. Final arguments were heard on behalf of Sh. Akshay Gautam Ld. Special PP for CBI as well as Ld. Counsel for accused Naresh Kumar. I have heard arguments at bar and have carefully gone through the case file.
26. Ld. Counsel for the accused Naresh Kumar states that neither the complainant nor the shadow witness nor the independent witnesses have supported the case of prosecution. These witnesses have turned hostile. They have not supported the prosecution in totality. He, therefore, pleads that the accused be acquited.
27. Ld. Senior PP for CBI, on the other hand, has submitted that accused Naresh Kumar had demanded an amount of Rs.10,000/ from the complainant as bribe and the complainant had arranged the said bribe amount. It is further submitted that accused Naresh Kumar has caused bribe amount to disappear which he had accepted from the complainant PW2 Sh. Hitesh Garg.
He also states that witnesses of CBI have supported the prosecution case and conviction can be based on their statements alone.
28. While dealing with question of appreciation of evidence, Hon'ble Supreme Court in an authority reported as Syed Ibrahim Vs. State of Andhra Pradesh, 2006 VI AD (SC) 593 observed in paragraph no. 11, as under: Stress was laid by the accused appellants on the non acceptance of evidence tendered by CC No. 53/12 State (CBI) Vs. Naresh Kumar Page no.35 of 45 PW1 to a large extend to contend about desirability to throw out entire prosecution case. In essence prayer is to apply the principle of "falsus in uno falsus in omnibus" (false in one thing, false in everything). This plea is clearly untenable. Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of any accused, his conviction can be maintained. It is the duty of Court to separate grain from chaff.
Where chaff can be separated from grain, if would be open to the Court to convict an accused notwithstanding the fat that evidence has been found to be deficient, out to be not wholly credible. Falsity of material particular would not ruin it from the beginning to end. The maxim 'falsus in uno falsus in omnibus' has no application in India and the witness or witnesses cannot be branded as liar (s). The maxim 'falsus in uno falsus in omnibus' has not received general acceptance nor CC No. 53/12 State (CBI) Vs. Naresh Kumar Page no.36 of 45 has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to , is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but is it not what may be called 'a mandatory rule of evidence'. (See Nisar Ali Vs. The state of Uttar Pradesh [AIR 1957 SC 366]). In a given case, it is always open to a Court to differentiate accused who had been acquitted from those who were convicted where there are a number of accused persons. (See Gurcharan Singh & Another Vs. State of Punjab [AIR 1956 SC 460]). The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a CC No. 53/12 State (CBI) Vs. Naresh Kumar Page no.37 of 45 deadstop. Witnesses just cannot help in giving embroidery to a story, however, true in the main.
Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respect as well. The evidence has to be sifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. See Sohrab S/o.
Beli Nayata abd Anr. Vs. The State of Madhya Pradesh, [1972 (3) SCC 751] and Ugar Ahir and Ors. Vs. The State of Bihar [AIR 1965 SC 277]. An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate grain from the chaff, truth from CC No. 53/12 State (CBI) Vs. Naresh Kumar Page no.38 of 45 falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricable mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details present by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto.
(Zwinglee Ariel Vs. State of Madhya Pradesh {AIR 1954 SC 15} and Balaka Singh and Ors.
Vs. The State of Punjab {1975 (4) SCC 511}. As observed by this Court in State of Rajasthan V s.
Smt. Kalki and Anr. {1981 (2) SCC 752}, normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however, honest CC No. 53/12 State (CBI) Vs. Naresh Kumar Page no.39 of 45 and truthful a witness may be.
Material discrepancies are those which are not normal, and not expected of a normal person.
Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so."
Similarly, in an authority reported as Sunil Kumar Vs. State 2007, IV AD (Delhi) 417, while dealing with a case under Section 7 and Section 13(i)(d) r/w 13(2) of the Act, Hon'ble High Court of Delhi observed in paragraphs 12, 13, 28 and 29 as under: "12. All cases of corruption have two important aspects and they are
(i) demand and (ii) acceptance. Unless demand and acceptance of illegal gratification by the public servant charged with under the Prevention of Corruption Act are proved by the prosecution beyond doubt, the presumption provided for in Section 20 of the Act cannot be drawn. Three cardinal principles of criminal jurisprudence are well settled and they are as follows: CC No. 53/12 State (CBI) Vs. Naresh Kumar Page no.40 of 45
i) that the onus lies affirmatively on the prosecution to prove its case beyond reasonable doubt and it cannot derive any benefit from weakness or falsity of the defence version while proving its case;
ii) that in a criminal trial the accused must be presumed to be innocent unless he is proved to be guilty;
and
iii) that the onus of the prosecution shifts.
13. The Evidence Act also does not contemplate that the accused should prove his case with the same strictness and rigour as the prosecution is required to prove a criminal charge.
In fact, from the cardinal principles referred to above, it follows that it is sufficient if the accused is able to prove his case by the standard of preponderance of probabilities as envisaged by Section 5 of the Evidence Act as a result of which he succeeds not because he proves his case to the hilt but because probability of his version throws doubt on the prosecution case.
CC No. 53/12 State (CBI) Vs. Naresh Kumar Page no.41 of 45
28. In Jaswant Singh Vs. State of Punjab, AIR 1973 SC 707, it was held by the Supreme Court that in a bribery case the complainant is an interested witness and his evidence must be considered with great caution and it can be accepted when this is corroborated by other evidence adduced by the prosecution.
29. In view of the latest trend of the Supreme Court in its judgments particularly in State of UP Vs. Zakaullah's case (supra), the complainant's evidence does not require any corroboration and the court can act upon the testimony of the complainant provided the same is trustworthy to be acted upon."
29. Having gone through the testimony of the complainant, shadow witness and independent witness I am of the view that to constitute the offences under Section 7 of PC Act, it is necessary for the prosecution to prove that there was demand of bribe amount and the same was voluntarily accepted, either by the accused or by someone on his behalf. Therefore, under the Prevention of Corruption Act, the demand and acceptance of the money for doing a favour in discharge of its official duty is sine qua non for the conviction of the accused. Therefore, firstly CC No. 53/12 State (CBI) Vs. Naresh Kumar Page no.42 of 45 there must be a demand and secondly there must be acceptance that the accused had obtained illegal gratification. There in this case too, there has to be clinching evidence to show that the money received by accused Naresh Kumar is illegal gratification.
30. When the testimony of all the witnesses is seen in the light of relevant Sections of Prevention of Corruption Act, it becomes clear that in the instant case the all material witnesses have turned hostile in this case and have not supported the case of CBI on any material facts.
31. Despite lengthy cross examination of the complainant and the independent witnesses and best efforts of the Ld. Senior PP for CBI they did not support the case of prosecution. The Court had also warned the complainant and other independent witnesses that in case they make a false statement in the Court they can be prosecuted and be punished under the Law. Despite such warning also being issued they did not support the case of the prosecution regarding demand and acceptance of bribe amount by the accused.
32. Thus none of the independent witnesses or the complainant have either deposed or supported the claim of prosecution on the point of demand or acceptance of illegal gratification thereof by accused which has been elaborately explained in the preceding paragraphs. The star witness of the case i.e. the Complainant PW2 Sh. Hitesh Garg has also not supported the case of prosecution regarding either the demand or acceptance of the bribe amount by the accused.
33. The complainant PW2 Sh. Hitesh Garg was cross examined at CC No. 53/12 State (CBI) Vs. Naresh Kumar Page no.43 of 45 length by the Ld. Senior PP for CBI. Despite being cross examined at length and being confronted with his statement recorded under Section 161 Cr.P.C, the original complaint lodged with SP, CBI and the transcription of the intercepted conversation, the complainant did not state that the accused had either demanded or accepted any bribe amount from him PW2 Sh. Hitesh Garg who is the complainant has also not identified the voice of accused Naresh Kumar when the intercepted conversation was played in the Court for the purpose of identification and for proving the same. The two independent witnesses and shadow witnesses i.e. Sh. PW3 Sh. Neeraj Kumar and PW8 Sh. M.S. Rawat have also not identified the voice of the accused to support the claim of prosecution that when the demand was made by the accused for illegal gratification, the conversation regarding the demand did not recorded in the Digital Voice Recorder.
34. In this case, the recovery of the bribe amount also could not be made by CBI and there is no explanation as to where and how the bribe amount if given and accepted by the accused had disappeared. The case of the prosecution was further shaken by the fact that the complainant PW2 Sh. Hitesh Garg who had supposedly given the bribe amount stated that he had not given any bribe amount to the accused, and consequently no recovery of any bribe amount either from the accused or from the room of accused Naresh Kumar points out that there was no demand or acceptance of bribe amount by the accused.
35. The accused has also been charged for committing an offence under Section 201 Cr.P.C, however, no evidence emerged on record that accused Naresh Kumar had caused the evidence in the case to disappear or destroy. If the case of prosecution was that there was an escape route from CC No. 53/12 State (CBI) Vs. Naresh Kumar Page no.44 of 45 where he could have thrown down the money, they should have not only conducted a thorough search of the said escape route but should have also obtained police custody of the accused which was not requested for when the accused was produced in the Court. Therefore, the prosecution was also not able to place on record any evidence regarding the destroying of evidence by the accused.
36. The prosecution has, therefore, failed to prove the demand, acceptance and recovery of bribe amount or distruction of evidence by accused Naresh Kumar beyond reasonable doubt. The prosecution has failed to prove charge under Section 120B IPC r/w 7, 13(2) r/w 13(1)(d) of PC Act and Section 201 IPC. I, accordingly, acquit the accused of the charges framed against him.
37. Bail bond of the accused is cancelled and his surety is discharged. Documents of the surety be returned to him, after cancellation of endorsement, if any, thereon.
38. File be consigned to Record Room.
Announced in the open court on 30th day of October, 2013 (SWARANA KANTA SHARMA) SPECIAL JUDGE, (CBI05), NEW DELHI/30.10.2013 CC No. 53/12 State (CBI) Vs. Naresh Kumar Page no.45 of 45