Delhi High Court
Ajay Bali vs C.B.I. on 20 December, 2024
Author: Amit Sharma
Bench: Amit Sharma
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 4th October, 2024
Pronounced on: 20th December, 2024
+ CRL.A. 435/2013
AJAY BALI .....Appellant
Through: Mr. Sanjeev Bhardwaj, Advocate alongwith
Appellant in person.
versus
C.B.I. .....Respondent
Through: Mr. Ravi Sharma, SPP with Mr. Premtosh
K. Mishra, Mr. Praphull Kumar, Mr. Ishann
Bhardwaj & Ms. Madhulika Rai Sharma,
Advocates.
+ CRL.A. 423/2013
ARUN SHARMA .....Appellant
Through: Mr. D.B. Goswami, Mr. Harinath Ram &
Mr. Arunansh B. Goswami, Advocates
alongwith Appellant in person.
versus
CBI .....Respondent
Through: Mr. Ravi Sharma, SPP with Mr. Premtosh
K. Mishra, Mr. Praphull Kumar, Mr. Ishann
Bhardwaj & Ms. Madhulika Rai Sharma,
Advocates.
CORAM:
HON'BLE MR. JUSTICE AMIT SHARMA
JUDGMENT
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AMIT SHARMA, J.
1. The present appeals under Section 374 of the Code of Criminal Procedure,
1973, (for short, ‘CrPC‘) have been filed assailing the impugned judgment of
conviction and order on sentence dated 08.03.2013 and 13.03.2013 respectively,
passed by learned Special Judge, CBI-PC Act, East District Karkardooma
Courts, Delhi, whereby, the present appellants have been convicted in AC No.
24/11/06 arising out of RC No. DAI-2005-A-0059-DLI/CBI/ACB/New Delhi,
under Section 120B of the Indian Penal Code, 1860, (for short, ‘IPC‘) and
Section 7 read with Section 13(2) and Section 13(1)(d) of the Prevention of
Corruption Act, 1988, (for short, ‘PC Act‘), registered with CBI.
2. Vide the aforesaid judgment of conviction and order on sentence, both
appellants have been convicted for the offences punishable under Section 120B
of the IPC read with Section 7 and Section 13(2) read with Section 13(1)(d) of
the PC Act. Additionally, appellant/convict, Ajay Bali (hereinafter referred to as,
‘A-1’), was also convicted for the offences punishable under Section 7 and
Section 13(2) read with Section 13(1)(d) of the PC Act. Appellant, Arun Sharma
(hereinafter referred to as, ‘A-2’), was sentenced to rigorous imprisonment for a
period of 01 year alongwith a fine of Rs.10,000/- and in default of payment of
fine, to undergo simple imprisonment for 3 months for the offence punishable
under Section 7 of the PC Act. A-2 has also been sentenced to rigorous
imprisonment for a period of 01 year alongwith a fine of Rs. 10,000/- and in
default of payment of fine, to undergo simple imprisonment for 3 months for the
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offence of criminal conspiracy for the offence punishable under Section 13(2)
read with Section 13(1)(d) of the PC Act. A-1 has been sentenced to rigorous
imprisonment for a period of 3 years alongwith a fine of Rs. 25,000/- and in
default of payment of fine, to undergo simple imprisonment for 6 months for the
offence punishable under Section 7 of the PC Act. A-1 has also been sentenced
to rigorous imprisonment for a period of 3 years alongwith a fine of Rs.25,000/-
and in default of payment of fine, to undergo simple imprisonment for 6 months
for the offence punishable under Section 13(2) read with Section 13(1)(d) of the
PC Act.
FACTUAL BACKGROUND
3. Brief facts, necessary for the disposal of the present appeals, are as
follows:
i) On 30.10.2005, complainant namely, Rajesh Arora (PW-9), addressed a
complaint (Ex. PW-9/A) to the Superintendent of Police, CBI, ACB, New
Delhi, wherein, it was stated that on 22.10.2005, at around 04:00 PM,
when he was working in his own furniture shop at Preet Vihar, two police
personnel from Bhajan Pura Police Station, one of whom was Ajay Bali-
A-1, came in and told him that a murder has taken place in Bhajan Pura
and four persons seem to have been involved in the same. They further
told PW-9 that, out of those 4 four persons, one had stated that he had
stayed at the shop of the complainant (PW-9) for 2-3 days, and therefore,
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PW-9 has to come to police station regarding the inquiry of the said
murder case.
ii) PW-9 was then, directed to come to police station on 23.10.2005 in
furtherance of the investigation of the aforesaid murder case, however, he
was not able to join as it was a Sunday. Thereafter, PW-9 received a call at
his shop’s contact number (9213106101) from the personal mobile
number (9818290099) of A-1 which was picked by his employee. A-1
threatened the employee of PW-9 and told him that if PW-9 does not come
then, he has other means to bring the latter to police station.
iii) On 24.10.2005, PW-9 alongwith his two relatives namely, Vinod Kumar
Verma (PW-11) and Surinder Mittal (PW-14), went to Bhajan Pura Police
Station, and there, A-1 threatened and told PW-9 that, he can implicate the
latter in the said murder case and demanded a sum of Rs. 1 Lakh in order
to keep his name out of the said case. PW-9 told A-1 that he cannot
arrange such a huge sum of money in a short span of time. So, A-1 gave
him time till 26.10.2005, to arrange the said amount, which was further
extended till 27.10.2005 at the request of PW-9.
iv) On 27.10.2005, PW-9 called A-1 (9818290099) from his personal contact
number (9213234347) and told him that he was able to arrange only Rs.
50,000/-, to which, A-1 replied that PW-9 can deliver a seven-seater sofa
with side table at his residence. A-1 further told PW-9 to do the same by
04:00 PM in the evening as he was not able to come in person on account
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of some reason. A-1 also told that he will adjust the said sofa in the
remaining sum of Rs. 1 Lakh and gave him ultimatum till 30.10.2005 to
procure the remaining money. As per the directions of A-1, PW-9
delivered a sofa set at the former’s residence. PW-9 has also recorded the
conversation which took place between A-1 and him on 27.10.2005 on a
cassette, which later on, was marked as Q.
v) On the filing of the written complaint, comprising of aforesaid facts, by
PW-9, CBI registered FIR RC No. DAI-2005-A-0059-DLI/CBI/ACB/New
Delhi (Ex. PW-9/B) after inquiry and verification of the contents of the
said complaint.
vi) CBI then, constituted a raiding team to lay a trap by associating two
independent witnesses being Rang Lal (PW-2) and Veer Bahadur Singh
(PW-12) to catch A-1 red-handed. Pre-trap proceedings were also
conducted in the office on the same day, i.e., 30.10.2005, and during the
said proceedings one miss call was received on the mobile phone of PW-9
from A-1. Then, PW-9, on the instructions of CBI official called back A-1,
wherein, the latter talked about the demand of illegal gratification of
money and the said conversation was recorded in a digital recorder and the
same was kept in a cassette marked as Q1.
vii) The said constituted team of CBI alongwith PW-9 and the aforesaid
independent witnesses went to the furniture shop of PW-9 at Preet Vihar at
about 03:00 PM on the same day. Thereafter, at around 05:00 PM, A-2
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came there and introduced himself as the person sent by A-1 to collect the
bribe amount of Rs. 70,000/- from PW-9. On confirmation of the identity
of A-2 from A-1 over a phone call, PW-9 handed over the bribe amount to
A-2 and when the latter was counting the currency notes, on pre-planned
signal of PW-2, A-2 was apprehended in the said shop itself. A-2 admitted
that he was sent by A-1. Handwash of both his hands collected in separate
bottles were seized and sealed by CBI. Thereafter, on instructions of CBI,
A-2 called A-1 and asked the latter as to where the collected money
should be delivered. This conversation was recorded in a cassette marked
as Q2. A-2 was also arrested vide arrest memo Ex. PW-2/3 and Trap
Laying Officer (‘TLO’)/PW-15 prepared recovery memo-Ex. PW2/2, site
plan-Ex. PW-2/4 and also conducted other proceedings at the spot.
viii) Subsequently, a separate team of CBI was sent to police station Bhajan
Pura to apprehend A-1, however, he was absconding. CBI team met with
Insp. Ombir Singh and collected documents of duty roaster of A-1 and
also the records of the case FIR No. 425/05 in connection of which A-1
had demanded Rs. 1 lakh from PW-9 in order to hush up the latter’s name
from the said case. One dairy being D-26 of A-1 from his room in PS
Bhajan Pura was also collected by CBI team in the presence of Insp.
Ombir Singh.
ix) On the same day, another team of CBI visited the residence of A-1 at 15-
C, Una Enclave, Mayur Vihar alongwith PW-17, Rahul Verma, who was
an employee in Indian Railway. At the residence of A-1, CBI team found
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RK Bali, brother of A-1, and Jyotsna Bali, his wife. One five-seater sofa
set was recovered from the residence of A-1, which was the one claimed
to be delivered by PW-9 on 27.10.2005 in lieu of part payment of the
illegal gratification demanded by A-1. One photographer, Surender Kumar
Rakshit-PW-4, took the photographs of the said sofa set.
x) During the course of investigation, CBI collected the voice specimens of
PW-9, and his two relatives PW-11 and PW-14, who were present with
him at the time when initial demand of bribe was made by A-1.
Transcripts of the three audio cassettes being Q, Q1 and Q2 were also
prepared by CBI and the same were placed on record as Ex. PW-2/7 to Ex.
PW-2/11.
xi) A-1 surrendered on 22.12.2005 before CBI. His voice, handwriting, and
specimen samples were collected. The said samples alongwith the
aforesaid audio cassettes and other samples collected by CBI were sent to
CFSL for examination. All these samples tested positive. The Call Detail
Records (CDRs) of the mobile phones used by PW-9, A-1, A-2, PW-11,
PW-14 were obtained and the same confirmed that all of them were in
communication with each other during the relevant period from
22.10.2005 to 30.10.2005.
xii) After completion of investigation, chargesheet was filed before the Court
of competent jurisdiction on 30.08.2006. Charges were framed against the
appellants vide order dated 28.11.2007. Prosecution examined 20
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witnesses to prove the charges levelled against the appellants. Both
appellants in their statements to the Court under Section 313 of the CrPC
denied the case of the prosecution and alleged that they have falsely been
implicated by the CBI in the present case. A-1 took the plea that he was
implicated as one CBI Insp. Amit Vikram Bhardwaj, to whom A-1 was
not able to do a favour when he was posted at PS Mansrover in a case
pertaining to one of his relative Surinder Sharma, was holding grudge
against him. Whereas A-2, took the plea that he was apprehended by CBI
team on 30.10.2005 while he had an altercation with officials of CBI team
in the shop of PW-9 where he had gone to inquire about one settee
(furniture item) which he wanted to purchase.
xiii) To substantiate their pleas taken in statement under Section 313 of the
CrPC and disprove the case of the prosecution against them both
appellants had led defence evidence. A-1 had examined eight defence
witnesses being D1W1 to D1W8 including his wife, Jyotsna Bali. On the
other hand, A-2 had examined one defence witness named Kamal Kishore,
D2W1, who was an employee of PW-9/complainant and had witnessed the
incident in the present case.
xiv) Learned Trial Court after analyzing the testimonies of prosecution as
well as the defence witnesses and other documentary evidence placed on
record found both the appellants were guilty of the charges levelled
against them and sentenced them accordingly, as noted hereinabove.
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Hence, the present appeal has been filed assailing the findings of the
impugned judgment of conviction and order on sentence.
SUBMISSIONS ON BEHALF OF THE APPELLANT NO. 1
4. Learned counsel for the appellant No. 1 (A-1) has made the following
submissions in support of their appeal which are: –
i) That the impugned judgment suffers from various infirmities and
illegalities as the learned Trial Court has not correctly analysed the
testimonies of the key prosecution witnesses and the evidence led by A-1
in his defence. It is submitted that to prove the alleged demand of bribe,
CBI has placed reliance on the testimonies of PW-9/Complainant; PW-11
and PW-14, relatives of PW-9; Pradeep Kumar-PW-3, worker of the
Complainant; and none of these witnesses have supported the case of the
prosecution and were declared hostile.
ii) That the learned Trial Court has erred in placing reliance on the testimony
of PW-9/Complainant insofar as demand of bribe by A-1 is concerned as
he himself in his cross-examination has stated that in the initial complaint
filed by him on 27.10.2005 he had not named A-1. It is in the complaint
dated 30.10.2005 (Ex. PW-9/A), which he had written at the instance of
CBI officials, he mentioned the name of A-1.
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iii) That CBI in order to prove the acceptance of bribe has placed reliance on
the testimonies of PW-9/Complainant, PW-2 Rang Lal, Stock Witness,
and TLO/PW-15 Insp. Prem Nath. It is the case of the Appellant that PW-
9/Complainant has been declared hostile and other two witnesses are
interested witnesses. As per the testimony of PW-2, he had gone to his
office where his senior officials, via written orders, directed him to report
at the CBI office. Attention of this Court has been drawn towards the
testimony of Pradeep Nigam (D1W4) wherein, it is stated that 30.10.2005
was a ‘Sunday’ and PW-2 did not report at office on a ‘Sunday’. It is the
case of the Appellant that since the said day was a ‘Sunday’ then, how it is
possible that PW-2 had gone to his office or for that matter CBI office on
that day.
iv) It is further submitted that, as per the testimony of PW-9, he alongwith
PW-2 was sent by the CBI officials to get a tape recorder at the relevant
point in time on 30.10.2005, thereby aspersions have been casted over the
presence of PW-2 at the shop of PW-9 at 05:00 PM when the execution of
trap was done on 30.10.2005. This fact has also been corroborated by the
testimonies of Veer Bahadur (PW-12) and Rahul Verma (PW-17), the
independent witnesses, and Kamal Kishore (D2W1), who is the worker at
the furniture shop of PW-9. It is further pointed out that the learned Trial
Court has wrongly rejected his defence that PW-2 and PW-9 were not
present at the spot on 30.10.2005 at 05:00 PM merely on the ground that
the said facts were not put to PW-2 during his cross-examination.
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v) It is further the case of the Appellant that the prosecution has not been able
to satisfactorily prove the timeline of the series of events that had taken
place on 30.10.2005 because as per the testimonies of PW-2 and PW-15
different time frames have emerged regarding the events that took place
on the said date. Attention of this Court has been drawn towards the
testimony of PW-2, wherein it is stated that he alongwith CBI team had
reached the shop of PW-9 at 05:30 PM and A-2 had arrived at about 2½
hours later. However, in contrast to this, recovery memo being Ex. PW-
2/2 states that A-2 was apprehended at 05:10 PM. It is further submitted
that PW-2 in his testimony had also stated that A-2 had not demanded Rs.
70,000/- from PW-9. Attention of this Court has also been drawn towards
the testimony of Kamal Kishore (D2W1), wherein he has stated that A-2
was arrested on account of an altercation that occurred between CBI
officials and A-2. Thereafter, CBI officials had taken the cash from
D2W1, which PW-9 had kept with him for handing it over to CBI
officials, in case, the same is required by them, and the same cash was
used by the CBI to array A-2 as an accused in the present case. It has been
argued that at the said point in time PW-9 was not present in the shop as
claimed by the prosecution.
vi) Regarding the recovery of seven-seater sofa set alongwith a side table, it is
submitted that PW-9 and his worker (PW-3), through whom the said sofa
is alleged to have been delivered at the residence of A-1, has not supported
the case of CBI. It is further submitted that D1W8, wife of A-1, had
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objected to the seizure of the sofa set present in their house as the said sofa
was a gift which she had received at her marriage, and her version to this
extent, has also been supported by their neighbour, Rohit Saini (D1W2),
who had stated that the said sofa was lying in the house of A-1 much prior
to the registration of the FIR in the present case. It is pointed out that PW-
17 in his testimony had stated that the sofa which was seized by CBI was
an old sofa. It is also pointed out that the sofa which was recovered was a
five-seater, however, the complaint was regarding the delivery of a seven-
seater sofa set in lieu of the bribe demanded by A-1. Attention of this
Court has been drawn towards Ex. PW-17/1, seizure memo of the sofa
from the residence of A-1, to show the ambiguity in the descriptions of
both the sofas and it is submitted that nothing has been brought on record
by CBI to show that the said sofa is the one which was delivered by PW-9
to fulfil the demand of illegal gratification made by A-1.
vii) Insofar as the recovery of the cash amount of Rs. 70,000/-, attention of this
Court has been drawn towards the testimony of PW-12, who has been
declared hostile, and it is submitted that he had stated that he had not
witnessed anything pertaining to alleged incident that had taken place in
the present case and had left the spot owing to illness. Moreover, D2W1
has also not stated anything regarding the handing over of any such sum of
money to A-2.
viii) Regarding the seizure of personal Police Diary of the FIR No. 425/05 (D-
27) from Ombir Singh (PW-13) by CBI, it is submitted that the same
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stands falsified in view of the reply received to the RTI filed on behalf of
A-1 and the testimony of D1W3, shows that no such raid, as claimed by
CBI for the recovery of case diary of the FIR No. 425/05, was conducted
on 30/31.10.2005 in the room belonging to A-1 at PS Bhajan Pura. It is
further submitted that PW-13 was on patrolling duty as per the PS
roznamcha at the relevant point in time when he claims to have met the
CBI officials. It is further submitted that statement under Section 161 of
the CrPC of PW-13 was recorded on 27.12.2005, i.e., after the arrest of A-
1, and it is only after his arrest and during his police remand, A-1 was
forced to write the credentials of PW-9 in his personal police diary which
was alleged to have been seized in a raid conducted by CBI on 30.10.2005
from the room belonging to A-1 at PS Bhajan Pura. It is also pointed out
that CBI was not having any document whereby it could be said that any
writing sample of A-1 was available with them at the time of the seizure of
the aforesaid Police Diary and the same has also been admitted by
TLO/PW-15 in his deposition.
ix) In respect of the audio recordings on the basis of which the appellant has
been convicted, it is submitted that the said audio recordings are not
admissible in view of non-availability of the requisite certificate in terms
of Section 65B of the Indian Evidence Act, 1872, (for short, ‘IEA’). It is
further submitted that the said audio recordings were not put to all the
prosecution witnesses and the originals of those recordings have already
been deleted by TLO/PW-15. Moreover, the said recordings were
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inaudible and distorted and the learned Trial Court had wrongly placed
reliance on them. It is also pointed out that the devices from which said
recordings were obtained had not been sent to FSL for examination. It is
further submitted that the CDRs of the appellant, PW-9 and A-2 which
were placed on record by the CBI have already been discarded by the
learned Trial Court as no CAF was placed on record by CBI for any of the
said mobile numbers ascribed either to the appellants or PW-
9/Complainant.
x) It is further submitted that A-1 has falsely been implicated in the present
case as he was not able to return favour to Insp. Amit Vikram Bhardwaj,
who in turn hatched the conspiracy to implicate A-1. It is pointed out that
the presence of the said Inspector has been proved by Ex. PW-20/2 at the
raid conducted by CBI despite the fact that he was not the member of the
team who conducted the raid and the same has also been admitted by
TLO/PW-15. It is further submitted that GD Entry of CBI received by RTI
shows that there was no entry pertaining to the records of the present case
FIR during the period of 29/30.10.2005.
xi) It is further the case of the appellant that the prosecution witnesses being
PW-9, PW-11, PW-12, PW-14, PW-17, in their testimonies, have stated
that all the seizure memos, recovery memo etc. were prepared
subsequently and they were not aware of the contents of the said
documents. Therefore, all the recovery as well as the seizure memos
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prepared by CBI in the present case were ante-dated and prepared with an
ulterior motive to falsely implicate A-1.
xii) It is further submitted that CBI has not been able to substantiate their stand
that A-1 had demanded money from PW-9 so as to hush up the inquiry in
a murder case against the latter as A-1 was not investigating any such case
during that relevant point in time and the name of PW-9 and his shop had
never emerged during the investigation of the said case. Therefore, it
submitted that the impugned judgment and order on sentence be set aside
and the appellant be acquitted of the charges levelled against him.
SUBMISSIONS ON BEHALF OF THE APPELLANT NO. 2
5. Learned counsel for the appellant No. 2 (A-2) has made the following
submissions in support of their appeal which are: –
i) That CBI has failed to prove that A-2 is a conduit of A-1 as there is no
relation between them and A-2 has clean antecedents. It is submitted that
it is not the case of CBI that out of the alleged bribe amount a certain sum
of money was to be paid to A-2. It is further submitted that a perusal of the
CDRs of both appellants show that there were three calls between them on
30.10.2005 and, besides these calls, there was no communication that had
taken placed between them. It is also the case of appellant that these calls
were manipulated by CBI to falsely implicate him in the present case.
ii) It is further submitted that, as per the case of CBI, mobile number being
9818718507 has been ascribed to A-2 and it is the same mobile number
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from which call was made to the mobile number of A-1 on 30.10.2005.
However, as per the testimony of PW-5, Nodal Officer of Bharti Airtel,
the said mobile number has been registered in the name of Mr. Vijeta. It is
pointed out that when IO/PW-20 was cross-examined on this point, he had
stated that, neither did he made any inquiry from the said Mr. Vijeta nor
had he recorded his statement during investigation. It is the case of the
appellant that Mr. Vijeta was another man of CBI, who was neither cited
nor examined as witness before the learned Trial Court.
iii) It is further submitted that except PW-2, all other independent witnesses
have turned hostile and had not supported the case of CBI. Moreover, PW-
2 in his cross-examination, has admitted that CBI had reached the shop of
PW-9 at around 05:30 PM on 30.10.2005 and A-2 arrived at about 2 ½
hours later, which raises a question that who had made the aforesaid calls
to A-1 from the mobile number ascribed to A-2. It is further argued that
the testimony of PW-2 also lends support to the defence of A-2 which the
latter had stated in his statement under Section 313 of the CrPC that he
had reached the shop of PW-9 at around 08:05 PM. It is further submitted
that from the testimony of PW-2, it is evident that A-2 had not demanded
the said sum of Rs. 70,000/- from PW-9. It is further pointed out that the
defence witness, D2W1, has also stated that, on 30.10.2005, A-2 had
arrived at the shop of PW-9 at around 08:00 PM and not at 05:00 PM. He
has further stated that CBI officials did not get any hand wash sample of
A-2 nor had they done any personal search of A-2 and no written work
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was done by CBI at the said shop till A-2 was taken to Lodhi Colony. It is
also submitted that A-2 was arrested only when he got into an altercation
with those CBI officials who were present at the shop of PW-9.
iv) Regarding the hand wash result of PW-2, it is submitted that PW-6, Senior
Scientific Officer, who had examined the said hand wash samples, in his
cross-examination had admitted that name of the person to whom the
exhibit belongs was not mentioned in his report. It is the case of the
appellant that it was the sample of PW-2 which was taken at the time of
demonstration in CBI office (pre-trap proceedings) and the same was
planted so as to falsely implicate the appellant in the present case and
because of this reason only it did not find mention of the name of the
person to whom it belonged.
v) In respect of the voice sample and the report given by expert (PW-1)
regarding the voice samples, it is submitted that A-2 in this statement
under Section 313 of the CrPC has denied that he had not given any voice
sample to CBI on 31.10.2005. It is further pointed out that PW-1 in his
cross-examination has admitted that he has not mentioned in his report the
parameters on the basis of which he had rendered the said report.
Moreover, on being questioned regarding the credibility of the said report,
he had stated that it is 90% accurate. Therefore, it is the case of the
appellant that reliance placed by learned Trial Court on such a report to
convict the appellant is misplaced.
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vi) It is further argued that PW-9 has not supported the case of CBI and has
denied the fact that he had handed over a sum of Rs. 70,000/- to A-2 at the
directions of A-1. In fact, PW-9, in his testimony, had stated that he has
seen A-2 for the first time in the Court on the date of his deposition itself.
vii) It is further submitted that defence of the appellant has not only been
supported by defence witness, D2W1, who is a worker at the shop of PW-
9, but also by the prosecution witness, PW-2. Reliance has been placed on
Dudh Nath Pandey v. State of UP1, to contend that defence witnesses are
to be treated at par with the prosecution witnesses.
SUBMISSIONS ON BEHALF OF THE RESPONDENT/CBI
6. Learned SPP for CBI, refuting the contentions made by learned counsels
for the appellants, has made the following submissions: –
i) That in the instant case the circumstantial evidence and series of events
sought to be proved against the appellants has been cogently proved and
the learned Trial Court after taking into account the said evidence has
rightly convicted the appellants. It is further submitted that chain of
circumstantial evidence is complete and consistent with the hypothesis of
the guilt of the appellants. Reliance has been placed on Neeraj Dutta v.
State of NCT of Delhi 2 , to contend that it is permissible to draw an
inference that a public servant is guilty of the commission of offences
punishable under Sections 7, 13(1)(d) and 13(2) of the PC Act where, in
1
(1981) SCC Cri 378
2
(2023) 4 SCC 731
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case, the direct evidence of the complainant or “primary evidence” of the
complainant is unavailable owing to the death or any other reason.
ii) It is further submitted that the Hon’ble Supreme in M. Narsinga Rao v.
State of Andhra Pradesh3, while dealing with a case involving similar
circumstances wherein, like the present case, the complainant and the
shadow witness therein, had turned hostile, had sustained the conviction
taking into account the pre-trap and post-trap proceedings which were
consistent with the guilt of the appellant therein as discovery of tainted
notes is conclusive proof of demand and acceptance of illegal
gratification. Reliance has further been placed on Kishan Chand Mangal
v. State of Rajasthan4, to contend that the Hon’ble Supreme Court, in a
case, where the complainant had turned hostile has convicted the appellant
therein after taking into account complainant’s visit to the Anti-Corruption
Bureau, production of currency notes and the trap laid down by superior
officers followed by the visit of the raiding party to the house of the
appellant therein.
iii) It is further submitted that PW-2 as well as TLO/PW-15, in their
testimonies, have entirely supported the case of the CBI and there exist no
inconsistencies and contradictions in their testimonies. Therefore, the
learned Trial Court has rightly placed reliance on their testimonies in
convicting the appellants.
3
(2001) 1 SCC 691
4
(1982) 3 SCC 466
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iv) Regarding the credibility of the testimony of PW-2, shadow witness, it is
submitted that he had attended the trap proceedings at the request of CBI
and on deputation by his superior officers. Merely because he has acted as
a shadow witness in another trap case, the same does not cast aspersion
over his credibility and the facts stated by him during the trial of the
present case. Reliance has been placed on Nana Keshav Lagad v. State
of Maharashtra5, to contend that the Hon’ble Supreme Court in similar
circumstances has held that merely because the said witness had tendered
evidence in another case, it cannot be held that on that score alone his
evidence should be rejected.
v) Regarding the presence of PW-2 as well as PW-9 at time when bribe
amount was handed over to A-2, it is submitted that the said contention of
the appellants is liable to be rejected as this strategy was employed qua the
witnesses who were declared hostile during the trial. Moreover, the fact
that PW-2 and PW-9 were sent to arrange tape recorder by CBI officials
has never been put to PW-2 during his cross-examination.
vi) Insofar as the testimony of PW-2 is concerned, it is submitted that the
same is consistent with the case of CBI. A perusal of cross-examination of
PW-2 would show that, even after lengthy cross-examination, nothing has
been elicited out from his testimony which could have pointed that he was
not present at the spot when the bribe amount was handed over to A-2. It
is further pointed out that testimony of PW-2 has been corroborated by
5
AIR 2013 SC 3510
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TLO/PW-15 in material particulars. Reliance has been placed on Hazari
Lal v. State (Delhi Admn)6, to contend that the conviction of a person
accused of commission of offences punishable under the Prevention of
Corruption Act can be based on the statement of trap officer. Reliance has
also been placed on State of UP v. Zakullaha7, to contend that evidence
of trap officer in a bribe case can be acted upon even without the help of
any corroboration from any other witness or evidence.
vii) Regarding the testimony of PW-9/Complainant, it is submitted that
although he has been declared hostile nonetheless, he has corroborated the
case of the prosecution in material particulars such as admission of his
specimen on several documents prepared during the course of
investigation including complaint (Ex. PW-9/A), FIR, handing over
memo, recovery memo, cassette production, sealing memo or transcripts
etc. It is further submitted that it is not the case of the appellant that CBI
had pressurized him to put his specimens over blank documents. It is also
pointed out that, if such would have been the case then, the appellant
might have filed any complaint regarding the conduct of CBI which is not
the case. It is also pointed out that the recovery of currency notes numbers
as per the handing over memo has duly been proved by the testimony of
PW-2. The hand wash test has also proved the acceptance of bribe on the
part of the appellant and no plausible explanation has been put forth by the
appellant so as to dispel the said incriminating evidence.
6
AIR 1980 SC 873
7
AIR 1998 SC 1474
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viii) Reliance has been placed on Bhagwan Singh v. State of Haryana8 and
Rabinder Kumar Dey v. State of Orrisa9, to contend that the evidence
of a prosecution witness cannot be outrightly rejected merely because the
prosecution chose to treat him as hostile and cross-examine him. It has
further been contended that evidence of such a witness cannot be effaced
or washed off the record altogether but the same can be accepted to the
extent their version is found to be dependable on a careful scrutiny.
Reliance has also been placed on Maha Singh v. State (Delhi
Administration)10, to contend that when recovery is duly proved by the
prosecution and the defence failed to give satisfactory explanation, then
such a circumstance can be taken against the accused to convict him.
ix) It is further submitted that the audio recordings, being Q, Q1, Q2, sealed
by CBI were sent to CFSL for examination and positive results were
returned on the original cassettes in respect of the voices of the appellants
and the complainant/PW-9 and the same were also produced before the
learned Trial Court. It is further pointed out that the said conversations
were recorded in DVR and then, transferred into cassettes which were sent
to CFSL. Therefore, since those cassettes were there in original, so there is
no requirement of appending certificate under Section 65B of the IEA. It
is further pointed out that PW-1, who is the voice expert, has affirmatively
proved those cassettes alongwith transcripts before the learned Trial Court.
8
(1976) 2 SCR 921: AIR 1976 SC 202
9
(1976) 4 SCC 233
10
(1976) 1 SCC 644: MANU/SC/0137/1976
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Furthermore, those cassettes and transcripts were also exhibited in the
testimony of PW-2 without any objection. It is also the case of CBI that
since the objection regarding the mandatory requirement of certificate was
not raised at the time when those cassettes and transcripts were exhibited,
the same cannot be raised at the present stage. Only objection taken by the
appellants was during the examination of TLO/PW-15 and the same was
regarding the audibility of those exhibits. It is also the case of CBI that the
legal situation prevailing during 2005 would be applicable to the present
case. Reliance has been placed on Sonu v. State of Haryana11, in support
of this contention.
x) Regarding the recovery of the sofa-set from the residence of A-1, it is
submitted that, conversation recorded in cassette shows that the said sofa
set was sent by PW-9 to A-1 to the fulfil latter’s demand for illegal
gratification. It is further submitted that the recovery of the sofa is not
disputed however, A-1 has taken up a plea that the said sofa was a gift
which his wife-D1W8 had received at her marriage. It is pointed out that
though PW-3 was declared hostile however, from his testimony, it has
emerged that the colour of the sofa was the same which was sent from the
shop of PW-9 to the residence of A-1. It is further submitted that,
regarding the capacity of the sofa set delivered, PW-9 has only stated in
the complaint (Ex. PW-9/A) that a seven-seater sofa alongwith a side table
11
(2017) 8 SCC 570: MANU/SC/0835/2017
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was demanded however, it is PW-3 who has categorically stated that the
concerned sofa was a five-seater sofa.
xi) In respect of CDRs of the appellants and PW-9 it is submitted that the
learned Trial Court has refused to place reliance on them for the want of
the certificate under Section 65B of the IEA and even without the aid of
the said record prosecution has been to establish their case beyond
reasonable doubt against the appellants. It is pointed out that contact
number of A-1 and PW-9 has been mentioned in the complaint (Ex. PW-
9/A) itself and the contact number ascribed to A-2 was recovered at the
spot from the possession of the latter.
xii) Regarding the false implication of A-1 because of the grudge of the Insp.
Amit Vikram Bhardwaj, it is submitted that nothing has been placed on
record by A-1 to substantiate this plea. It is further submitted that had it
been a case of malice or false implication of A-1 then, the said Inspector
would not have signed Ex. PW-20/2 and could have remain hidden and
tried to interfere in the investigation as well as the proceedings of the
present case.
xiii) With respect to the registration of FIR, it is submitted that the contention
of the appellants that the other FIR being RC DAI 2005 A 0058 has
specimen of the concerned officer at Sr. No. 15; however, the present FIR
does not have the specimen of the concerned officer at Sr. No. 15 is
without any substantial proof as a comparison of both FIRs would show
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that both FIRs does not have specimens of concerned officer at Sr. No. 15.
Nothing has been placed on record by the appellants which would tend to
show that there were flaws in the registration of FIR in the present case.
Insofar as the delay in registration of FIR is concerned, the same can be
cogently explained from the entries in the register of concerned Ahlmad.
Moreover, nothing has been placed on record by the appellant to show that
there was delay on the part of CBI in sending the copy of FIR to the
concerned Court.
xiv) Therefore, in view of the aforesaid submissions, it is submitted that the
impugned judgment of conviction and order on sentence are not to be
interfered as the same has been passed after correct appreciation of facts
and material available on record and are to be upheld.
REBUTTAL SUBMISSIONS ON BEHALF OF THE APPELLANTS
7. Learned counsels for the appellants have made the following rebuttal
submissions: –
i) That the learned Trial Court has discarded the CDRs of A-2. Attention of
this Court has been drawn towards the testimony of PW-2, stock witness
and it is submitted that there has been a material contradiction in his
testimony as he denied the fact that whether A-2 had contacted any person
on the said day and has stated that no conversation had taken place in his
presence, which raises a doubt over the case of prosecution as to the
events that had taken place on 30.10.2024.
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ii) It is further pointed out that the testimony of PW-2 does not inspire
confidence as he himself has stated that he was standing at some distance
from the place where A-2 and PW-9 were having conversation and was
unable to hear as to what had transpired during the said conversation
between them. However, he has affirmatively testified to the extent that A-
2, after arriving in the shop of complainant/PW-9, had asked for collection
of seventy thousand rupees on the direction of A-1. This, in itself, is major
inconsistency in his testimony and thus creating a doubt on the
prosecution case.
iii) Regarding the recovery of sofa, it is submitted that, as per the testimony of
Rohit Saini (D1W2), it has been cogently proved before the learned Trial
Court that the subject sofa was lying in the house of A-1 much prior to the
date when CBI officials visited house of A-1 on the intervening night of
30/31.10.2005. It is further the case of the Appellant that the sofa has
never been produced before the Trial Court and nobody has identified the
said sofa during the trial.
iv) It is further argued that as per the RTI replies placed on record through the
testimony of HC Puram Lal (D1W1), it is manifestly clear that no raid as
claimed by the prosecution has been conducted at the PS Bhajan Pura on
30.10.2005 as there is no relevant roznamcha entry in the PS Bhajan Pura
pertaining to the said raid being conducted on the said day.
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v) Attention of this Court has been drawn towards the testimony of
TLO/PW-15 and it is submitted that he has admitted that the recording of
the conversations that took place on 30.10.2005 in the digital recorder has
been deleted and therefore, the possibility of those conversations and
transcripts prepared thereupon being manipulated cannot be ruled out.
vi) It is further submitted that this witness (TLO/PW-15) though has stated
the name of Amit Vikram Bhardwaj as one of the members of the team
sent to PS Bhajan Pura, the same cannot be relied upon and taken as
gospel truth as no other witness from the said raiding party has been
examined by the CBI during the course of trial. Attention of this Court has
been drawn towards site plan (Ex. PW-2/4) wherein the names of the
members of the raiding team (being CK Sharma, SS Bhullar, Insp. Amit
Vashisht), who were sent to PS Bhajan Pura on 30.10.2005, have been
mentioned and it is pointed out that in the said site plan the name of the
Inspector Amit Vikram Bhardwaj has not been mentioned. It is, therefore,
argued that either Insp. Amit Vikram Bhardwaj was present at the shop of
PW-9 at the time when A-2 was apprehended or all these documents have
been prepared afterwards so as to falsely implicate the present appellants.
ANALYSIS AND FINDINGS
8. Heard learned counsel for the parties and perused the record.
9. It is a matter of record that the complainant/PW-9 as well as the other
relevant witnesses sought to be examined by the prosecution in support of their
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case have turned hostile. It is argued by learned SPP that evidence of PW-2, i.e.,
the shadow witness and TLO/PW-15 can be looked into despite the fact that
complainant had turned hostile. Reliance has been placed on a judgment of the
Hon’ble Supreme Court in Neeraj Dutta (supra) in support of this contention. It
is also submitted that although the complainant/PW-9 has turned hostile, he,
however, in his testimony has admitted the fact that he had gone to CBI office to
make a complaint regarding Police Officials of P.S. Bhajan Pura. It is further
submitted that this shows that the complainant/PW-9 who has, however, turned
hostile at the time of his examination had otherwise made admissions which
corroborates the testimonies of PW-2 and TLO/PW-15, as stated by them, to the
extent that a raid was indeed organized and conducted on the date of the incident
by the CBI officials.
10. At this stage, it is relevant to note that as per the case of the prosecution,
the persons who were present at the spot were PW-2/shadow witness, the
complainant/PW-9, the other independent witness/PW-12, who was deputed
alongwith PW-2 to accompany the raiding team and TLO/PW-15 himself. Out of
these witnesses, PW-9 and PW-12 have turned hostile. PW-12, who was the
other independent witness, has not supported the case of the prosecution at all
and has stated on record that all the documents that he had signed were at the
CBI office on the next day.
11. Rajesh Kumar Arora, complainant/PW-9, in his testimony before the
learned Trial Court, has stated in the following manner: –
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“PW-9 Sh. Rajesh Kumar Arora S/o Sh. Har Kishan Lal Arora, aged 44
yrs., R/o T-2539, H.S. Road, Karol Bagh, Delhi.
At present, I am running a General Store at the above stated address.
In the year 2005, I was running a furniture shop under the name and style of
Shashwat Furnitures at Bharti Artists Colony, Preet Vihar, Delhi. On
22.10.05, at about 12.00/1.00 pm, two police men from Police Station
Bhajan Pura came to my shop and told that they have come from Police
Station Bhajan Pura and told that some murder has taken place in Bhajan
Pura and I was asked to come at Police Station on the next day ie. 23.10.05.
On the next day, I could not go to Police Station due to some urgent work at
home. When I reached at my shop on the same day in the evening, it was
told by my worker that a policeman had come to the shop and asked to come
to Police Station, otherwise, we know to call the person in Police Station.
On 24.10.05, I alongwith my relative went to Police Station, where I was
made to sit in a separate room. One of the policeman who had come to my
shop on 22.10.05 came to me and asked as to why I did not come on
23.10.05 and harassed me for not coming yesterday. Thereafter, I asked
them to call my relatives who were standing outside the room. My relatives
Sh. Vinod Kumar Verma and Sh. Surender Mittal came inside the room and
they told me that they have been informed by the police that two of the
persons who are involved in the murder case of Bhajan Pura, were sheltered
by staying at the shop in the night. Then, I told them that key of the shop
remains with me, then there is no question of sheltering them. Then I asked
my relatives to settle the matter as I am annoyed by the harassment of the
police. My relatives told that the police personnel are asking for one lakh
rupees to settle the matter. I told my relatives that I do not have the amount
of rupees one lakh. I further told that I need some time for arranging the said
amount. On this, my relatives talked to the police and took time till 27.10.05
to make arrangement of said amount. I came back from the Police Station.
Since, I was not inclined to pay the said amount, I contacted the CBI people
in this context on 26.10.05 and narrated the entire story. After hearing my
story, CBI Officials asked me to give the complaint in writing which I gave
on 27.10.05. After receiving my complaint, CBI officials called two
independent witnesses, name of whom, I do not recollect today, and I was
introduced by the CBI Officials with these independent witnesses.
Thereafter, I was asked to produce the bribe amount by the CBI Officials.
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The amount consist of currency notes of Rs.500/- and Rs.1000/-
denomination. I do not remember the exact number of notes. Thereafter, the
notes were treated with some powder and one the member of the team was
asked to touch the notes and to dip his hand in colour less solution. The
demonstration was given but what happened to the colour less solution, I do
not remember. I do not remember whether any other proceedings as I
narrated above, was done in the CBI office. Thereafter, at about 5.30 pm, we
left CBI Office for my shop with CBI Team. We reached at my shop at
about 6.30 pm on the same day. On that day, none of the policemen came to
my shop to collect the said amount. Again on 29.10.05, a policeman from
Police Station Bhajan Pura came to my shop to give message that I may
arrange the amount of Rupees one lakh by 30.10.05. I again visited CBl
Office on 30.10.05. The CBI officials repeated the same proceedings which
they had done on 27.10.05 at CBI Office after receiving my compliant. We
left CBI Office at about 4.30 pm for my shop and reached there at about
5.00/5.15 pm, CBI persons took their positions respectively as decided.
When the CBI officials checked their bag, they told that they have forgotten
to bring the audio recorder. CBI Officials asked me to arrange the audio
recorder. I went to arrange the audio recorder and when came back, it was
informed by my worker at my shop that he had handed over the amount to
Arun Sharma, who had come to collect money from Police Station Bhajan
Pura. When I came back at my shop, CBI Team was doing trap formalities.
Then, I was asked by CBI officials to write another complaint. I have been
shown the complaint (running into two pages) which is now exhibited as Ex.
PW9/A which bears my signatures at point A on both the pages. I have been
shown the FIR No.RC-DA-I-2005-A-0059 dated 30.10.05 which is Ex.
PW9/B which bears my signatures at point A at page no.4. I have been
shown handing over memo dated 30.10.05 already Ex.PW2/1 (running into
four pages) which was prepared in the CBI Office in which the number of
GC notes were recorded which bears my signatures at point B. I have been
shown cassette production and sealing memo dated 30.10.05 already Ex.
PW2/4 which bears my signatures at point Y. Further I have been shown
recovery memo already Ex. PW2/2 (running into ten pages) which was
prepared at my shop by the CBI officials which bears my signatures at point
Y.”
This witness was declared hostile and cross-examined by the learned APP
during which he denied the fact that the complaint that has been made against
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A-1 was lodged by him. Although, he has admitted that he had made a complaint
against the police officials of P.S. Bhajan Pura, however, he did not give the
name of those police officials. He has further denied the suggestion that it was
A-1/Arun Bali who had demanded bribe from him. He has further denied the
suggestion that he had sent any sofa set to A-1. He has further categorically
stated that he had made a complaint on 27.10.2005 against police officer of PS
Bhajan Pura and that the complaint (Ex. PW-9/A) which has been exhibited in
the Trial Court, on the basis of which the present RC was registered, was made
by him at the instance of the CBI officers on 30.10.2005.
12. In the present case, the CBI sought to prove the factum of demand of
illegal gratification through the testimonies of the complainant/PW-9 and his
relatives Vinod Kumar Verma (PW-11) and Surender Mittal (PW-14), who had
accompanied the complainant/PW-9 to the police station on 24.10.2005, when
the demand for illegal gratification was made by A-1. The prosecution further
rests their case on three audio tapes being, Q, Q1 and Q2 alongwith the expert
report (Ex.PW-1/B) matching the voice specimen of A-1. Further reliance was
placed on the CDRs reflecting the communication between the complainant/PW-
9 and A-1 and between A-1 and A-2 at the relevant point in time. As stated
hereinbefore, PWs No. 9, 11 and 14 have been declared hostile and one of the
independent witnesses, i.e., PW-12 (Vir Bahadur Singh), has also been declared
hostile. The cassettes Q, Q1 and Q2 when played before the learned Trial Court
were not audible and the same have been relied upon by the learned Trial Court
by relying on the expert report (Ex.PW-1/B). In these circumstances, the learned
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Special PP has relied heavily on the fact that an amount of Rs. 70,000/- was
handed over in the presence of PW-2 to A-2, who was alleged conduit for A-1.
Thus, in other words, the demand by A-1 has also sought to be proved by
acceptance of the bribe money by A-2 and its recovery from the spot. In the
aforesaid circumstances, the fact that A-1 and A-2 knew each other and
therefore, the latter was asked by the former in order to accept the alleged bribe
from PW-9 on his behalf becomes relevant and had to be proved by the
prosecution.
13. It is the case of the prosecution that, on 30.10.2005 during the pre-trap
proceedings, the A-1 had given a missed call to complainant/PW-9 and on the
instructions of CBI official PW-9 had called back A-1 during which it is alleged
that the latter had spoken with the complainant/PW-9 regarding the demand of
illegal gratification. Accordingly, the trap team arrived at the showroom of PW-
9, and as per shadow witness PW-2, A-2 arrived at the showroom and told PW-9
that he has been sent by A-1 for collecting the bribe amount. PW-9 then, called
A-1 on his mobile phone and after confirming the identity of A-2, the money
was handed over to him.
14. It is a matter of record that complainant/PW-9 has completely denied the
aforesaid position and, in fact, as per his statement, he was not present at his
shop and had gone alongwith PW-2 to arrange a voice recorder. Thus, PW-9 has
not supported the case of the prosecution regarding his communication with A-1
in respect of handing over of money to A-2 or that he handed over the money to
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A-2. Similarly, PW-12 (Vir Bahadur Singh), independent witness, has also not
supported the case of the prosecution with regard to the aforesaid incident.
15. The other circumstance relied upon by the prosecution was CDRs of the
mobile number being 9818718507 alleged to be used by A-2 and his
connectivity with alleged mobile number of A-1 i.e., 9818290099. It is the case
of the prosecution that on 30.10.2005, A-2 and A-1 had exchanged 3 calls with
each other. The aforesaid CDRs have been discarded by the learned Trial Court
itself in the absence of any certificate under Section 65B of the IEA. The other
circumstances relied upon with regard to presence of A-2 at the spot was the
conversations recorded in cassettes Q1 and Q2, which as pointed out
hereinabove, were not audible during the course of trial and has been relied upon
only on the basis of expert report (Ex.PW-1/B).
16. As per the testimony of TLO/PW-15, the complainant/PW-9 informed him
that he has to call his uncle (PW-14) who would disclose as to whom the bribe
money is to be handed over. From the said testimony, it has further come on
record that complainant/PW-9 called up the aforesaid PW-14, who informed the
former that A-1 will send somebody to collect the bribe money. Thereafter, they
waited for the concerned person to come to the showroom and at about 05:10
PM that day, one person was seeing coming inside the shop, who spoke to
complainant/PW-9. As per this witness, PW-2 (shadow witness) was standing at
close distance from PW-9 and the said person and on a pre-planned signed being
given by the shadow witness, the raiding team arrived at the spot and caught A-2
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who had the money in his hand. Thus, it is pertinent to note that till this point of
time, identity of A-2 was not known to anyone.
17. Except for the CDRs, which have not been relied upon by the learned trial
Court, there is no evidence on record which could show that A-1 and A-2 knew
each other beforehand and there is no iota of evidence either oral or documentary
to show that these appellants knew each other. A-2 is a private person, who
otherwise has no connection with A-1 at all, and, therefore, it is highly
improbable that A-1 would send a complete stranger to collect the bribe money
on his behalf.
18. The connection between A-1 and A-2 has been sought to be proved
through audio cassette Q-2, which was recorded at the spot and alleged to have
contained the voice of A-2. As pointed out hereinabove, all the three audio
cassettes, Q, Q1 and Q2 when played in the learned Trial Court were inaudible.
In fact, in the evidence of TLO/PW-15, it has categorically come on record that
the audio cassettes were not audible. The relevant portion of the testimony of
TLO/PW-15 reads thus: –
“It is correct that cassettes Q-1 and Q-2 heard by me during my examination
in chief were not clear and the same was not audible being distorted due to
very much disturbance of traffic and other persons. It is also correct that I
could not point out or identify the voices of the persons in the aforesaid
cassettes due to heavy disturbance being unaudible. It is also correct that
several times attempts were made to play the said cassettes but it could not
be done so due to the aforesaid reason. …….”
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19. It is pertinent to note that the learned Trial Court has relied upon the
testimony of the expert and report (Ex. PW-1/B) given by him to hold that the
voice of A-2, A-1 and complainant/PW-9 has been examined by the expert (PW-
1). A perusal of the Ex.PW-1/B would show that the cassettes i.e., Q, Q1 and Q2
were forwarded to the laboratory with forwarding letter dated 27.12.2005
alongwith transcriptions of the telephonic conversation between the
complainant/PW-9, A-1 and A-2, however, it has come on record that the
transcripts in the present case, i.e., Ex. PW2/7, PW-2/8, PW-2/9, PW-2/10 and
PW-2/11, were prepared on 24.04.2006 much after the forwarding letter has been
sent to the CFSL. There is nothing on record to show that as to which transcript
was sent by the CBI to the CFSL alongwith the said forwarding letter. In these
circumstances and in absence of the comparison by any witness, of the aforesaid
transcript with the voices contained in the cassettes before the learned Trial Court,
the mere reliance on the aforesaid report is not tenable. There is, admittedly, no
evidence on record to show that any of the witnesses identified the voices
contained in the cassettes by comparing with the transcript, or for that matter,
comparing the transcript with the conversation in the cassettes. In these
circumstances, no reliance can be placed on the aforesaid cassettes.
20. It is the case of the prosecution that mobile number 981829099 belong to
A-1 and mobile number 9818718507 belong to A-2. Reliance has been placed on
the CDRs placed on record by the Nodal Officer to show that there were calls
between these two numbers on the said date, i.e., 30.10.2005, at the relevant point
in time. It has come on record that the mobile number being attributed to A-2 was
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in the name of one Mr. Vijeta. The said Vijeta has not been examined. No other
evidence has been placed on record to show that this number was being used by
A-2. The subscriber details available with the service provider alongwith the
customer application form (CAF) has not been placed on record. It is pertinent to
note that in the CDR the three calls relied upon by the prosecution in order to
connect A-1 with A-2 were made on the date of alleged incident, i.e., 30.10.2005.
However, there is no call reflected prior to or after the alleged date of incident in
the CDR which could show any connectivity between these two numbers. If the
appellants knew each other and were having conversation on these numbers in
between themselves then there ought to have been other calls exchanged between
them prior to 30.10.2005 or thereafter. Learned Trial Court holds that since the
telephone has been shown in the seizure memo post the arrest of A-2 at the spot,
it should be presumed that the number belonged to the said appellant. As noted
hereinbefore, the proceeding alleged to have been conducted at the spot is itself in
shadow of doubt. Thus, no evidence has been proved to show that A-2 was using
this mobile phone at that relevant point in time.
21. Learned SPP for CBI had submitted that the objection with regard to
exhibiting of the CDRs without a certificate under Section 65B of the IEA was
not taken and, therefore, there was no opportunity for the CBI to have led the
evidence on record. In this regard, it will be relevant to observe that IO/PW-20,
who had filed the chargesheet, during his cross-examination, was shown the
judicial record of the case and after seeing the same he had admitted and
acknowledged that no certificate under Section 65B of the IEA was placed on
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record. In these circumstances, the prosecution was already put to notice that
there was no certificate under Section 65B of the IEA on record and despite the
same, no attempt was made to lead any additional evidence with regard to the
certificate under Section 65B of the IEA. Be that as it may, this Court is of the
considered opinion that mere CDRs would not establish the connection of the A-2
with the mobile number, being 9818718507, in absence of any other evidence to
support that the A-2 was the actual user of the said mobile number during the
relevant point in time.
22. PW-2 (Rang Lal), shadow witness, has in his testimony recorded before
the learned Trial Court stated that on 30.10.2005, he was working as Field
Officer in NCCF, Nehru Place and on that date, he was directed by his senior
officers in writing to attend CBI office at CGO Complex. It has come on record
by way of testimony of D1W4, who was summoned witness, posted with NCCF
and had brought the attendance register of the trading section for the month of
October 2005, more specifically, of 30.10.2005. As per the said register, the
attendance record pertaining to PW-2 was at serial No. 15 at point A Ex.
D1W4/DA (colly). It has further come on record that on 30.10.2005, none of the
office staff of NCCF had attended the office as it was a weekly off being
Sunday.
23. D1W4 has further placed on record letter dated 27.10.2005, received from
Superintendent of Police, CBI, ACB (Ex. D1W4/A-1). In response to the same, a
letter of the even date was issued by A.K. Malhotra, Deputy Manager
(Vigilance), requisitioning N.K. Awasthi, Assistant Manager, Accounts and
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Rang Lal (PW-2), Field Officer, to attend the CBI Office on 28.10.2005 at 10:00
A.M which has been exhibited as Ex. D1W4/A-2. Thus, there was no occasion
for PW-2 to be present with the CBI team on 30.10.2005.
24. Further, PW-2 has also admitted the fact that he had been witness for the
CBI in other cases as well. It is pertinent to note that no authority has been
placed on record to show that PW-2 was summoned by CBI on the date of
incident, i.e., 30.10.2005, which happened to be a Sunday. In view of the fact
that the other independent witness (PW-12) has turned hostile, it would not be
safe to rely on the testimony of PW-2 for the purpose of establishing the fact that
PW-9 has spoken with A-1 from his phone to confirm the identity of A-2.
25. A-2 has also examined Mr. Kamal Kishore (D2W1) in his defence, who
was working at the showroom of complainant/PW-9 at the relevant point of time.
As per this witness, on 30.10.2005, CBI team had come to the shop alongwith
Rajesh Kumar (PW-9) at about 06:00 PM and they were 10-12 in number. He
has further stated that after sitting for some time, they instructed PW-9 to arrange
one tape recorder as they had forgotten to bring the same, and accordingly, PW-9
left the shop alongwith some other person to get a tape recorder. He further
stated that PW-9 while leaving the shop had handed over to him a packet that
contained currency notes with instructions that, in case, it is demanded by CBI
officials, then he should hand over the same to them. As per this witness, at
about 08:00 PM, one Arun, whose name he got to know later, came to the shop
and made an inquiry for one “settee”. After some conversation with Arun, D2W1
told him that the owner of the shop (PW-9) can tell whether he can get the settee
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manufactured for him or not. On this, Arun asked D2W1 to inquire from PW-9
but D2W1 told him PW-9 does not have any phone. As per D2W1, in the
meantime, CBI officials came there and started talking to Arun (A-2) and when
the latter inquired from the CBI team whether they are the owners of the shop
then, there was an altercation/quarrel between them. Thereafter, it is stated by
him that CBI officers asked him to hand over the packet of cash given to him by
PW-9, which he handed over to them, and thereafter, they left the shop except 2-
3 officers, who remained in the shop. This witness further stated that PW-9
returned to the shop at 09:00 PM and he conveyed the entire incident to him.
This witness further stated that PW-9 was asked by officer of CBI to write a
fresh complaint on which the latter told him that he has already given a
complaint in the office but on the insistence of the CBI team he wrote a fresh
complaint on their dictation. This witness was cross-examined by learned PP for
CBI, however, he maintained his line of deposition stated by him in
examination-in-chief and denied the suggestions put to him by the prosecution.
26. Yet another discrepancy in the prosecution case is that in the handing over
memo Ex. PW-2/1, it is clearly mentioned that the digital recorder was handed
over to the complainant/PW-9, however, in his examination recorded on
03.11.2011, TLO/PW-15, he had stated as follows: –
“We also arranged three number of cassettes make TDK-90 and a Sanyo
Compaq cassette recorder.”
This fact is conspicuously absent in the handing over memo (Ex. PW-2/1).
This witness, in his cross-examination, has also admitted that whatever is handed
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over to the complainant/PW-9 and tagged alongwith the trap team is mentioned in
the handing over memo. The fact that the aforesaid cassette recorder and TDK
cassettes were not mentioned in the handing over memo, in fact, corroborates the
statement made by complainant/PW-9, which is further corroborated by the
testimonies of PW-12 and D2W1 that after reaching the spot, the CBI team
realized that the tape recorder was not available, and thus, complainant/PW-9
alongwith PW-2 had gone to arrange the aforesaid items.
27. Similarly, TLO/PW-15, in his cross-examination, has stated that all the
written work was done at the spot itself, however, PW-2 in his examination-in-
chief has candidly admitted that after the raid he had left the place of occurrence
for his house and the memos were prepared when he had again visited the CBI
office. The relevant portion of his testimony reads thus: –
“At about 11.30 pm, I left the place of occurrence for my house. Thereafter
I again visited the CBI office and memos were prepared at the CBI Office.
Cassette was played. I do not remember if any transcript was prepared.”
This also further creates a dent in the prosecution story with respect to
papers being prepared at the spot.
28. The other circumstance sought to be proved by the prosecution against the
A-1 is that during the search of his house in search memo Ex. PW-20/2, it is
stated that a sofa set was found which was alleged to have been sent by the
complainant/PW-9 as part payment for the alleged demand of illegal gratification
made by him. The prosecution has relied on the statement of PW-3, worker in the
shop of complainant/PW-9, in this regard however, the latter has turned hostile
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during the course of his testimony and had not supported the case of the
prosecution. Similarly, PW-17 who was part of the raiding party also did not
support the case of the prosecution in this regard. Nothing was placed on record
to show that the sofa set had come from the shop of the complainant/PW-9. The
complainant/PW-9 himself, as noted hereinbefore, has not supported the case of
the prosecution. The other corroborative evidence, which was relied upon by the
prosecution was a tape-recorded conversation in which such a transaction had
been discussed. Those conversations, in view of the discussion hereinabove,
cannot be relied upon, and therefore, there is no admissible evidence on record to
show that the sofa set found during the house search of A-1 was the same sofa set
which was alleged to be sent by the complainant/PW-9. In fact, A-1 has examined
D1W8 (his wife), D1W2 (Rohit Saini-his neighbour) as defence witnesses to
establish that the sofa set had been in his house much prior in time and was a gift
which his wife had received in their marriage from her brother.
29. Another evidence which has been sought to be proved by the prosecution
against A-1 for proving the alleged demand of illegal gratification is the latter’s
personal police diary (Ex. PW-20/1) which was seized in a raid conducted by CBI
team on 31.10.2005 at police station Bhajan Pura. It is the case of learned SPP for
the CBI that a raid was conducted in the room of A-1 in the PS Bhajan Pura by
the CBI team and a case dairy pertaining to the case FIR No. 425/05 was
recovered from the said room in the presence of the SHO, Ombir Singh (PW-13).
It was submitted that the hand writing expert has opined that the specimen sample
of the A-1 and the writing in the diary had matched. The reliance on this diary has
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been placed in order to corroborate the evidence of demand of illegal gratification
made by A-1.
30. To disprove the recovery of the said personal diary, A-1 has examined HC
Puran Lal (D1W1), who was a summoned witness, and had brought the record
consisting of RTI application dated 18.11.2010 (Ex. D1W1/DA) filed by A-1
seeking the details of the raid, if any, conducted by the CBI team at PS Bhajan
Pura on 30.10.2005. In response to the said RTI application of A-1, a letter dated
03.12.2010 (Ex. D1W1/DB) was issued by Public Information Officer-cum-Addl.
Deputy Commissioner of Police, North-East Distt., Delhi whereby, it was
informed that no raid was conducted by CBI/ACB at PS Bhajan Pura on
30.10.2005, as per roznamcha, as there is no entry in roznamcha. Therefore, in
view of the testimony of D1W1 and the documents brought on record by way of
his testimony, the recovery of personal police diary (Ex. PW-20/1) is doubtful
and cannot be relied upon. In any case, this document has been relied upon to
show that A-1 had complainant/PW-9’s mobile number. This circumstance, in
absence of other evidence, cannot prove the charges levelled against A-1.
31. In his defence, the A-1 has stated that the entire case had been foisted
against him at the instance of one Inspector Amit Vikram Bhardwaj. It has come
on record that the aforesaid Amit Vikram Bhardwaj was part of the search
conducted at the room belonging to A-1 in the police station Bhajan Pura. The
recovery memo of the aforesaid diary being Ex.PW-20/2 has been signed by this
Inspector Amit Vikram Bhardwaj. It has also come on record that TLO/PW-15,
during his cross-examination recorded on 20.03.2012, has admitted the fact that
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the aforesaid Inspector Amit Vikram Bhardwaj was part of the aforesaid team
sent to P.S. Bhajan Pura on 30.10.2005 but his name has not been mentioned in
the handing over memo (Ex. PW-2/1). Admittedly, this Inspector Amit Vikram
Bhardwaj has not been examined by the prosecution during the course of trial. It
is also an admitted case of the prosecution that a team was sent by TLO/PW-15 to
P.S. Bhajan Pura immediately after the proceedings culminated at the shop of
PW-9. In his examination-in-chief recorded on 03.11.2011, TLO/PW-15 had
stated as under: –
“After completion of proceedings at the spot, I sent Inspector C.K. Sharma,
Inspector Umesh Vashisht and Inspector S.S. Bhullar to P.S. Bhajan Pura
for arresting accused Ajay Bali where it was informed that accused Ajay
Bali was not available was not available with the police station alongwith
the jurisdictional area”.
This witness does not take name of Inspector Amit Vikram Bhardwaj. In
fact, Inspector Amit Vikram Bhardwaj was never examined by the prosecution
during the course of trial and despite being cited as witness, he was dropped
subsequently.
32. The prosecution had sought to prove the alleged demand of illegal
gratification made by A-1 through the testimonies of PW Nos. 9, 10, 11, 12, 14
who have not supported the case of the prosecution at all. Thereafter, it was
sought to be proved through the testimony of PW-2, shadow witness, which has
been, as discussed hereinbefore, cannot be relied upon as the same did not inspire
confidence. It was, again, contended that the recovery of bribe money from A-2
corroborate the story of the prosecution and proves the demand of illegal
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gratification, however, the same was not cogently proved by the prosecution by
way of the evidence adduced before the learned Trial Court. In the considered
opinion of this Court, the prosecution has failed to establish any link between A-1
and A-2. Similarly, the audio cassette, in absence of being played, cannot be
relied upon.
33. In the totality of the facts and circumstances of the present case, the
prosecution has not able to prove their case and the charges levelled against A-1
and A-2 beyond reasonable doubt, and hence, the impugned judgment of
conviction dated 08.03.2013 and order on sentence dated 13.03.2013 are set
aside.
34. The present appeals are allowed. Both the Appellants stand acquitted of the
charges levelled against them.
35. Bail bonds stand discharged.
36. Pending applications, if any, also stand disposed of accordingly.
37. Copy of the judgment be sent to the concerned Jail Superintendent for
necessary information and compliance.
38. Judgment be uploaded on the website of this Court, forthwith.
AMIT SHARMA, J.
DECEMBER 20, 2024/bsr/nk
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