Delhi District Court
Cbi vs . Jaibir Singh on 23 March, 2013
IN THE COURT OF DINESH KUMAR SHARMA,
SPECIAL JUDGE (PC ACT), CBI 01,
SAKET COURTS, NEW DELHI
CC No. 11/12
Unique Case ID No.02406R0194902012
CBI Vs. Jaibir Singh
S/o Sh. Dharam Pal Singh
R/o K11/T1, Mahipalpur Extn.
PS Vasant Kunj, New Delhi.
RC No. : 2(A)/2012
u/Ss : u/S.7 of POC Act, 1988
Judgment announced on : 20.03.2013
Date of Order on Sentence : 23.03.2013
ORDER ON SENTENCE
Present : Sh. D.K. Singh, Ld. PP for CBI
Convict Jaibir with Sh. KK Manan, Advocate
Convict Jaibir Singh has been convicted for the offence u/S.7 of
POC Act, 1988.
1.0 Sh. D.K. Singh, Ld. PP for CBI at the outset has submitted that
prosecution wants to place its appreciation for the defence counsels for their
cooperation in concluding the trial within a very short span. Ld. PP further
CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 1 of 3
submitted that under the instructions of his department, he would pray for
maximum punishment to convict Jaibir Singh. In support of his contention,
Ld. PP cited Niranjan Hemchandra Sashittal and another Vs. State of
Maharashtra, Writ Petition (Cri.) No.50 of 2012 decided on 15.03.2013. In
this case, it has been inter alia held as under :
"In the case at hand, the appellant has been chargesheeted under the
Prevention of Corruption Act, 1988 for disproportionate assets. The said Act
has a purpose to serve. The Parliament intended to eradicate corruption and
provide deterrent punishment when criminal culpability is proven. The
intendment of the legislature has an immense social relevance. In the present
day scenario, corruption has been treated to have the potentiality of
corroding the marrows of the economy. There are cases where the amount is
small and in certain cases, it is extremely high. The gravity of the offence in
such a case, in our considered opinion, is not to be adjudged on the bedrock
of the quantum of bribe. An attitude to abuse the official position to extend
favour in lieu of benefit is a crime against the collective and an anathema to
the basic tenet of democracy, for it erodes the faith of the people in the
system. It creates an incurable concavity in the Rule of Law. Be it noted,
system of good governance is founded on collective faith in the
institutions. ...
20. It can be stated without any fear of contradiction that corruption is not to
be judged by degree, for corruption mothers disorder, destroys societal will
to progress, accelerates undeserved ambitions, kills the conscience, jettisons
the glory of the institutions, paralyses the economic health of a country,
corrodes the sense of civility and mars the marrows of goverance. It is worth
noting that immoral acquisition of wealth destroys the energy of the people
believing in honesty, and history records with agony how they have suffered.
The only redeeming fact is that collective sensibility respects such suffering
as it is in consonance with the Constitutional morality."
2.0 Sh. K.K. Manan, Ld. Counsel for convict submitted that convict
is around 56 years of age. He has two unmarried children who are dependent
upon him. Convict is the sole earning member of his family and he has fully
CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 2 of 3
cooperated during the trial. Ld. Counsel has also pointed out that there are
no criminal antecedents and in his long service career, there was no
complaint against the convict. A prayer for lenient view has been made.
3.0 The corruption in the present form can be actually stated as
crime against society as it erodes the faith of the people in the system. In
order to inspire the faith and confidence of the common man, it is necessary
to have a consistent and firm view, in such like cases. Hon'ble Supreme
Court in Niranjan Hemchandra's (case) supra has emphasized that the
gravity of the offence cannot be adjudged on the bedrock of the quantum of
bribe.
4.0 I consider that taking into account the entire facts and
circumstances in the present case, convict Jaibir Singh is liable to be
sentenced to RI for 2 years and a fine of Rs.50,000/ in default SI for 6
months u/S.7 of POC Act, 1988.
Benefit of S.428 Cr.P.C. be given to the convict.
A copy of judgment along with order on sentence be given to
the convict free of cost.
File be consigned to Record Room.
Announced in the open court (Dinesh Kumar Sharma)
today on 23.03.2013 Spl. Judge(PC Act) CBI: N. Delhi
CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 3 of 3
IN THE COURT OF DINESH KUMAR SHARMA,
SPECIAL JUDGE (PC ACT), CBI 01,
SAKET COURTS, NEW DELHI
CC No. 11/12
Unique Case ID No.02406R0194902012
CBI Vs. 1. Jaibir Singh
S/o Sh. Dharam Pal Singh
R/o K11/T1, Mahipalpur Extn.
PS Vasant Kunj, New Delhi.
2. Rajkumar
S/o Sh. Kanwar Singh
H. No. 38, Village Deoli,
PS Neb Sarai, New Delhi.
Permanent residence of :
VPO Hewa, Distt. Bagpat, UP
RC No. : 2(A)/2012
u/Ss : 120B IPC and S.7 and S.13(2) r/w S.13(1)(d) of PC
Act, 1988
Date of Institution : 21.01.2012
Arguments Concluded on : 13.03.2013
Date of Decision : 20.03.2013
Appearances:
Sh. DK Singh, Ld. PP for CBI.
Sh. KK Manan, Ld. Counsel for A1 Jaibir Singh
Sh. Mir Akhtar Hussain, Ld. Counsel for A2 Rajkumar
CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 4 of 3
JUDGMENT
1.0 Accused Jaibir Singh and Rajkumar have been tried for the offence u/S 120B IPC and u/S.7 and S.13(2) r/w S.13(1)(d) of PC Act, 1988 r/w Sec. 120B IPC for having entered into a conspiracy, for demand and acceptance of bribe of Rs.10,000/ from complainant Sh. Bhagat Singh. FACTS 1.1 On 20.01.2012 complainant Bhagat Singh (PW4) lodged a complaint Ex.PW4/A alleging therein that accused Jaibir Singh, Section Officer and Rajkumar, Chowkidar both DDA employees, came to him on 19/1/02 and demanded bribe of Rs.20,000/ which was reduced to Rs. 10,000/ on negotiation, for allowing utilization of vacant piece of DDA land near Garden of five senses, for marriage purpose of his daughter. The complaint was marked to Insp. Pankaj Bansal for verification and laying a trap and RC No. DAI2010A0002 Ex.PW13/A was lodged on 20/1/2012. A trap team comprising of Insp. Pankaj Bansal (PW13), Anand Sarup, Shitanshu Sharma, Shri Bhagwan, Manish Upadhyay and two independent witnesses i.e. Sh. Vikas Rathi (PW5) and Sh. Rakesh Kumar (PW9) was constituted. The complaint Ex.PW4/A was explained to the members of the trap team including independent witnesses. Complainant produced Rs. 10,000/ comprising 2 GC notes of Rs.1,000/ each and 16 GC notes of Rs. 500/ each to be used as trap money. The numbers of the GC notes were CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 5 of 3 noted down and a handing over memo Ex.PW4/B was prepared incorporating all the pretrap proceedings. The complainant was directed to hand over the bribe money to the accused persons on their specific demand. A digital voice recorder (DVR) was given to the complainant with directions to switch it on before entering into the conversation with the accused. PW9 Rakesh Kumar was appointed as shadow witness and directed to remain with the complainant to overhear the conversation and see the transaction of bribe amount, and thereafter, to give predecided signal.
The complainant and shadow witness Sh. Rakesh Kumar (PW9) went together inside the tent and other members of the trap team took their respective positions. After sometime, two persons one wearing shawl and another wearing leather jacket, came towards the complainant and complainant handed over the bribe amount to one of the person who was wearing the shawl. On receiving the predecided signal, members of the trap team rushed towards the place and challenged the person wearing the shawl for having accepted the bribe, on which that person became pale and stated that he had received the money on behalf of his officer i.e. accused Jaibir Singh. CBI officials caught hold of that person by his both wrists and complainant identified the person as accused Rajkumar (A2) and person wearing leather jacket as Ajit (PW7).
PW9 Rakesh Kumar narrated the incident to trap team members and told that accused Rajkumar demanded the bribe money through gesture. Complainant took out the tainted bribe money and extended the same to CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 6 of 3 accused Rajkumar, who accepted the same and kept it in right side pocket of his kurta. The hand wash of accused Rajkumar was taken in colourless solution of sodium carbonate, which turned pink in colour. The tainted bribe amount was recovered from the right side kurta pocket of accused Rajkumar and was handed over to PW9 Rakesh Kumar. The number of GC notes were tallied with handing over memo and found to be the same.
Accused Rajkumar talked to Jaibir Singh on his mobile phone to confirm the demand and this conversation was recorded in the DVR. Accused Jaibir Singh was heard asking accused Rajkumar to receive the bribe amount and to reach at nearby Metro Station. The shadow witness along with accused Rajkumar were sent to metro station and members of the trap team also followed them in disguised manner. PW9 Rakesh Kumar handed over the tainted bribe money to accused Rajkumar on the directions of TLO for onwards transaction with accused Jaibir Singh. Accused Rajkumar was again directed to make a call to the mobile phone of accused Jaibir Singh and this conversation was also recorded in the DVR. In this conversation accused Jaibir Singh stated that he is coming. After some time, accused Jaibir Singh reached at the spot and accused Rajkumar handed over the trained bribe money to accused Jaibir. Jaibir kept the money in his left hand after counting the same. Insp. Shitanshu Sharma and Insp. Pankaj Bansal on receiving the signal rushed towards the spot and challenged accused Jaibir Singh for having accepted the bribe amount of Rs.10,000/. Accused Jaibir Singh turned pale and feigned ignorance. Accused Jaibir CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 7 of 3 Singh was caught hold of by both his wrists. The left hand wash and right hand wash of accused Jaibir were taken in colourless solution of sodium carbonate, which turned pink in colour.
Both the accused persons were taken to CBI office where they were formally arrested. The right pocket wash of kurta of accused Rajkumar was taken in colourless solution of sodium carbonate, which also turned pink in colour.
The data of the DVR was transferred into blank CD. The CD (Q1) was duly sealed with the seal of CBI. The rough site plans, Ex.PW5/C and Ex.PW5/D were prepared at the instances of both independent witnesses and the complainant showing the position of all trap team members including the independent witnesses and the accused. The entire trap proceedings were recorded in the recovery memo Ex.PW4/C. The specimen voices of accused Rajkumar and accused Jaibir Singh were taken in presence of independent witnesses vide specimen voice memos Ex.PW5/E and Ex.PW5/F and transferred into the CD S1 and S2.
The right hand wash (Ex.P8) and the wash of right side pocket of kurta of accused Rajkumar (Ex.P9) and right hand wash of accused Jaibir Singh (Ex.P7) and left hand wash of accused Jaibir Singh (Ex.P6) and CDs Q1 (Ex.PX1), S1 (Ex.PX4) and S2 (Ex.PX7) were sent to CFSL for chemical examination which gave positive opinion for the presence of phenolphthalein powder and sodium carbonate vide its report Ex.PW3/A. The expert vide his CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 8 of 3 opinion Ex.PW12/A inter alia opined that the questioned voice of both the accused matched with their respective sample voices.
The call details of the mobile phones of accused persons, Ex.PW10/D (7838535433) and Ex.PW11/D (9268087933) were obtained, which confirmed the conversation held between accused Jaibir Singh and Rajkumar on 19.01.2012 to 20.01.2012.
After completion of investigation, charge sheet u/S.120B IPC r/w S.7 and S.13(2) r/w S.13(1)(d) PC Act, 1988 was filed against the accused persons.
CHARGE 2.0 Being a prima facie case, charge u/S.120B IPC r/w S.7 and S.13(2) r/w S.13(1)(d) PC Act ; u/S.7 of PC Act, 1988 and S.13(1)(d) r/w S. 13(2) of PC Act, 1988 was framed against the accused persons to which they pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE 3.0 Prosecution examined 14 witnesses in support of its case. The prosecution witnesses can broadly be divided into following categories :
1) Witnesses regarding grant of sanction i.e. PW1 Sh. MK Gupta and PW2 Sh. Angad Singh ;CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 9 of 3
2) Expert witnesses i.e. PW3 Sh. VB Ramteke, Sr. Scientific Officer (Chemistry) and PW12 Sh. Amitosh Kumar, Sr. Scientific Officer (Physics) ;
3) Complainant and independent witnesses i.e. PW4 Bhagat Singh, PW5 Sh. Vikas Rathi, PW7 Sh. Ajit Singh, and PW9 Sh. Rakesh Kumar ;
4) Witnesses from office of Horticulture Division, DDA i.e. PW6 Sh.
Ashok Kumar and PW8 Sh. Ranbir Singh ;
5) Witnesses regarding call details record of conversation held between accused Jaibir Singh and Rajkumar i.e. PW10 Sh. Israr Babu, Vodafone and PW11 Sh. MN Vijayan, Tata Tele Services ; and
6) Trap Laying Officer (TLO) and Investigation Officer (IO) i.e. PW13 Insp. Pankaj Bansal (TLO) and PW14 Insp. Nikhil Malhotra (IO). 3.1 WITNESSES REGARDING GRANT OF SANCTION PW1 Sh. MK Gupta, the then Commissioner (Personnel), DDA Vikas Sadan proved the sanction for prosecution accorded against accused Jaibir Singh, Ex.PW1/A on 27.06.2012. In the cross examination, PW1 stated that the draft was placed before him and he had signed on the same after going through all the related documents and satisfying himself.
PW2 Sh. Angad Singh, the then Dy. Director, Horticulture Division VI, DDA proved the sanction for prosecution accorded against accused Rajkumar, Ex.PW2/A. In the cross examination, witness stated that CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 10 of 3 he got the information about demand of bribe in the sum of Rs. 10,000/ from the complainant from the documents of CBI. Sh. Angad Singh stated that he granted the sanction only after going through the documents. PW2 denied the suggestion that he had granted the sanction mechanically without any application of mind.
3.2 EXPERT WITNESSES PW3 Sh. V.B. Ramteke, Sr. Scientific Officer, Grade I (Chemistry) conducted the chemical analysis of the four bottles Ex.P6, Ex.P7, Ex.P8 and Ex.P9, and proved the opinion as Ex.PW3/A. As per report Ex.PW3/A, laboratory examination and analysis gave positive test for the presence of phenolphthalein powder and sodium carbonate. In the cross examination, witness admitted that in bottle Ex.1 (Ex.P8) there is no solution.
PW12 Sh. Amitosh Kumar, Sr. Scientific Officer, GradeII (Physics) proved his report regarding tape recorded conversation as Ex.PW12/A. Witness deposed that in this case CFSL received three parcels, Q1 (Ex.PX2), S1 (Ex.PX4) and S2 (Ex.PX7) along with specimen seal impression of tape recorded conversation on 12.06.2012. The three parcels were containing specimen voice recordings of Sh. Rajkumar and Jaibir Singh. The questioned conversation and specimen voice of Sh. Rajkumar and Jaibir Singh were transferred to instrument namely Speech Science Lab CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 11 of 3 (SSL) for examination. During examination, the questioned voice of Sh. Rajkumar and Jaibir Singh were segregated from their recorded conversation. The questioned voice were compared with the respective specimen voice of Sh. Rajkumar and Jaibir Singh. After comparing and identifying the questioned voice of Sh. Rajkumar and Jaibir Singh with the respective specimen voice, it was opined that the questioned and specimen voice of Sh. Rajkumar and Sh. Jaibir Singh are one of the same person on the basis of linguistic, phonetic and spectographic examination. 3.2 WITNESSES REGARDING CALL DETAILS RECORD PW10 Sh. Israr Babu, Alternate Nodal Officer, Vodafone proved the call details record of mobile No. 7838535433 in the name of Sh. Rajkumar for the period 19.01.2012 to 20.01.2012 as Ex.PW10/D. PW10 also proved the documents relating to above said telephone numbers and proved the same as Ex.PW10/B and Ex.PW10/C. The certificate u/S 65B (4)
(c) of Indian Evidence Act is proved as Ex.PW10/E. PW11 Sh. M.N. Vijayan, Nodal Officer, Tata Tele Services Ltd. proved the call details record of mobile number 9268087933 in the name of Sh. Jaibir Singh for the period 19.01.2012 to 20.01.2012 as Ex.PW11/D. The photocopy of application form of mobile number 9268087933 was proved as Ex.PW11/B and the photocopy of ID proof filed CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 12 of 3 by accused Jaibir Singh was proved as Ex.PW11/C. The witness also proved the certificate u/S 65B (4)(c) of Indian Evidence Act as Ex.PW11/E. 3.4 COMPLAINANT AND INDEPENDENT WITNESSES Complainant Sh. Bhagat Singh (PW4) deposed on oath that on 19/1/2012, accused Rajkumar and Jaibir called him by telephonic message through his covillager Virender Singh Yadav. The marriage of his daughter was fixed for 20/1/2012, and the tent for the marriage function was erected at the vacant piece of land near Garden of Five Senses. Accused Jaibir and Rajkumar demanded Rs. 20,000/ for erecting the tent at the vacant piece of land. Complainant met the accused persons on 19/1/2012 and told them that he is going for the engagement ceremony of his daughter and did not have money, and assured the accused persons to arrange something on 20/1/2012. The complainant deposed that he lodged the complaint, Ex.PW4/A to the CBI on 20/1/2012, and produced Rs.10,000/ GC notes to the CBI containing 16 GC notes of Rs. 500/ each and 02 GC notes of Rs. 1000/ each. The currency notes were smeared with powder and demonstration of it's reaction was given. The independent witnesses namely Vikas Rathi and Rakesh Kumar, employees of Delhi Jal Board were joined and the complaint was explained to them and members of the raiding party. The number of the currency notes, Ex.P2 were duly noted down and handing over memo Ex.PW4/B was prepared. Complainant stated that the CBI officials handed CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 13 of 3 over a small voice recorder which he kept in his pocket in the 'ON' condition.
The complainant alongwith independent witness reached the spot, and called accused Rajkumar. Rajkumar alongwith Ajit Singh came near the tent. Complainant offered Rs.10,000/ to Ajit Singh (PW7), who did not accept the same. However, accused Raj Kumar accepted the bribe money (Ex.P2) and put the same in right hand side pocket of his kurta (Ex.P4). The raiding party rushed to the spot on receiving the prescheduled signal. Accused Rajkumar told that JE Jaibir Singh (A1) had share in the bribe money. JE Jaibir Singh (A1) was called at Qutub Metro Station, near the Khangar shop. The digital voice recorder was kept in the pocket of Rajkumar. Accused Rajkumar handed over the bribe money to accused Jaibir, who accepted the tainted money from both of his hands.
Complainant proved the recovery memo as Ex.PW4/C, and seizure memo as Ex.PW4/D vide which the marriage card, Ex.P1, of his daughter was seized. The voice identification memo and the transcript of the recording was proved as Ex.PW4/E. Complainant stated that the conversation was duly recorded in the form of transcription, Ex.PW4/F. The CD Q1 (Ex.PX1) was played in the court. In CD, Ex.PX1, there were six files bearing No.120201_001, 120201_002, 120201_003, 120201_004, 120201_005 and 120201_006. In first two files there were sample voice of independent witnesses i.e. PW9 Rakesh Kumar and PW5 Vikas Rathi and in the third file, there was relevant conversation alleged to CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 14 of 3 have taken place on the spot. The complainant identified the voice of accused Rajkumar and PW7 Ajit Singh. In file 120201_004 and 120201_005 there was conversation between A2 Rajkumar and A1 Jaibir Singh. The complainant identified the voice of both the accused persons and the conversation also found identical to the transcript Ex.PW4/F. However, in file 006, the duration of which was 5.53 seconds, only in the initial part of the file, there was conversation between independent witness Rakesh and CBI official and major portion of this CD was found containing the voice of vehicular traffic. In CD S1 and S2, there were sample voice of accused persons and independent witness Rakesh Kumar.
In the cross examination, the complainant stated that he met both the accused persons on 19.01.2012 and at that time, PW7 Ajit Singh was accompanying them and one another person Sanju Yadav s/o Virender Singh was also there. Complainant admitted that he did not tell the CBI that Sanju Yadav was also accompanying accused persons nor did he tell CBI officials that PW7 Ajit Singh also met him on 19.01.2012. Complainant stated that regarding 19.01.2012 he only told the CBI that three persons were demanding bribe, which he did not want to pay. Complainant also stated in the cross examination that on 19.01.2012, he received a call from the phone of Sanju and during the same call he talked to A1 Jaibir. Complainant stated in the cross examination that Sanju told him on telephone that without payment of money, the accused persons will not allow to erect the tent. Complainant expressed his ignorance regarding any objections raised by A2 CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 15 of 3 Rajkumar at the time of marriage of daughter of Raghvender i.e. complainant's elder brother on 06.12.2011. However, the complainant denied the suggestion that A2 Rajkumar was kidnapped, beaten and forcibly taken to PS. Complainant admitted that one of his relative Sanjeev Kumar is employed in Delhi Police and his elder brother Raghvender Singh is also Head Constable in Delhi Police and posted in Prosecution Branch in Saket Courts. Complainant was given a specific suggestion that on account of incident dated 06.12.2011, the complainant and other members of his family were nursing a grudge against A2 Rajkumar and were looking out for an opportunity to implicate him. Complainant admitted that above said Sanjeev Kumar had accompanied him to CBI office on 20.01.2012. however, the complainant stated that Sanjeev Kumar left after leaving him at CBI office. Complainant stated that he reached the venue at around 4 to 5 pm and at that time there were 5060 persons. Complainant deposed that A2 Rajkumar was apprehended outside the tent. Complainant was given a specific suggestion that in fact bribe was demanded by PW7 Ajit Singh and subsequently the complainant colluded with PW7 Ajit Singh and entrapped the accused. In the cross examination on behalf of accused A1 Jaibir Singh, complainant admitted that in the complaint, Ex.PW4/A, he did not narrate the entire incident / proceedings which had taken place on 19.01.2012 including the telephonic conversation with the accused persons. Complainant stated in the cross examination that his mobile was not seized by CBI. Complainant stated that on reaching the spot, neither A2 Rajkumar called him nor did he call A2 CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 16 of 3 Rajkumar. It is pertinent to mention here that complainant stated in the cross examination that he had telephonic conversation with Jaibir (A1) on 19.01.2012.
PW5 Sh. Vikas Rathi deposed on oath that on 20/1/2012, he was directed by his superior to go to CBI office alongwith PW9 Rakesh Kumar and in the CBI office, they were directed to meet Insp. Pankaj Bansal. Insp. Pankaj Bansal showed the complaint Ex.PW4/A and explained the same. PW5 Vikas Rathi deposed that complainant produced the currency notes and same were smeared with a powder. The demonstration of the reaction of the powder was also given and a handing over memo Ex.PW4/B was prepared. Witness stated that a digital voice recorder (DVR) was given to the complainant and PW7 Ajit Singh was asked to accompany the complainant. PW5 stated that he saw two persons coming from the backside of the tent and on a signal being received, the raiding party rushed there. The person who had taken the money was asked to take out the same from his pocket and his handwash was taken in a glass which turned pink. PW5 stated that money was recovered from A2 Rajkumar and his hand washes were taken. The witness proved his signatures on recovery memo Ex.PW4/C and he also proved the arrest memo of accused persons as Ex.PW5/A and Ex.PW5/B. Siteplans were also proved as Ex.PW5/C and Ex.PW5/D. The CD was played and the witness identified his sample voice. In the cross examination, PW5 stated that he did not see the transaction taking place. CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 17 of 3
PW7 Ajit Singh deposed on oath that on 20/1/2012, he went to the area and found that a tent had been erected. The matter was reported to A1 Jaibir Singh and then they came back. After sometime, the tentwalah called him and A2 Rajkumar to the spot. Ajit Singh stated that he did not know that how much money was to be paid. In the cross examination, witness stated that on 19.01.2012, Negi Tentwalah had called the complainant from his mobile and he i.e. PW7 Ajit Singh talked to complainant regarding installation of tent and also told that tent should not have been erected and it will not be allowed. Witness stated that complainant told him i.e. PW7 on telephone that he i.e. complainant had taken permission. Complainant was asked to show the permission on which he came to the spot and in the meanwhile A1 Jaibir had come on the spot. Witness stated that thereafter, he did not have any talk with the complainant and complainant had only talked with A1 and A2. Witness stated that he heard the conversation between the complainant and accused persons but he did not give specification of the talk. Witness denied the suggestion that he was in conspiracy with the complainant to implicate the accused. He also stated that the CBI officials had taken his mobile on the spot which was later on returned to him. Witness also stated that he had received a call from A1 Jaibir Singh on the spot. PW7 denied the suggestion that he was let off by the CBI against illegal gratification.
CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 18 of 3
PW9 Rakesh Kumar, shadow witness deposed on oath that on being directed by his department, he reported to Insp. Pankaj Bansal. Insp. Pankaj Bansal introduced him to the complainant and explained the contents of the complaint. The formalities of the trap were told to the witnesses and demonstration was also given regarding reaction of powder. Witness stated that complainant produced Rs.10,000/ numbers of which were noted down. He proved the handing over memo Ex.PW4/B. PW9 Rakesh Kumar stated that before leaving the CBI office, the voice recorder was put in the pocket of the complainant and he i.e. witness was asked to remain present with the complainant. Witness stated that they reached the spot around 1:30 - 2 pm, which was a vacant land where a marriage tent was erected. PW9 Rakesh Kumar stated that when they reached the vacant land, two persons were already present there. Complainant Bhagat Singh offered money to both of them but one of them did not accept and another one accepted the money. Witness identified A2 Rajkumar as the person who had accepted the money and put the same in the pocket of his kurta. On the indication being given, CBI team reached there and caught the accused while he was trying to bring out the money from his kurta pocket. PW9 Rakesh Kumar stated that CBI officials took out the money from the pocket of the accused and the money was handed over to him i.e. PW9 with the direction to keep the same till further directions. Hand washes of the accused were taken. PW9 stated that on being interrogated, A2 Rajkumar stated that money was taken on behalf of "Sahabji". On being directed, A2 Rajkumar made a call to said "Sahabji". CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 19 of 3 PW9 stated that thereafter, he was sent along with A2 Rajkumar to another place near Metro Station with a briefing that another person is also to be arrested from there. After reaching there, A2 Rajkumar again called his "Sahabji" i.e. A1 Jaibir and after sometime, A1 Jaibir "Sahabji" reached there and A2 Rajkumar handed over the money to him. Witness identified A1 Jaibir Singh as the person who was given money by A2 Rajkumar. Witness stated that thereafter, money was taken back from A1 Jaibir and again handed over to him. Witness stated that proceedings were prepared in CBI office. In the cross examination, witness stated that the tainted money remained in his possession for around 1 to 1½ hours. It is an admitted fact that the hand wash of PW9 was not taken. In the cross examination, witness stated that he was not able to recollect that what conversation took place between the complainant and A2 Rajkumar. However, the witness stated that he only saw the complainant offering the money and A2 Rajkumar taking the same. Witness also stated that he saw the complainant offering half half money to A2 and PW7 Ajit Singh and on PW7 Ajit Singh refusing the same, the entire money was handed over to A2 Rajkumar. During the cross examination on behalf of A1 Jaibir, witness stated that no conversation took place between A2 Rajkumar and A1 Jaibir Singh in his presence. A2 Rajkumar gave the money to A1 Jaibir straight away and A1 Jaibir who was wearing gloves, took out the gloves and counted the same. CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 20 of 3 3.5 WITNESSES FROM DEPARTMENT PW6 Ashok Kumar, Asst. Director, Horticulture, DDA deposed on oath that A1 Jaibir was working as Section Officer and was site incharge of entire area near Garden of Five Senses and his duty included maintaining greenery and preventing encroachment. A2 Rajkumar was working as Maali under Jaibir Singh. PW6 Ashok Kumar specifically deposed on oath that the vacant land near Garden of Five Senses was not earmarked for performing functions or installing tents and in case some tent is installed at vacant land near Garden of Five Senses it was duty of A1 and A2 to ensure that no such activity is carried out. In the cross examination on behalf of A2 Rajkumar, witness admitted that A2 Rajkumar had no authority to allow somebody to install tent.
PW8 Ranbir Singh proved letter Ex.PW8/A wherein it was certified that piece of land at Lado Sarai near Saidullajab where the tent was erected on 20.01.2012 was a DDA land.
3.6 TLO AND IO PW13 Insp. Pankaj Bansal, TLO, deposed on oath that present case relating to complaint of PW4 Bhagat Singh was assigned to him by the then SP, Ganesh Verma. Insp. Pankaj Bansal stated that as there was no time left for verification, it was decided to lay a trap and accordingly, a trap team was constituted consisting of CBI officials and independent witnesses. Insp. CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 21 of 3 Pankaj Bansal deposed in detail about the pretrap proceedings including smearing the notes with the powder and handing over the DVR to the complainant. Insp. Pankaj Bansal proved the handing over memo as Ex.PW4/B. TLO stated that CBI team reached the spot at around 2:30 pm. At the spot, there was a marriage tent erected on the ground. PW9 Rakesh Kumar was directed to act as a shadow witness and complainant was directed to give the bribe amount only if demanded by the accused persons. Remaining members of the raiding party took their position and shadow witness was asked to give a signal in case there is an acceptance of bribe money by rubbing his face or by giving a missed call. Insp. Pankaj Bansal stated that after sometime, it was noticed that two persons were coming in the vacant plot area. One was wearing a shawl and another was in leather jacket. After receiving a signal from the shadow witness, CBI team rushed towards them and it was found that a transaction had taken place. Shadow witness PW9 informed that man wearing a shawl had taken bribe amount of Rs. 10,000/ from the complainant and has kept the same in his right side pocket of kurta. Hand wash of the accused were taken. On being questioned, A2 Rajkumar informed that he had taken the bribe amount on behalf of A1 Jaibir on which A2 Rajkumar was directed to telephone A1 Jaibir from his mobile phone and the conversation revealed that A1 Jaibir Singh instructed A2 Rajkumar to come at Metro Station for handing over the bribe amount. Insp. Pankaj Bansal stated that on Khangar Shop at Qutab Metro Station which used to be a normal place for meeting of the accused persons, A2 CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 22 of 3 Rajkumar and PW9 Rakesh Kumar sat on the chair and remaining members of the raiding party took their position. After sometime, A1 Jaibir Singh came there and after some initial conversation between the two, A2 Rajkumar handed over the bribe amount to A1 Jaibir. A1 Jaibir Singh counted the bribe amount from both his hands and kept the same in his left hand. Handwash of A1 Jaibir was taken and DVR was taken back from A2. It came in the evidence that A1 Jaibir had come on motorcycle. Thereafter, A1 Jaibir Singh and A2 Rajkumar were taken to CBI office and there remaining proceedings were conducted.
In the cross examination on behalf of A2 Rajkumar, Insp. Pankaj Bansal stated that the bribe amount remained with PW9 Rakesh Kumar for around ½ hour. TLO stated that PW7 Ajit Singh was let off on the spot within 5 minutes. Insp. Pankaj Bansal was also not able to recall if the mobile phone of PW7 Ajit Singh was seized from the spot. Insp. Pankaj Bansal also did not remember if A2 Rajkumar told him that he is innocent and he is being implicated by the complainant and as around a month back, while the tents were erected for the marriage function of son of the brother of the complainant, A2 Rajkumar had objected on which the complainant and his relatives including Sanjeev had given him beatings and this matter was reported to PS Mehrauli also. Insp. Pankaj Bansal also admitted that Sanjeev who is relative of the complainant was acquainted with him and he is employed in Delhi Police. Immediately thereafter, Insp. Pankaj Bansal stated that he started knowing him when he met him in connection of this CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 23 of 3 case. Insp. Pankaj Bansal stated that he did not investigate the role of Ajit Singh as transaction had taken place between the complainant and A2 Rajkumar. In the cross examination on behalf of A1 Jaibir Singh, Insp. Pankaj Bansal admitted that A2 Rajkumar was in CBI custody at that time when he was asked to make a telephone call to A1 Jaibir, though, he was not formally arrested till then. TLO also admitted that complainant and both the independent witnesses were discharged from the CBI office at around 11 pm. PW14 Insp. Nikhil Malhotra is the Investigation Officer (IO). He stated that the transcript of the conversation was prepared by him and after the sanction was accorded, chargesheet was filed. In the cross examination on behalf of A1 Jaibir Singh, Insp. Nikhil Malhotra stated that he had come to know about the earlier dispute between the complainant and A2 Rajkumar but he did not carry out any investigation in this regard. In the cross examination on behalf of A2 Rajkumar, IO stated that he did not conduct the interrogation of the accused persons at any point of time during the investigation of this case remained with him. IO stated that the statement of independent witness PW9 Rakesh Kumar was recorded on 01.03.2013 and 26.04.2012.
4.0 In his statement u/S.313 Cr.P.C. A2 Rajkumar denied to have demanded any bribe and stated that on 19.01.2012, the tent was not allowed to be erected upto 5 pm. In respect of the incident on 20.01.2012, A2 CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 24 of 3 Rajkumar stated that he was sitting alongwith PW7 Ajit Singh at about 2:30 pm and PW7 received a call on his cellphone on which PW7 Ajit Singh told him i.e. A2 Rajkumar that one of his relatives who is also relative of complainant PW4 Bhagat Singh had come to attend the marriage in the tent and he had to go in the tent to meet him and requested A2 Rajkumar to accompany him. A2 Rajkumar stated that he refused to go on the ground that he had dispute with PW4 Bhagat Singh. Accused Rajkumar stated that PW7 Ajit Singh told him to wait for 15 minutes and then he went inside the tent. After sometime, PW7 came out of the tent accompanied by two persons and complainant Bhagat Singh. Accused stated that Ajit Singh handed over some money and told him i.e. A2 Rajkumar to keep it safe with him since he has to stay back in the marriage. Accused stated that as soon as PW7 Ajit Singh gave him the money, the two persons caught hold of him by both hands and complainant Bhagat Singh took out cellphone from his pocket and other two persons asked him the phone number of A1 Jaibir. Then, two persons introduced themselves from CBI. Ajit Singh told them phone number of A1 Jaibir. Complainant Bhagat Singh dialled the number and A2 Rajkumar was asked to speak to A1. Initially, A2 Rajkumar refused to talk on which he was beaten up and compelled to call A1 Jaibir. A2 stated that in fact CBI officials had taken handwash of PW7 Ajit Singh. In respect of conversation with A1 Jaibir, A2 Rajkumar stated that he was directed to speak the same words as stated by the CBI officials. Accused Rajkumar stated that at Khangar shop, he handed over the money to A1 Jaibir as he was under threat CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 25 of 3 and coercion and was working as per the directions of CBI officials. Accused stated that as soon as he gave money to A1 Jaibir Singh, the CBI officers apprehended him. Accused Rajkumar stated that on 06.12.2011, Sh. Raghvinder Singh, brother of complainant, was getting his daughter married and had put the tent and other things in the government land for erecting the tent. A2 Rajkumar stopped them from putting the same and made them to remove all the tent material. Accused stated that on this complainant and his brother Raghvinder Singh and their relative Sanjeev who is in Delhi Police and other persons gave him severe beatings and kidnapped him in their Santro car. Initially, the accused was confined in their home and from there they took him to PS Mehrauli. Accused stated that he gave a complaint to SHO. However, in the meanwhile, 45 persons reached there and they did not allow the accused to file the complaint. Accused stated that A1 Jaibir Singh also reached there and he was persuaded to withdraw the complaint. A2 Rajkumar also examined HC Madan Lal as defence witness to prove this incident.
4.1 DW1 HC Madan Lal produced the complaint Ex.DW1/A reported to have been made by Raghvender Singh regarding demand of bribe by DDA official for erecting the tent. HC Madan Lal had brought the entire record and on the basis of the record deposed that A2 had also given a complaint Ex.DW1/B wherein he had stated that he had entered into petty arguments with Sh. Raghvender Singh and his associates on the issue of CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 26 of 3 installing the tent and cleanliness of park. A2 Rajkumar had stated that he did not want any action regarding this. The copy of the complaint was proved as Ex.DW1/E. It is pertinent to mention note that said complaint also bears the signatures of A1 Jaibir. DW1 HC Madan Lal stated that he had also recorded the statement of Kanhaiya Lal in this regard. Kanhaiya Lal stated that while he was working on the tent, the DDA officials came and asked for the permission. Kanhaiya Lal informed the matter to the person for whom the tent was being installed. After sometime, 57 persons came and started beating DDA officials and took him away in the car. Copy of the statement has been proved as Ex.DW1/C. DW1 HC Madan Lal stated that he had also prepared an application Ex.DW1/D for getting the medical examination of A2 Rajkumar conducted. However, A2 Rajkumar withdrew his complaint and did not want to get him medically examined. HC Madan Lal also produced the photocopy of complaint dated 10.08.2011 moved by some Ramesh Kumar seeking permission for organizing some social function.
4.2 A1 Jaibir Singh in his statement u/S.313 Cr.P.C. stated that on 19.01.2012 when he visited the spot no tent was placed. Accused denied to have demanded any bribe. He also denied to have any share in the bribe amount allegedly received by A2 Rajkumar. A1 Jaibir Singh stated that when A1 called him he was going on his bike and could not understand fully that what Rajkumar was saying and therefore, told him i.e. A2 Rajkumar that CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 27 of 3 he i.e. A1 Jaibir would talk to him on reaching Qutab Metro Station. In respect of acceptance of bribe by him, A1 Jaibir Singh stated that he reached at Khangar shop near Qutub Metro Station and saw Rajkumar sitting on the chair. A1 also went there and sat on the adjacent chair. A1 stated that since it was winter time, he was wearing gloves. A2 Rajkumar insisted upon him to remove the gloves saying that he would like to have tea or cigarette with A1 Jaibir. A1 stated that A2 Rajkumar took out some money and offered to him. A1 stated that he asked A2 Rajkumar that from where this money has come and who has given this money on which A2 Rajkumar stated that he i.e. A1 should have no concern with this and should accept the same. A1 Jaibir refused to accept the money and then A2 Rajkumar thrusted the money upon him and forcibly making him i.e. A1 Jaibir Singh to receive the same. A1 Jaibir Singh stated that in this process, the money was about to fall and therefore, he just hold the currency notes from both of his hands. A2 stated that he never accepted any money from A2 Rajkumar. A1 also stated that complainant implicated him falsely as the complainant had some enmity with A2 Rajkumar. A1 Jaibir Singh also stated that on 20.01.2012, when he met A2 Rajkumar at Khangar Shop near Qutab Metro Station, A2 Rajkumar was looking quite abnormal and under some pressure and was looking quite disturbed and frightened.
5.0 Sh. D.K. Singh, Ld. PP for CBI submitted that prosecution has successfully proved its case against the accused persons. It has been CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 28 of 3 submitted that complainant has made a consistent and corroborative statement on oath regarding demand and acceptance of bribe by the accused persons. The story as put up by the accused persons regarding false implication does not hold any water. Accused persons have taken a inconsistent and contradictory plea which makes them wholly unreliable. Ld. PP submitted that sanction has duly been proved on record. Accused persons have not been able to bring any material on the record to show that there is any defect in the grant of sanction. In respect of the independent witnesses PW5 Vikas Rathi and PW9 Rakesh Kumar, the prosecution has urged this court to rely upon the same in view of their cogent and creditworthy statement. Ld. PP also submitted that PW13 Insp. Pankaj Bansal (TLO) and PW14 Insp. Nikhil Malhotra (IO) have also duly proved the case of the CBI. 5.1 Per contra, Sh. Mir Akhtar Hussain, Ld. Counsel for accused A2 Rajkumar submitted that prosecution has miserably failed to prove its case against his client. It has been submitted that PW2 Angad Singh has granted the sanction mechanically without any application of mind. Ld. Counsel invited the attention of this court towards the cross examination of PW2 Angad Singh. The cross examination indicates that sanction has been accorded mechanically. In support of his contention Ld. Counsel cited Madan Mohan Arora Vs. State, 31 (1987) DLT 347, Bhisham Kumar Vs. State, 79 (1999) DLT 14, State Vs. Ravinder Singh, 57 (1995) DLT 506, CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 29 of 3 Tirath Prakash (Deceased) Through His Widow Smt. Mithlesh Sharma Vs. State, 92 (2001) DLT 613 and Om Prakash Vs. State & Ors., 2009 (2) JCC 1210.
Sh. Mir Akhtar Hussain, Ld. Counsel further argued that complainant in this case is not reliable. The prosecution has withheld the material evidence. The prosecution did not cite PW Sanju Yadav, who was present at the time of demand of bribe. Ld. Counsel submitted that even as per the testimony of the complainant and the independent witnesses, there was no demand on the part of the accused. The complainant also did not speak anything about the post trap proceedings. Ld. Counsel emphasized that the case of the prosecution is very weak in nature as in the cross examination, the complainant himself stated that three persons had demanded the bribe from him whereas, the CBI has filed the chargesheet only against two persons. Ld. Counsel submitted that PW5 Vikas Rathi has also not been able to give any support to the case of the prosecution and specifically stated that he did not see the transaction taking place. Similarly, PW7 Ajit Singh also merely stated that complainant had offered the money to A2 Rajkumar and there was no element of demand on the part of A2 Rajkumar. Ld. Counsel submitted that perusal of the testimony of PW9 Rakesh Kumar also indicates that complainant had offered the money to A2 and PW7 and here also the demand has not been attributed to the accused. Ld. Counsel invited the attention towards the discrepancy in the testimony of CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 30 of 3 prosecution witness regarding the mode of indication. Ld. Counsel assailed the testimony of PW13 Insp. Pankaj Bansal and PW14 Insp. Nikhil Malhotra and argued emphatically that both the testimonies are suffering from inherent contradictions. Ld. Counsel also cited Banarsi Dass Vs. State of Haryana, (2010) 2 SCC (Cri.) 864 and T. Subramanian Vs. State of T.N. (2006) 1 SCC 401.
5.2 Sh. K.K. Manan, Ld. Counsel for A1 Jaibir Singh read out the transcription Ex.PW4/F and stated that in the entire transcription, there is no demand on the part of the accused persons and there is no acceptance of money on the part of his client A1 Jaibir Singh. Sh. K.K. Manan, Ld. Counsel also asked the court to throw the case of the prosecution merely on the ground that as per chargesheet, the CBI team reached back at their office at 4:45 or 5 pm after the conclusion of the proceedings whereas, in transcription, Ex.PW4/F, the time mentioned is "5:30pm" & "6:26pm". Ld. Counsel argued that complainant in this case is wholly unreliable. Even in the transcription, he seems to be not knowing the name of the officer. The attention of the court was also invited to the last page of the transcription which shows that while the money was given to A1 Jaibir, it was with PW9 Rakesh Kumar. Ld. Counsel argued that sanction in this case is also mechanical. Both the sanctions Ex.PW1/A and Ex.PW2/A, though have been recorded by two separate officers, but the same are verbatim. Sh. Manan CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 31 of 3 submitted that the perusal of the transcript Ex.PW4/F would also indicate that even the bribe amount was not settled whereas, in the complaint Ex.PW4/A, the complainant has stated that the bribe amount was settled at Rs.10,000/. Ld. Counsel also pointed out the cross examination of complainant, where he has admitted that PW7 Ajit Singh was also present with the accused persons on 19.01.2012, whereas PW7 Ajit Singh did not state so in his statement. Similarly, complainant stated in his testimony that he talked to JE on 19.01.2012 on phone of Sanju Yadav. However, Sanju Yadav has not been made a witness. Ld. Counsel also submitted that it is an admitted case that on 20.01.2012, when the trap was conducted, the marriage of the daughter of the complainant took place on the same day. It has come in the cross examination of TLO (PW13) that complainant remained in the CBI office till around 11 pm. Ld. Counsel submitted that it does not appeal to the reason that a father whose daughter's marriage is to be performed on the same day would remain in the CBI office instead of at the marriage venue. Sh. KK Manan, Ld. Counsel read out the testimony of the prosecution witness and submitted that none of the witness has stated anything incriminating against A1. Ld. Counsel argued that at Khangar shop near Qutab Metro Station, the money was thrusted upon his client i.e. A1 Jaibir Singh as soon as he reached there and no conversation took place there. This fact is also fortified as there is no recorded conversation between A1 and A2 at Khangar shop. In support of his contention, Ld. Counsel cited Kanthiram CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 32 of 3 S/o Marotrao Wasnik (Dead) Vs. State of Maharashtra, 2013 I AD (Cri.) (Bom.) 543.
6.0 Accused persons have been charged for the offence u/S.120B IPC, S.7 and S.13(1)(d) r/w S.13(2) of POC Act, 1988. The case of the prosecution is that accused persons entered into a conspiracy and in pursuance to that conspiracy, demanded and accepted the bribe from the complainant. The offence of conspiracy has been defined u/S.120A IPC , which reads as under :
"120A. Definition of criminal conspiracy - When two or more persons agree to do, or cause to be done,
1. an illegal act, or
2. an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy ;
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
The elements of a criminal conspiracy have been stated to be :
a) an object to be accomplished ;
b) a plan or scheme embodying means to accomplish that object ;CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 33 of 3
c) an agreement or understanding between two or more of the accused persons whereby they become definitely committed to co operate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means ; and
d) in the jurisdiction where the statute required an overt act.
It is very rare to have any direct evidence as normally the conspiracy are hatched in secrecy and executed in dark. The prosecution would be considered to be successful if they are able to bring any material including circumstances on the record that there was transmission of thoughts sharing the unlawful design. The prosecution is required to establish that there was an agreement between the parties for doing an unlawful act. Reference can be made to Vijayan Vs. State of Kerala, AIR 1999 SC 1086.
In the cases of bribery, the prosecution is required to prove that there was some meeting of mind or agreement between the accused persons for demand and acceptance of bribe. Though, the direct evidence in such like cases may not be available, but at the same time, the court should be at guard to ensure that there is unbroken chain of circumstances which unerringly indicates towards the agreement of mind between the accused persons. The court has to keep in mind the basic caution that on the mere basis of CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 34 of 3 inference, the offence of conspiracy cannot be attributed to the accused persons.
7.0 Section 7 of POC Act provides punishment for demand and acceptance of bribe. The necessary ingredients of Section 7 POC Act, 1988 are as follows :
(1) the accused at the time of the offence was, or expected to be a public servant;
(2) that he accepted, or obtained, or agreed to accept, or attempted to obtain from some person a gratification;
(3) that such gratification was not a legal remuneration due to him;
and, (4) that he accepted the gratification in question as a motive or reward, for:
(a) doing or forbearing to do an official act, or
(b) showing, or forbearing to show favour or disfavour to some one in the exercise of his official functions; or
(c) rendering or attempting to render, any service or disservice to some one, with the Central or any State Government or Parliament or the Legislature of any State or with any public servant.CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 35 of 3
The reading of section 7 would be incomplete without section 20 of POC Act. Section 20 POC Act provides for raising of a presumption. The presumption u/S.20 POC Act is a presumption of law and therefore, if it is proved that accused has accepted or agreed to accept any gratification, it is obligatory on the court to raise this presumption. In section 20 of POC Act, the legislature in its wisdom has used the word "shall be". The expression "may presume" or "shall presume" are defined in section 4 of the Evidence Act. The presumption falling under former category are known as "factual presumption" or "discretionary presumption". The presumption falling under later category are "legal presumption" and "compulsory presumption". Thus, the legislature has asked in the tone of a command that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act, if the accused has accepted or agreed to accept any gratification. unless proved contrary. In such a position, the onus shifts upon the accused. However, the burden of proof on the accused in such case is not as heavy as upon the prosecution. The presumption u/S.20 POC Act is rebuttable presumption and it is only the inference. Accused may overcome the same by evidence to the effect that the act attributed to him is capable of an interpretation other than suggested by the prosecution. But in the case of legal presumption, the onus cannot be deemed to be discharged CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 36 of 3 merely because the explanation called by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words "unless the contrary is proved" which occur in this provision makes it clear that the presumption has to be rebutted by "proof" and not by a bare explanation which is merely plausible.
Thus, once it is proved that accused has accepted or agreed to accept the illegal gratification then the accused has to come out with such proof which are more than raising a reasonable probability and it would be necessary for the accused to show that upon the established practice his explanation is so probable that a prudent man ought, in the circumstances, to have accepted it.
Thus, in the present case, if it is proved that accused persons have accepted or agreed to accept the illegal gratification, then section 20 POC Act, would come into play and the accused persons would then be required to discharge the onus placed upon them.
7.0 Accused persons have also been charged for the offence u/S. 13(1)(d) r/w S.13(2) of POC Act, 1988. The bare perusal of section 13(1)(d) of PC Act would reveal that the following ingredients are required to prove in order to attribute section 13(1)(d) of PC Act :
1) accused was a public servant;CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 37 of 3
2) accused used corrupt or illegal means or otherwise abused his position; and,
3) accused obtained for himself or for any other person any valuable thing or pecuniary advantage.
The bare reading of section 7 and section 13(1)(d) may give an impression that ingredients of the two offences upto certain extent are common. However, if we go through the provisions of two, it would indicate that there is marked difference between the two. For an offenc u/S.13(1)(d), a public servant may obtain a pecuniary advantage by abusing his position as a public servant irrespective of motive or reward for showing favour or disfavour. Whereas, for the offence u/S.7 of POC Act there must be an element of motive or reward for doing or forbearing to do something, showing favour or disfavour to any person or for showing conduct by exercise of personal influence. It is also a settled proposition that accused can simultaneously be convicted for the offence u/S.7 and u/S.13(1)(d) of POC Act. Broadly, if it has been proved that accused has demanded or received the illegal gratification, the accused would be liable to be punished for both i.e. for S.7 and S.13(1)(d) of the Act. However, acceptance of illegal gratification, whether preceded by demand or not would be covered only under S.7 of the Act.
CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 38 of 3
Bare reading of S.7 of POC Act would indicate that it bars the demand and S.13 prohibits obtaining of pecuniary advantage. The key words in S.7 and S.13(1)(d) are "acceptance" and "obtaining". The dictionary meaning of the "acceptance" is to receive money with the intention. The dictionary meaning of "obtaining" means to secure or gain "something" i.e. result of a request or other. The word obtain does not eliminate the idea of acceptance of what is given or offered to be given. Though, it also connect element of effort on the part of the receiver. In case of obtaining the initiative vest in the person who receives that in that context a demand or request from him will be a primary requisite for an offence u/S.13(1)(d) of the Act. On the other hand, the offence u/S.7 of POC Act can be established by proving of either acceptance or obtainment. The "consent" can be established not only by leading evidence on prior agreement but also from the circumstances surrounding it without prior proof. Therefore, strictly speaking, it cannot be said that without a prior demand, there cannot be acceptance. But the prosecution is required to prove that accused accepted the money with a mind set that he is accepting the illegal gratification. Therefore, even if there is a transaction of money i.e. money has passed from complainant to the accused, it would be an offence u/S.7 of POC Act, only if the accused has accepted this money as illegal gratification with consenting mind. If the accused does not know that the money which is being given is a CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 39 of 3 bribe or illegal gratification, mere taking of it may not fall within the ingredients of S.7 of POC Act to constitute the offence u/S.7 of POC Act. 7.1 The material witness in the bribery cases is the complainant, independent witnesses and the members of the trap team. In the POC Act, the payment of bribe has also been constituted as an offence and therefore, in common parlance the complainant is stated to be an "accomplice" in the bribe cases. Whether the testimony of the complainant needs any corroboration or not has been a matter of discussion in number of cases.
In Rao Shiv Bahadur Singh & Anr. Vs. State of VindhP, AIR 1954 SC 322 (1), the Hon'ble Supreme Court inter alia held that a witness not willing party to giving of bribe to accused, but only actuated with the motive of trapping the accused cannot be treated as an accomplice. However, it was further held that the evidence of such witnesses is nevertheless the evidence of partisan witnesses who were out to entrap the accused therefore, evidence of such witness cannot be relied upon without independent corroboration. This question again came up for consideration in the State of Bihar Vs. Basawan Singh , AIR 1958 SC 500(1). In this case, Shiv Bahadur's case (supra) was also considered and it was inter alia held that Shiv Bahadur's case did not lay down any inflexible rule that the evidence of the witnesses of the raiding party must be discarded in the absence of any CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 40 of 3 independent corroboration. In Basawan Singh's case a police official demanded the bribe from the complainant. Accused in consideration of the bribe amount took Rs.50/ in cash and some quantity of wheat. The complainant approached the anti corruption department and it was decided to lay a trap. The independent witnesses were joined and a raid was conducted. The accused accepted the bribe money and the same was recovered from his possession. The trial court recorded conviction in this case. In appeal before the Hon'ble High Court, the conviction order was set aside on the ground that testimony of the witnesses who were form "raiding party" must be discarded unless their testimony is corroborated by independent witnesses. Reliance was placed upon Shiv Bahadur's case (supra). The Supreme Court after taking into account Shiv Bahadur's case, Rameshwar Vs. State of Rajasthan, AIR 1952 SC 54 and the rule laid down in King Vs. Baskerville, 19162 KB 658 (C) inter alia held "the correct rule is this - if any of the witnesses are accomplices who are "praticeps criminis' in respect of the actual crime charged, their evidence must be treated as the evidence of accomplices is treated ; if they are not accomplices but are partisan or interested witnesses, who are concerned in the success of the trap, their evidence must be tested in the same way as other interested evidence is tested by the application of diverse considerations which must vary from case to case, and in a proper case, the Court may even look for independent corroboration before convicting the accused person." It is pertinent to CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 41 of 3 mention here that in this case, the search witnesses were held to be independent witnesses who had nothing to do with the raiding party. It was inter alia held that the evidence of the search witness provide independent corroboration in a material particular to the testimony of the raiding party. The court held that independent corroboration does not mean that every detail of what the witnesses of the raiding party have said must be corroborated by independent witnesses. Even in respect of the evidence of an accomplice, the observation made by Lord Reading in Baskerville's case (supra) was cited with approval which inter alia reads that some additional evidence, rendering it probable that the story of the accomplice is true and that it is reasonably safe to act upon it, and the corroboration may not be direct evidence and merely a circumstantial evidence of connecting the accused with the crime is sufficient. The order of acquittal passed by the Hon'ble High Court was set aside by the Hon'ble Supreme Court.
Hon'ble Supreme Court in M.O. Shamsudhin Vs. State of Kerala, (1995) 3 SCC 351, has been inter alia held as under :
"11. Since this is an argument which is frequently put forward in all cases of bribery, we would like to examine the scope, nature and extent of corroboration that is necessary in such cases. The word 'accomplice' is not defined in the Evidence Act. However, it is accepted that the word is used in its ordinary sense which means and signifies a guilty partner or associate in a crime. Illustration (b) to Section 114 in a way cautions the court to bear in mind the presumption that an accomplice is not worthy of credit unless he is corroborated in material particulars. Section CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 42 of 3 133 of the Act, however, declares that an accomplice shall be a competent witness against an accused person and a conviction is not illegal merely because it proceeds on the uncorroborated testimony of an accomplice. The relation between Section 133 which is a rule of law and Illustration (b) to Section 114 which is a rule of prudence has been the subject of comment in a large number of decisions. However, it has emerged that a conviction based on the uncorroborated testimony of an accomplice is not illegal though an accomplice may be unworthy of credit for several reasons. Reading Section 133 and Illustration (b) to Section 114 of the Evidence Act together, the courts in India have held that while it is not illegal to act upon the uncorroborated testimony of the accomplice the rule of prudence so universally followed has to amount to rule of law that it is unsafe to act on the evidence of an accomplice unless it is corroborated in material aspects so as to implicate the accused. The reasons for requiring corroboration of the testimony of an accomplice are that an accomplice is likely to swear falsely in order to shift the guilt from himself and that he is an immoral person being a participator in the crime who may not have any regard to any sanction of the oath and in the case of an approver, on his own admission, he is a criminal who gives evidence under a promise of pardon and supports the prosecution with the hope of getting his own freedom.
12. Now confining ourselves to the case of bribery it is generally accepted that the person offering a bribe to a public officer is in the nature of an accomplice in the offence of accepting illegal gratification but the nature of corroboration required in such a case should not be subjected to the same rigorous tests which are generally applied to a case of an approver. Though bribe givers are generally treated to be in the nature of accomplices but among them there are various types and gradations. In cases under the Prevention of Corruption Act the complainant is the person who gives the bribe in a technical and legal sense because in every trap case wherever the complaint is filed there must be a person who has to give money to the accused which in fact is the bribe money which is demanded and without such a giving the trap cannot succeed. When there is such a demand by CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 43 of 3 the public servant from a person who is unwilling, and if to do public good approaches the authorities and lodges a complaint, then in order that the trap succeeds he has to give the money. There could be another type of bribe giver who is always willing to give money in order to get his work done and having got the work done he may send a complaint. Here he is a particeps criminis in respect of the crime committed and thus is an accomplice. Thus there are grades and grades of accomplices and therefore a distinction could as well be drawn between cases where a person offers a bribe to achieve his own purpose and where one is forced to offer bribe under a threat of loss or harms that is to say under coercion. A person who falls in this category and who becomes a party for laying a trap stands on a different footing because he is only a victim of threat or coercion to which he was subjected to. Where such witnesses fall under the category of 'accomplices' by reason of their being bribegivers, in the first instance, the court has to consider the degree of complicity and then look for corroboration if necessary as a rule of prudence. The extent and nature of corroboration that may be needed in a case may vary having regard to the facts and circumstances."
In M.O. Shamsudhin's case (supra), the Hon'ble Supreme Court after taking into account the evidence of complainant and shadow witness, inter alia held that the issue regarding corroboration of the evidence of complainant who is in the nature of an accomplice regarding demand frequently arise. The Apex court after combined reading of Section 133 and Section 114 of Indian Evidence Act, observed that conviction based on uncorroborated testimony of accomplice is not illegal though an accomplice may be unworthy of credit for several reasons and the rule of prudence so universally followed requires that it is unsafe to act upon evidence of an CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 44 of 3 accomplice, unless it is corroborated on the material aspect so as to implicate the accused.
7.2 Thus, the first and foremost question in the present case would be that whether the testimony of the complainant in the present case needs any corroboration. It is pertinent to mention here that both the independent witnesses i.e PW5 Vikas Rathi and PW9 Rakesh Kumar have also supported the case of the prosecution to certain extent. However, the question of corroboration is relevant in view of the fact that as far as the demand of bribe is concerned or the incident dated 19.01.2012 is concerned, only the complainant has made a statement regarding this. The complainant in his complaint, Ex.PW4/A dated 20.01.2012 has stated that accused persons had come to meet him on 19.01.2012 and demanded bribe of Rs.20,000/ for placing the tent and later on the bribe amount was reduced to Rs.10,000/. The reading of the complaint would also indicate that the bribe was demanded only by A1 Jaibir, though he had come with A2 Rajkumar and as per complaint, A1 Jaibir had told that bribe money may be given to A2 Rajkumar on 20.01.2012. Thus, as per the complaint, Ex.PW4/A, itself, the demand of bribe was only on the part of A1 Jaibir and A2 Rajkumar was only used as a medium for the acceptance of bribe. In his statement before the court on oath, the complainant stated that on 19.01.2012, he had received the telephone call through Virender Singh Yadav and accused persons demanded bribe from him in the presence of PW7 Ajit Singh. It also came in CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 45 of 3 the testimony of PW4 Bhagat Singh that three persons had demanded the bribe from him. The complainant in his statement made before the court made an improvement by saying that both the accused persons demanded Rs. 20,000/ for erecting the tent at vacant piece of land. It is pertinent to mention here that prosecution has not cited Virender Singh or Sanju in their case, as their witnesses. Prosecution has also not produced any evidence in the form of call details record regarding any conversation relating to demand of bribe between the accused persons and the complainant on 19.01.2012. PW7 Ajit Singh also in his statement before the court during cross examination stated that he had told the complainant on 19.01.2012 that tent cannot be allowed at this place on which the complainant told that he has taken the permission and thereafter, complainant came to the spot and in the meanwhile, A1 Jaibir also reached there. PW7 simply stated that there was conversation between A1, A2 and complainant and though he heard the conversation but did not specify about the same before the court. Thus, in respect of incident dated 19.01.2012 and conversation regarding demand and acceptance of bribe, the testimony of the complainant is uncorroborated. 7.3 The prosecution has not brought any material on the record to give a support to their case regarding alleged demand of bribe by A1 and A2. In the complaint Ex.PW4/A, the complainant had merely stated that A1 Jaibir came along with A2 Rajkumar and demanded bribe of Rs.20,000/ and he further directed that the bribe money to be given to Rajkumar. In his CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 46 of 3 statement u/S.161 Cr.P.C. which was recorded on 27.02.2012, Ex.PW4/DA, complainant again stated that on 19.01.2012, accused Jaibir and Rajkumar came to the vacant piece of land and demanded Rs.20,000/ for allowing the tent to be erected on said DDA land and thereafter, on negotiation, accused Jaibir agreed to reduced the bribe amount to Rs.10,000/ and asked the complainant to give the bribe amount to Rajkumar on 20.01.2012. However, in the court while making the testimony, the complainant made a substantial improvement and stated that accused Jaibir Singh and Rajkumar demanded Rs.20,000/ for erecting the tent at vacant piece of land as stated above.
It is also pertinent to mention here that TLO Insp. Pankaj Bansal took the plea that no verification was conducted in this case on account of scarcity of time. If we peruse the complaint, Ex.PW4/A, SP, CBI has straightway directed to register the case and do the needful. It would imply that straightway it was decided to not to conduct any verification and register the case. On the basis of material on record, this court has no hesitation in reaching to the conclusion that the prosecution has not brought sufficient material on record to prove demand of bribe. However, that would not be a death point for the case of the prosecution. Here again, we may recall the basic definition of S.7 and S.13(1)(d) of POC Act. The bare reading of these definitions would indicate that the accused can be convicted u/S.7 of POC Act for having accepted or agreed to accept the illegal gratification, even if it is not preceded by demand. However, for the CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 47 of 3 conviction u/S.13(1)(d), the prosecution is required to prove the demand and acceptance both. Reference can be made to State represented by Insp. of Police Vs. A. Parthiban, (2006) 11 SCC 473.
"8. Every acceptance of illegal gratification whether preceded by a demand or not, would be covered by Section 7 of the Act. But if the acceptance of an illegal gratification is in pursuance of a demand by the public servant, then it would also fall under Section 13(1)(d) of the Act. The act alleged against the respondent, of demanding and receiving illegal gratification constitutes an offence both under Section 7and under Section 13(1)(d) of the Act. The offence being a single transaction, but falling under two different sections, the offender cannot be liable for double penalty. But the High Court committed an error in holding that a single act of receiving an illegal gratification, where there was demand and acceptance, cannot be an offence both under Section 7 and under Section 13(1)(d) of the Act. As the offence is one which falls under two different sections providing different punishments, the offender should not be punished with a more severe punishment than the court could award to the person for any one of the two offences. In this case, minimum punishment under Section 7 is six months and the minimum punishment under Section 13(1)(d) is one year. If an offence falls under both Sections 7 and 13(1)(d) and the court wants to award only the minimum punishment, then the punishment would be one year."
8.0 In regard to the charge of conspiracy against the accused persons, the prosecution is relying heavily upon the premises that on 19.01.2012, the accused persons came together and met the complainant and again on 20.01.2012, A2 Rajkumar accepted the bribe on behalf of A1 Jaibir. It has been emphasized that even in absence of direct evidence, this evidence is sufficient to bring home the charge u/S.120B IPC. I am afraid that this CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 48 of 3 evidence alone may not be sufficient to hold the accused persons guilty for the offence u/S.120B IPC. As I have already held that the prosecution has failed in bringing home the sufficient evidence regarding the demand of bribe, it would not be safe to conclude that on 19.01.2012 when accused persons met the complainant, they had a meeting of mind regarding the demand of bribe. The two persons can be held guilty for an offence of conspiracy if there is a evidence regarding agreement of meeting of mind between the two. Each fact has to be ascertained on the basis of it's peculiar facts and circumstances. It is relevant to note here that A2 Rajkumar is subordinate of A1 Jaibir Singh and that too with a wide gap. A2 Rajkumar was merely a Chowkidar having no say in the decision making and A1 Jaibir Singh was Section Officer or Junior Engineer. In such a hierarchy, it is very difficult to infer that A1 and A2 can have some meeting of mind and in particular, in absence of any direct or indirect evidence in this regard. The accused persons cannot be convicted merely on the basis of inferences, surmises or conjunctures. The possibility cannot be ruled out that A2 Rajkumar was merely directed to follow the directions of A1 Jaibir. There is a strong possibility that A2 Rajkumar only acted as an extended arm of A1 Jaibir. The argument can be raised that if there was no conspiracy than why A2 Rajkumar accepted the amount. No doubt, it is a fact which may create suspicion but on mere suspicion, accused cannot be held guilty for a charge. There has to be evidence of a definite character to hold the person guilty for the offence. It is also relevant to mention here that even bare CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 49 of 3 perusal of the transcript Ex.PW4/F, it would be indicated that A2 and PW7 Ajit Singh had come together on the spot and there was no demand on the part of A2 Rajkumar. The complainant straightway offered the money equally to both of them i.e. A2 and PW7. Even in the transcription, PW7 Ajit Singh is heard saying that they have to give the entire money to A1 Jaibir. The conversation recorded would overall indicate that money is being given and accepted for A1.
9.0 Now coming to the charge for the offence u/S.7 POC Act, against accused Jaibir Singh. The complainant in this case, in his first complaint, Ex.PW4/A stated that A1 Jaibir Singh had demanded the bribe of Rs.20,000/ which was reduced to Rs.10,000/. This fact was again stated by him in the statement made before the CBI and he made this statement on oath before court also. Complainant also withstood the sustained cross examination and remained firm on this point. As I have discussed earlier also, that this part of the testimony regarding demand of bribe is uncorroborated. Now, the question is that whether testimony of complainant should be rejected outrightly because he has not been corroborated on a particular aspect. The second proposition is to be decided with that whether the evidence of a witness should be wholly rejected, if part of it is not worth reliable. It is a settled proposition and held in many cases that there are witness of three categories.
CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 50 of 3
In Vadivelu Thevar vs. State of Madras, AIR 1957 SC 614, it has been inter alia held as under :
"Generally speaking oral testimony in this context may be classified into three categories, namely (1) wholly reliable (2) wholly unreliable (3) neither wholly reliable nor wholly unreliable. In the first category of proof, the Court should have no difficulty in coming to its conclusion either way it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the Court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The Court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. There are exceptions to this rule, for example, in case of sexual offences or of the testimony of an approver, both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the Court to convict, if it is satisfied that the testimony of a single witness is entirely reliable."
If a witness is wholly reliable, there is no difficulty in accepting the testimony of such a witness. Similarly, if a witness is wholly unreliable, CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 51 of 3 again there is no difficulty in rejecting his testimony. The problem arises when the witness is neither wholly reliable nor wholly unreliable. Here, while reading the testimony of such a witness, the principle of appreciation of evidence "falsus in uno, falsus in omnibus" also comes into play. It is a settled proposition that a witness is cannot be rejected outrightly if some part of it found to be unaccepted. The duty of the court is to separate the grain from chaff and to take into consideration what seems to be reliable, cogent and creditworthy. The court has to appreciate the evidence as a whole. If the evidence as a whole inspire the confidence of the court, there is no difficulty in accepting the testimony of a witness even if some of its part is not reliable. The another proposition which normally comes for consideration that whether complainant in the bribery cases can be rejected outrightly, if it is not corroborated by another independent witness. Law regarding this is very well settled. It is the rule of caution that the court may look for corroboration. The corroboration may not come by way of direct evidence, but if the circumstances indicated by other witness are corroborating the complainant in material terms, it would be sufficient. The superior courts have also laid time and again that while appreciating the evidence of complainant in bribe cases, the court is also required to ascertain the nature and peculiar facts and circumstances of the case. In M.O. Shamsudhin's case (supra), the Hon'ble Supreme Court inter alia held as under : CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 52 of 3
23. ... Therefore as a rule of law it cannot be laid down that the evidence of every complaintant in a bribery case should be corroborated in all material particulars and otherwise it cannot be acted upon. Whether corroboration is necessary and if so to what extent and what should be its nature depends upon the facts and circumstances of each case.
The person who are willing to give the bribe and come to complaint after having get their work done by unlawful mean, are in the nature of particeps criminis. However, a witness which has been compelled to pay the bribe may not be taken in the category of particeps criminis and there has to be different parameters for appreciating the evidence of such witness.
9.1 In the present case, the marriage of the daughter of complainant was fixed for 20.01.2012. he had already got cards printed. Perusal of the marriage card, Ex.P1 indicates that the marriage venue was duly printed and therefore, the complainant had no option but to perform the marriage of his daughter on the same venue.
I have heard the tape recorded conversation during the evidence as well as final arguments. The quality of audio is very clear. There does not seem to be any gap. The disturbances occurring in the audio tap are only on account of vehicular traffic. Sh. KK Manan, Ld. Counsel for accused Jaibir Singh argued at length assailing the genuineness of tape recorded CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 53 of 3 conversation and transcription Ex.PW4/F. Ld. Counsel pointed out that in the transcription Ex.PW4/F, there is mention of "at 5:30" and "at 6:26". Ld. Counsel pointed out that as per the chargesheet, IO had reached back CBI office at 5:45 itself whereas, the transcription is indicating that major conversation took place at 6:26. The argument at the first hand seems to be very impressive. However, when the court went through the tape recorded conversation on the computer, it was found that the total duration of file No. 120201_003 was 10.53 minutes and in the said substantial, conversation between the complainant and accused started after around 6:26 minutes. It is correct that the CBI officials while preparing this transcription should have clarified this but merely on this account, transcription / tape recorded conversation cannot be rejected outrightly. The complainant has also identified the voices of accused and PW7. I do not see any problem in taking this tape recorded conversation only as a corroborative piece of evidence to the effect that the transaction was being done for A1 Jaibir Singh.
In respect of the transaction at Qutab Metro Station, PW4 complainant has made a specific statement on oath that A2 Rajkumar handed over the money to A1 Jaibir Singh and this has been corroborated by PW5 Vikas Rathi and PW9 Rakesh Kumar. This fact has also been corroborated by PW13 Insp. Pankaj Bansal. In addition to that A1 Jaibir Singh in his statement u/S.313 Cr.P.C. has accepted that A2 Rajkumar gave him the money at Qutab Metro Station. Accused Jabir Singh has not given any CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 54 of 3 explanation showing any element of truthfulness that why this money was being accepted by him from accused Rajkumar.
At this conjecture, presumption u/S.20 POC Act also comes into play. The prosecution has successfully proved by way of cogent and creditworthy material on record that accused Jaibir Singh accepted the money from accused Rajkumar which was being given by the complainant Bhagat Singh (PW4) and the onus on accused Jaibir Singh is placed by section 20 POC Act expecting him to give sufficient and plausible explanation which could replace the story of prosecution. 9.2 Ld. Defence counsel has argued at length that the investigation in this case has been conducted in a very casual manner. IO has committed many lapses. It is a settled preposition that defect in the investigation would not entitle the accused to go away scot free. Reference can be made to HN Rishbud Vs. State of Delhi, AIR 1955 SC 196.
In Leela Ram Vs. State of Haryana, AIR 1999 SC 3717, in reference to lapse in investigation, it was held as under:
"It is now a well settled principle that any irregularity or even an illegality during investigation ought not to be treated as a ground to reject the prosecution case and we need not dilate on the issue excepting referring a decision of this Court [vide State of Rajasthan V. Kishore, AIR 1996 SC 3035]."CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 55 of 3
Reference can also be made to Kishore Chand V. State of HP, 1990 CrLJ 2290 (SC), State of Rajasthan Vs. Kishore, AIR 1996 SC 3035, Ram Bihari Yadav Vs. State of Bihar & Ors 1998 (4) SCC 517, Amar Singh Vs. Balwinder Singh & Ors. 2003 (2) SCC 518 and Ram Bali Vs State of UP, AIR 2004 SC 2329.
9.3 The defence has also pointed out certain contradictions in the case of the prosecution. It has been submitted that the complainant has made many improvements in his testimony which makes the case of the prosecution weak. In respect of the appreciation of evidence, it is a settled proposition that minor contradictions which does not go to the root of the case cannot be held fatal in the case of prosecution. It has also been held in the number of the cases that minor discrepancies which does not go to the root of the case, should be ignored. Reference can be made to Krishna Pillai Vs. State of Kerala AIR 1981 SC 1237. In respect of appreciation of evidence, in Mehkar Singh Vs. CBI ILR (2011) IV Delhi, it was inter alia held as under :
"It must be kept in mind that while appreciating the evidence of a witness one may come across certain discrepancies in his deposition. These discrepancies are really of no consequence as long as they don't go into the root of an demolish the veracity of the case. These discrepancies can be due to normal errors of observation, or loss of memory due to lapse of time or due to mental disposition such as shock and horror at the time of the occurrence and the like. It must be remembered hat the evidence CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 56 of 3 given by a witness would very much depend upon his power of observation and it is possible that some aspects of an incident may be observed by one witness while they may not be witnessed by another though both are present at the scene of occurrence [vide Boya Ganganna and anr. v. The State of Andhra Pradesh AIR 1976 SC 1541]. In the case of Bharwarda Bhoginbhai Hirjibhai (supra), it was held by the Supreme Court that much importance cannot be given to minor discrepancies which did not go to the root of the matter and shake the basic version of the witnesses, therefore cannot be annexed with undue importance. It has been held time and again by catena of judgments of Apex Court that discrepancies do not necessarily demolish the testimony. The proof of guilt can be sustained despite some infirmities [Narottam Singh Vs. State, 1978 Crl.L.J. 1612 (SC)]. In the case of Ramni Vs. State, 1999 (6) SC 247, it was held that all the discrepancies are not capable of affecting the credibility of the witnesses and similarly all the inconsistent statements are not sufficient to impair the credit of a witness."
I consider that the contradictions which occurred in the present case are minor in nature and does not effect the case of the prosecution as a whole. I consider that prosecution has successfully proved its case against accused Jaibir Singh that he has accepted the money.
10.0 In view of the discussions made herein above, I consider that prosecution has not been able to bring sufficient evidence regarding demand and acceptance of bribe on the part of accused Rajkumar and therefore, accused Rajkumar is entitled for the benefit of doubt. Hence, accused Rajkumar is acquitted extending the benefit of doubt for the offence u/S. 7 and 13(1)(d) r/w 13(2) of POC Act, 1988.
CBI Vs. Jaibir Singh & Anr. CC No. 11/12 Page 57 of 3 11.0 Prosecution has also failed to bring any material on record regarding the charge u/S.120B IPC. Hence, accused Rajkumar and Jaibir are acquitted for the offence u/S.120B IPC.
12.0 As discussed above, there are sufficient material on the record which indicates acceptance of bribe on the part of accused Jaibir Singh. Hence, accused Jaibir Singh is convicted for the offence u/S.7 of POC Act, 1988.
Announced in Open Court (Dinesh Kumar Sharma )
on 20.03.2013 Spl. Judge (PC Act) : CBI01
Saket Courts : New Delhi.
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