Delhi District Court
Cbi vs Kapil on 6 August, 2025
CBI vs. Kapil & Anr.
DLCT110003962020
IN THE COURT OF SH. PRASHANT SHARMA,
SPECIAL JUDGE, PC ACT, CBI-15,
ROUSE AVENUE DISTRICT COURT NEW DELHI
CBI CASE NO. 43/2020
CNR NO. DLCT11-000-396-2020
FIR NO. RC-DAI-2020-A-0003-ACB-CBI-DL
UNDER SECTION 120-B IPC READ WITH SECTION
7 OF PREVENTION OF
CORRUPTION ACT, 1988
(As amended in 2018)
COMPLAINANT CENTRAL BUREAU OF
INVESTIGATION
REPRESENTED BY SH. NEETU SINGH, LD. SR. PP
ACCUSED 1. KAPIL
S/o Late Sh. Om Prakash
R/o WZ-296B, Madipur Village,
Delhi-110063.
2. DHAN SINGH
S/o Sh. Ram Kishan
R/o A-2/43, Sultanpuri C Block,
Sultanpuri, North-West Delhi-110086.
REPRESENTED BY Sh. Navit Bansal, Ld. Counsel for
accused no.1 - Kapil
Sh. Vikram Singh, Ld. Counsel for
accused no.2 - Dhan Singh
Digitally signed
CBI Case No.43/2020 by PRASHANT Page 1 of 187
SHARMA
PRASHANT
Date:
SHARMA 2025.08.06
16:10:21
+0530
CBI vs. Kapil & Anr.
DATE OF OFFENCE
24.01.2020 & 25.01.2020
DATE OF FIR
24.01.2020
DATE OF INSTITUTION
15.12.2020
DATE OF FRAMING OF
06.10.2021
CHARGES
DATE OF
08.11.2021
COMMENCEMENT OF
EVIDENCE
DATE ON WHICH
04.07.2025
JUDGMENT IS RESERVED
DATE OF JUDGMENT
06.08.2025
FINAL ORDER
CONVICTION
TABLE OF CONTENTS
Contents Page Nos.
S. No.
Prosecution Version and Allegations 5-12
1.
Charge on Accused Persons 12
2.
Proceedings during Trial
3.
Prosecution Evidence 13-43
Statement of Accused Persons 43-44
Defence Evidence 44-45
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Law relating to appreciation of Oral 45-48
4.
Evidence
Recapitulation of Prosecution Case 48-52
5.
Appreciation of Prosecution Evidence
6.
Oral testimonies 52-114
CDR & CAF Record 114-117
Tape Recorded Statements & Their 117-139
Transcripts
CFSL Report 139-142
Law relating to Statement of Accused 143-144
7.
Under Section 313 CrPC
Appreciation of Statement of A-1 Under
8.
Section 313 CrPC 145-152
Appreciation of Statement of A-2 Under
Section 313 CrPC
Appreciation of Defence Evidence 152-155
9.
Appreciation of Defence Arguments of
10.
A-1 155-171
Appreciation of Defence Arguments of
A-2
CONCLUSION 171-187
11.
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JUDGEMENT
1. Greed and Corruption are closely associated with each
other. Greed can lead individuals to prefer their financial /
materialistic well being over ethical considerations and well being of
others. Often, greed can lead to corruption which erodes public trust
in institutions, leading to social instability.
1.1 This case is one such example, which highlights, how
MCD officials, who are Sanitary Officials and who are meant to clean
the city, failed to clean their own minds from greed, leading them to
face trial.
2. Central Bureau of Investigation (hereinafter referred to
as ‘CBI’), in this case, has charge-sheeted two accused persons
namely; Kapil and Dhan Singh. At the time of alleged offence,
accused Kapil was working as Assistant Sanitary Inspector
(hereinafter referred as ‘ASI’) and accused Dhan Singh was
working as Safai Karamchari in South Delhi Municipal Corporation
(hereinafter referred to as ‘SDMC’). Accused Kapil shall be
referred as A-1 and accused Dhan Singh shall be referred as A-2 in
subsequent paragraphs.
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PROSECUTION VERSION & ALLEGATIONS
3. Facts alleged by prosecution shorn of much detail, which
can be gleaned from charge-sheet are;
3.1 On 24.01.2020, complainant, namely Ranvir Singh had
given written complaint to Superintendent of Police (hereinafter
referred to as ‘SP’), CBI and Assistant Commissioner of Police
(hereinafter referred to as ‘ACP’), Delhi stating that he was
working as Safai Karamchari in Department of Delhi Environment
Management Services (hereinafter referred to as ‘DEMS’), Ward
No.03S, Raja Garden, South Delhi Municipal Corporation. After
completing 22 years of service, he was regularized as regular
Swachchta Karamchari by SDMC. When he approached A-1 for
joining as regular Swachchta Karamchari, he was told by A-1 that
Sanitary Inspector (hereinafter referred to as ‘SI’) Rajendar Sharma
was demanding Rs.15,000/- for providing him with post and in case,
he failed to pay the bribe, SI Rajendar Sharma will not give him any
post. Based on the said allegations, complainant prayed that
appropriate legal action be taken against A-1 and SI Rajendar Sharma.
3.2 After receiving above mentioned complaint, SP, CBI
directed SI Vikrant Tomar to verify the same. Consequently
verification was conducted on 24.01.2020 by CBI team which visited
SDMC, the Department of DEMS. That team prepared report dated
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24.01.2020 which was accompanied with recorded conversation
between complainant and accused A-1. Based on such verification
report, it was found that prima facie offence punishable under Section
7 of Prevention of Corruption Act, 1988 as amended in 2018,
(hereinafter referred as ‘PC Act‘) was committed by A-1.
Consequently, FIR in question was registered and matter was handed
over to Inspector Dharmendar Kumar Singh for investigation.
3.3 During investigation, a team comprising of Inspector
Dharmendar Kumar Singh, complainant, two independent witnesses,
namely; Nitin and Naveen Bhardwaj along with CBI team members
assembled in CBI office. Pre-trap proceedings were conducted, which
included following activities viz.,
(i) Complainant furnished Govt. Currency notes (in short
GC notes) of Rs. 15,000/- of specific denomination;
(ii) Handing over memo was prepared in which details of
cash notes were mentioned;
(iii) GC notes were treated with phenolphthalein powder;
(iv) Demonstration of effect of phenolphthalein powder
with sodium carbonate solution turning that colourless
solution into pink colour, was given to the team members;
(v) CBI brass seal was furnished by independent witness
namely Nitin Kumar and same was used in verification
proceedings held on 24.01.2020;
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(vi) Tainted bribe amount of Rs. 15,000/- was kept by
independent witness, namely, Nitin Kumar in the right side
pant pocket of complainant;
(vii) Direction was given to complainant to not touch such
tainted bribe amount and the same be handed over to the
accused only on the specific demand of accused and not
otherwise and in the alternative, on the specific direction of
accused to some other person;
(viii) One new SD card was opened in the presence of both
independent witness and complainant. Same was inserted in
recording device;
(ix) All the team members washed their hands with soap and
water;
(x) Nitin Kumar (independent witness) was asked to act
as shadow witness and to remain close to complainant for
overhearing the conversation and for watching the
transaction of bribe amount being given by the complainant
to A-1;
(xi) Complainant was directed to give signal by rubbing
his face with his both hands after conclusion of handing over
bribe amount to A-1;
(xii) Besides giving said signal, complainant was asked to
give a missed call from his mobile phone to the mobile being
carried by Trap Laying Officer (hereinafter referred to as
‘TLO’), immediately after conclusion of transaction of
bribe;
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(xiii) Further, the independent witness, namely Naveen
Bhardwaj was directed to remain with trap team.
3.4 All the said pre-trap proceedings were concluded at about
12:55 hrs and were recorded in handing over memo dated 25.01.2020.
All the trap team members signed the handing over memo at CBI
Office, in token of its correctness and genuineness.
3.5 Subsequently, said trap team left CBI Office in official
vehicles and reached DEMS, SDMC, Raja Garden where after
parking the vehicle on the service, it was decided that complainant
shall go and meet A-1 in his office while carrying recording device.
The recording device was handed over to complainant in ‘Switch-On’
mode, which complainant kept in left side pocket of his shirt.
3.6 Thereafter, complainant alongwith shadow witness left
for Ward Office, DEMS, SDMC while independent witness Naveen
Bhardwaj and remaining team members followed them and took their
positions in and around SDMC Ward Office.
3.7 When complainant went inside SDMC Ward Office, he
found that A-1 was not present. Thereafter, complainant went to meet
SI Rajendar Sharma in his office situated at 618, First Floor, Four
Storey Building, Vishal Enclave, New Delhi but SI Rajendar Sharma
refused to give him any posting. As such, SI Rajendar Sharma did not
demand bribe explicitly and complainant returned back to CBI team.
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3.8 Subsequently, trap was again laid on the same day and
complainant was sent to A-1. On meeting A-1, complainant found A-1
got agitated as complainant had met SI Rajendar Sharma. ASI
Rameshwar, who was present there, told complainant to resolve the
issue.
3.9 Complainant was then referred to A-2, Safai Karamchari,
SDMC by A-1. Accused A-2 escorted complainant outside and talked
to A-1 on mobile phone. He emphasized on the demand of Rs.
20,000/- by A-1. Thereafter, complainant returned back to CBI team.
3.10 Complainant was again sent to meet A-1, who refused to
accept any bribe money without the consent of SI Rajendar Sharma.
3.11 All the proceedings of 25.01.2020, as noted above, were
recorded in SD card Q-2 through recording device. Copy of said SD
card was prepared. SD card Q-2 was then packed in plastic case and
then it was put in brown colour envelope which was sealed. Said
plastic cover and brown colour envelope were signed by complainant,
independent witnesses and TLO. The Panchnama dated 25.01.2020
was prepared in CBI Office which was signed by complainant,
independent witness and all the team members.
3.12 On 27.01.2020, the complainant received a call from A-2,
who asked complainant to meet A-1 on 28.01.2020. A trap was again
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laid on 28.01.2020. Proceedings on 28.01.2020 were recorded in SD
card Q-3, through recording machine. A copy of the SD card was
prepared, SD card Q-3 was packed in a plastic case and then it was
put in brown colour envelope and sealed. Said plastic cover and
brown colour envelope were signed by the complainant, independent
witnesses and TLO.
3.13 Subsequently, investigation of the case was entrusted by
SP, CBI to Sub-Inspector Sumit Kumar. Permission under Section 17
PC Act was obtained.
3.14 During investigation statements of witness were
recorded. Vide separate voice identification-cum-transcription memo,
transcription of recorded conversation by playing copy of SD cards
Q-1, Q-2 and Q-3 were prepared in the presence of complainant and
both independent witnesses. Complainant identified his voice and that
of accused. Complainant also identified the voice of SI Rajendar
Sharma, ASI Ramesh and A-2. Transcription-cum-voice identification
memo was signed by complainant and both independent witnesses.
A-1, SI Rajendar Sharma, ASI Ramesh and A-2 were asked to join
investigation and their specimens voices were recorded in the
presence of independent witnesses.
3.15 Original SD card Q-1, Q-2, Q-3, S1 to S4 alongwith two
DVRs in sealed condition were sent to Central Forensic Science
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Laboratory (hereinafter referred to as ‘CFSL’) for getting expert
opinion based on comparison of voice of accused persons with their
respective specimen voices.
3.16 CFSL report was furnished in the Court after filing of
charge-sheet on 17.08.2021 alongwith original SD cards and DVRs.
3.17 Witnesses, namely, SN Vashisth, Sanitary
Superintendent, Ward 003 S, DEMS, SDMC and Rameshwar Dayal,
Assistant Sanitary Inspector, identified the voice of A-1, SI Rajendar
Sharma & A-2. Besides that witness SN Vashisth identified the voice
of ASI Rameshwar also. Same was done in the presence of
independent witness who was well acquainted with the voice of the
said persons.
3.18 Call Details Record (hereinafter referred to as ‘CDR’)
and Customer Acquisition Form (hereinafter referred to as ‘CAF’)
of mobile numbers of accused persons and complainant alongwith
certificate under Section 65-B of Indian Evidence Act were collected
from the concerned service providers.
3.19 Witness Pradeep Sharma, AO, DEMS, SDMC produced
documents viz., posting orders of SI Rajendar Sharma, A-1, ASI
Rameshwar Dayal and joining report of complainant. His statement
with regard to the said orders and postings was recorded separately.
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3.20 Based on above mentioned investigation, IO concluded
that accused persons A-1 and A-2 had committed offence punishable
under Section 7 of PC Act and under Section 120-B of Indian Penal
Code (hereinafter referred to as ‘IPC‘). The charge-sheet was
accompanied with necessary sanction orders for prosecution under
Section 19 of PC Act, which was accorded by the competent
authority.
4. After filing of the charge-sheet, Court took cognizance of
offences on 18.12.2020.
CHARGE ON ACCUSED PERSONS
5. Proceedings under Section 207 Cr.P.C were concluded
and after hearing arguments on charge, accused persons were charged
with Section 120-B IPC r/w Section 7 of PC Act, collectively as well
as for the substantive offence under Section 7 of PC Act, individually.
Accused persons did not plead guilty and claimed trial.
6. Matter was then fixed for prosecution evidence.
7. Prosecution examined 15 prosecution witnesses (in short
“PWs”) in total.
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PROSECUTION EVIDENCE
8. PW1 – Rajiv Vashisht deposed in his testimony that
since 2019, he was working as Nodal Officer in Bharti Airtel Ltd. In
2020, Bharti Airtel Ltd. received a letter from CBI, thereby seeking
CAF and CDR with respect to mobile numbers 9312109329 and
9212604605. He was authorized by Bharti Airtel Ltd. to furnish the
said documents to CBI. Consequently, he responded CBI by writing a
letter Ex.PW1/1, bearing his signature at point A. He identified copy
of CAF pertaining to mobile no.9312109329, which was in the name
of Ranveer Singh (complainant herein) as Ex.PW1/2 bearing his
signature and seal at point A and B respectively. He identified CDR of
the said mobile number for the period from 22.01.2020 to 25.01.2020
as Ex.PW1/3 (colly), bearing his signature and seal at point A & B
respectively. He identified copy of CAF of mobile no.9212604605,
which was in the name of A-1 as Ex.PW1/4, bearing his signature and
seal at point A and B respectively. He identified CDR of said mobile
number of A-1, for the period from 22.01.2020 to 25.01.2020 as
Ex.PW1/5, bearing his signature and seal at point A & B respectively.
He marked the entries with red pen, showing communication between
the users of said mobile numbers, on the day of his testimony. He
identified certificate under Section 65-B of Indian Evidence Act (in
short ‘IEA’) dated 05.08.2020, pertaining to above mentioned
electronic record as Ex.PW1/5A, bearing his signature and seal at
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point A & B respectively. He furnished CDRs of above mentioned
mobile numbers to CBI for the period 25.01.2020 to 03.02.2020, vide
his letter Ex.PW1/6 bearing his signature and seal at point A & B
respectively. When he was asked by CBI on 19.02.2020, he identified
CDRs of said mobile numbers as Ex.PW1/7 and Ex.PW1/8, bearing
his signature and seal at point A & B respectively. He identified
certificate under Section 65-B IEA dated 19.02.2020 with respect to
said electronic record as Ex.PW1/9 bearing his signature and seal at
point A & B respectively.
9. PW2 Saurabh Aggarwal deposed in his testimony that
in 2020, he was posted as Nodal Officer in Vodafone Idea Ltd., at
Okhla. CBI had made correspondence with Vodafone, pertaining to
this case, at that time and had asked for CAF and CDR of mobile
numbers 8527598608 and 9654397973. That record was handed over
to CBI vide handing over cum taking over memo dated 05.08.2020,
Ex.PW2/1, bearing his signature at point A. He identified CAF record
of mobile number 9654397973 as Ex.PW2/2, which was in the name
of Ms. Sapna W/o Sh. Kapil, bearing his signature and seal at point A
& B respectively. The CDR of the said mobile phone was identified
by him as Ex.PW2/3, bearing his signature on all pages and seal of
his office at points A & B respectively. He identified certificate under
Section 65-B IEA with respect to said record as Ex.PW2/4, bearing
his signature and seal of his office at point A & B respectively. He
identified CAF with respect to mobile number 8527598608, as
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Ex.PW2/5, bearing his signature and seal of his office at point A & B
respectively, which was in the name of North Delhi Municipal
Corporation (in short ‘NDMC’), which was used by the user namely
Rajendar Sharma. He identified CDR of the said mobile number as
Ex.PW2/6, bearing his signature and seal of his office at point A & B
respectively. He identified certificate under Section 65-B IEA with
respect to said electronic record as Ex.PW2/7, bearing his signature
and seal of his office at point A & B respectively. He identified CDR
of the said mobile number for the period 25.01.2020 to 03.02.2020, as
Ex.PW2/8, bearing his signature and seal of his office at point A & B
respectively. He identified certificate under Section 65-B IEA with
respect to said CDR as Ex.PW2/9, bearing his signature and seal of
his office at point A & B respectively. As per him, on 17.03.2020, on
the asking of CBI, he had handed over CDRs of mobile number
9654397973 to CBI vide letter Ex.PW2/10, bearing his signature at
point A. He identified CDR of said mobile number for the period
25.01.2020 to 03.02.2020 as Ex.PW2/11, bearing his signature at
point A and seal of his office at point B. He identified certificate
under Section 65 B IEA with respect to said electronic record, as
Ex.PW2/12, bearing his signature and seal of his office at point A &
B respectively.
10. PW3 – Ranveer Singh was the complainant in this case,
who reiterated his allegations, as made by him, in his complaint to
CBI, in his examination in chief, which are not repeated here for the
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sake of brevity. He identified his complaint made to CBI as
Ex.PW3/1 bearing his signature at point A. Besides that, he deposed
about the proceedings based on verification of his complaint done by
CBI, pre-trap proceedings and trap proceedings, in sync with
prosecution version as mentioned in para-3 of the judgment. Same are
not repeated here for the sake of brevity. He identified documents
viz., verification memo prepared by CBI in his presence Ex.PW3/2,
bearing his signature at point A, transcript of file 200124_1437 in SD
card Ex.PW3/3, transcript of audio file bearing number 200124_1530
Ex.PW3/4, envelopes with SD card Ex.PW3/5, handing over
memorandum Ex.PW3/6, Panchnama proceedings dated 25.01.2020
Ex.PW3/7 bearing his signature at point A on all four pages,
transcript of audio file no.200125_1226 Ex.PW3/8, transcript of
audio file no. 200125_1230 Ex.PW3/9, transcript of audio file
no.200125_1358 Ex.PW3/10, transcript of audio file no.
200125_1417 Ex.PW3/11, envelope and enclosures Ex.PW3/12,
transcript of audio file no. 200125_1528 Ex.PW3/13, Panchnama
proceedings Ex.PW3/14, memo bearing his signature at point A
Ex.PW3/15, yellowish colour envelope, brown colour envelope,
paper packet, plastic cover, SD card collectively as Ex.PW3/16,
transcript of audio file no.200128_1150 Ex.PW3/17, transcript of
audio file no.200128_1152 Ex.PW3/18, transcript of audio file
bearing no.200128_1156 Ex.PW3/19, transcript of audio file bearing
no.200128_1340 Ex.PW3/20, transcript of audio file bearing
no.200128_1359 Ex.PW3/21, transcript of audio file bearing
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no.200128_1529 Ex.PW3/22, transcript of audio file bearing
no.200128_1536 Ex.PW3/23, transcript of audio file bearing
no.200128_1537 Ex.PW3/24, transcript of audio file bearing
no.200128_1645 Ex.PW3/25, transcript of audio file bearing
no.200128_1646 Ex.PW3/26, transcript of audio file bearing
no.200128_1701 Ex.PW3/27. He identified Panchnama proceeding
Ex.PW3/28 bearing his signature at point A and transcript along with
voice identification-cum-transcription memos Ex.PW3/29 (colly). He
identified yellow envelope and brown envelope and DVR (I) as
Ex.PW3/30 (colly). He identified the electronic record which were
used during investigation. He also deposed that he used his mobile
no.9312109329 during his conversation with the accused persons. He
categorically deposed that A-1 had demanded money as illegal
gratification making him a permanent employee of the department
and posting pursuant thereto. He also deposed that A-2 was working
with A-1 in the same office, at that time. A-1 asked him to go out and
talk with A-2 in this regard.
11. PW4 – Ramesh Verma has deposed in his testimony that
in the year 2020, he was posted as an Addl. Commissioner in South
DMC. As per him, Ward bearing No.003S DEMS, SDMC, Delhi was
falling within his jurisdiction. He deposed that at that time, he was
competent to remove both accused persons. He identified his
signature at point A in sanctioned orders Ex.PW4/1 (colly) and
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Ex.PW4/2 (colly) which he had passed under Section 19 of the PC
Act, thereby granting sanction for prosecution of accused persons.
12. PW5 – Shiriniwas Vashisth deposed in his testimony
that on 12.10.2020, he was working as Sanitary Superintendent in the
Department of DEMS in West Zone (SDMC), Delhi. He retired from
the said service on 31.07.2018. Thereafter he continued to work as
Consultant in the same department on contractual basis. Besides that
PW5 deposed following facts.
12.1 That he was acquainted with both accused persons along
with Rameshwar and Rajendar Sharma, as they were his employees
and used to work under his supervision. He categorically deposed
about the official ranks of those persons including accused persons.
He identified accused persons in Court.
12.2 That during investigation, he was called by CBI at its
office, where he was asked to identify the voice of the persons, who
were found in conversation, in the said audio recordings. He
identified voices of accused persons, Rameshwar and Rajendar
Sharma after listening said audio recordings. Some documents were
prepared by CBI officials.
12.3 That in the presence of PW5, MHC(M) produced four
separate sealed envelopes which were already exhibited as
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Ex.PW3/5(colly) and Ex.PW3/12. From said envelopes, SD cards
were taken out. In those SD cards, prosecution found certain relevant
audio files viz., 200124_1530, 200125_1358, 200125_1417 and
200125_1528. Those cards were played and after hearing those audio
files, PW5 identified voices of accused persons, complainant and ASI
Rameshwar. Those audio files were compared with their transcripts,
which were part of Ex.PW5/1 (colly) and were found to be in
conformity.
13. PW6 – Ranjan Kumar has deposed in his testimony that
on 10.08.2020 he was posted as Junior Assistant in his office of
Registrar of Cooperative Societies, Parliament Street, New Delhi. On
the said date, the CBI Officials had called him to their office through
notice which was requisitioned in Registrar Office. Thereafter his
name was put up by Assistant Registrar and he was asked to report to
CBI office. Thereafter, he went to CBI Office on 10.08.2020 and met
with CBI official Sumit Kumar. He was informed that a voice
recording of about four persons recorded and he had to be a witness
of the same. He was also informed that he will have to speak first and
last sentences and in between voice sample of other four persons shall
be recorded. Thereafter, voice sample of both accused persons,
Rameshwar and another person whose name, he could not recall, were
recorded in the new DVR and micro SD card, each, separately. (They
were four in number). The DVR and SD Card were in sealed
condition and were opened in his presence by Sumit Kumar. The
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DVR and SD cards were played in his presence, prior to recording of
voice samples and they were all blank at that time. A sample voice
recording memo was prepared at that time and he had signed on the
said memo.
13.1 PW6 identified the sample voice recording memos
bearing his signature at point A as Ex.PW6/1 to Ex.PW6/4. He
deposed that a seal was also affixed on each of the said memos at
point B and that seal was handed over to him by Sumit Kumar. He
produced the said brass seal and same was marked as Ex.PW6/5. As
per him, all 4 persons viz., accused persons, complainant and
Rameshwar had given their voice samples voluntarily without any
pressure.
13.2 PW6 further deposed that in his presence, MHC(M)
produced four yellowish envelopes which were sealed with the seal of
SSO-II (PHY) CFSL CBI New Delhi. Those envelopes were opened
and one brown envelope in unsealed condition was found in each of
said envelopes, which was opened. Separate SD cards were taken out
from said brown envelopes and they were played in the open Court
through write blocker in a laptop.
13.3 PW6 identified his signature at point A on the above
mentioned brown envelopes. He identified the signature of accused
persons at point B on said envelopes. Those yellowish envelopes,
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brown envelopes along with SD card and company packaging were
marked as Ex.PW6/6 (colly) to Ex.PW6/9 (colly).
13.4 PW6 identified his voice and that of A-1 in SD Card
which is part of Ex.PW6/6 (colly). PW6 identified his voice and that
of A-2 in SD Card which is part of Ex.PW6/7 (colly). PW6 identified
his voice and that of Rajendar Sharma in SD Card which is part of
Ex.PW6/8 (colly). PW6 identified his voice and that of Rameshwar in
SD Card which is part of Ex.PW6/9 (colly).
14. PW7 Rameshwar Dayal deposed in his testimony that
he had joined in Ward No.003, SDMC as Assistant Sanitary Inspector,
in February 2019 and was transferred from there to Ward No.25,
Mohan Garden, SDMC in August 2020. He explained that a Safai
Karamchari employee in his department, is under the supervision and
control of a Sanitary Inspector. He was acquainted with both accused
persons and identified them in the Court. He knew about the official
ranks of both accused persons which he deposed correctly in his
testimony. As per him, on 25.01.2020, when he had gone for marking
his attendance on the attendance register, he found both accused
persons and complainant. He heard A-1 asking for Rs.20,000/- from
complainant and saying ‘20,000 rupaye lagenge’ while the
complainant offering him a sum of Rs.15,000/-. He deposed that there
was some ‘len den’ between the said persons, which was for the
purpose of complainant joining his duty. He saw A-1 sending A-2
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along with complainant for settling the matter. He had advised them
to resolve the issue and not to linger on.
14.1 PW7 identified the voices of complainant and Rajendar
Sharma in audio file no. 200125_1358, which is part of yellowish
envelope Ex.PW3/12 (colly), which contained one micro SD card in
which abovementioned audio file was recorded, besides other files.
14.2 PW7 also identified the voices of A-1 and complainant in
audio file no. 200125_1417, which is part of yellowish envelope
Ex.PW3/11, which contained one micro SD card, in which
abovementioned audio file was recorded besides other audio files.
15. PW8 Nitin Kumar was an independent witness, who
had joined the investigation proceedings. In his testimony, he deposed
following facts :-
15.1 That in January 2020, he was posted as a Clerk in Bank
of India, CGO Complex, New Delhi. On 24.01.2020, as per the
instructions of AGM, he had appeared before CBI and had met Duty
Officer, who had directed him to report to SI Vikrant Tomar.
Accordingly, he met SI Vikrant Tomar. At that time, complainant and
friend of SI Vikrant Tomar, namely Virendar Singh, were also present
with SI Vikrant Tomar. SI Vikrant Tomar told him about the complaint
of complainant which was addressed to CBI. That complaint was read
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over to him and verification proceedings were conducted. He
recorded his introductory voice in new DVR containing new SD card,
arranged by CBI officials. That SD card was blank. Thereafter, they
went to SDMC Office, Raja Garden, where DVR was put with
complainant on switch-on mode for recording the conversations. He
was asked to remain close to complainant and to try to overhear their
conversation if possible. Thereafter, they went to the office of MCD,
in Room No.14 where after leaving him outside, complainant went
inside. Complainant, at that time, was carrying DVR in ‘Switch-On’
mode, in his pocket. After 10-15 minutes, complainant came outside
and thereafter, both of them came back to TLO/Verification Officer.
The DVR was then switched off. On inquiry by SI Vikrant Tomar,
complainant told him about what had happened inside the room.
Complainant told that he had spoken to A-1, who in turn had spoken
to SI Rajendar Sharma on phone. A-1 told complainant that SI
Rajendar Sharma was not in the office and A-1 asked complainant to
come on next day. A-1 told complainant after talking to SI Rajendar
Sharma on phone that SI Rajendar Sharma was asking Rs.20,000/-
only, which complainant had to arrange. A-1 told complainant that he
would try to convince SI Rajendar Sharma for a sum of Rs.15,000/-
and asked complainant to come on next day at 3.00 PM.
Consequently, PW8, complainant and SI Vikrant Tomar reached back
to CBI office where SD card was taken out from DVR and a copy of
the same was prepared, which was played in their presence. Original
SD card was covered and sealed in his presence. The sealed envelope
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was signed by him. In his presence, in the Court one yellow colour
sealed envelope, with the seal of ‘AA’ was opened, on which he
identified his signature at point B. It contained SD card and same was
marked as Ex.PW3/5 (colly). The SD card containing file no.
200124_1437 in Ex.PW3/5 (colly) was played in the Court and it
contained introductory voice of PW8, which he identified.
Subsequently, audio file bearing no. 200124_1530 was played in
which he identified the voice of complainant. The transcripts of the
said audio recordings viz., Ex.PW3/3 and Ex.PW3/4 were found to
be correct.
15.2 PW8 identified his signature as point B in verification
memo Ex.PW3/2. He identified the complaint of complainant, which
was shown to him in CBI Office as Ex.PW3/1. Besides that PW3
further deposed following facts.
15.3 That he reached the Office of CBI, again on 25.01.2020,
where he had met SI Vikrant Tomar, who told him that investigation
was assigned to Sh. Dharmendar Kumar Singh. Thereafter, he met Sh.
Dharmendar Kumar Singh, complainant, Virendar and other
independent witness Naveen Bhardwaj (Inspector, GST) alongwith
CBI Officials. Sh. Dharmendar Kumar Singh, briefed the said persons
including PW8 about the facts of the case. A new SD card was played
in a DVR, handed over by SI Vikrant Tomar to Sh. Dharmendar
Kumar Singh. It was found to be blank on checking. Introductory
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voice of PW8 was recorded in the said SD card. Thereafter, GC notes
in the sum of Rs.15,000/-, with denominations of Rs.2000X6 and
Rs.500X6 were taken from complainant from CBI Officials.
Subsequently, phenolphthalein powder was applied to the said
currency notes. It was informed that if said notes with
phenolphthalein powder were dipped in the solution of Sodium
Carbonate and water, the solution would turn pink. A demonstration
in this regard was given by CBI Officials, during which GC notes
were touched with phenolphthalein powder, by other independent
witness Naveen Bhardwaj. That witness washed his hand in Sodium
Carbonate solution, which turned pink. That pink solution was then
thrown away.
15.4 That complainant was given instructions to give a signal
by rubbing his face with his hands when bribe money was handed
over to accused. Complainant was instructed to hand over the bribe
money, only when it was demanded by the accused. After applying
the powder, that bribe money was put in the pocket of complainant by
him. Thereafter, he washed his hands and took personal search of
complainant. He only found mobile phone and the trap money with
complainant. A memo of the proceedings was prepared and all the
team members, present there, including this witness, signed it. He
identified his signature at point D in the handing over memo
Ex.PW3/6.
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15.5 That entire trap team left CBI Office for SDMC Office,
Raja Garden, in the official vehicles, arranged by CBI. After reaching
there, he was again briefed, to remain close to complainant in order to
overhear the conversations, between complainant and accused person.
The DVR was put on ‘Switch-On’ mode, which was with
complainant. Then, he alongwith complainant went to SDMC Office,
in Room No.14, but he remained outside the said room and
complainant went inside. A-1 used to sit in the said room but he was
not present, at the time, when complainant had gone inside and
therefore, complainant came back. Then he alongwith complainant
went to the first floor of residential complex, which was inside the
SDMC Office. Again complainant went inside the room in said
residential complex and he remained outside that room. Thereafter,
both of them came back to CBI Official Sh. Dharmendar Kumar
Singh, who was present near the vehicles. The DVR was then
switched off by Sh. Dharmendar Kumar Singh. On inquiry,
complainant told about the facts regarding him going to the office and
residential complex, SDMC, as mentioned above, but could not meet
A-1. Complainant told that he was informed by SI Rajendar Sharma
whom he had met, that SI Rajendar Sharma was not having any post
and therefore, complainant was asked to meet A-1 regarding posting.
15.6 That complainant was asked to make a call to A-1 and
DVR was again put in ‘Switch-On’ mode. Complainant made call to
A-1 while putting his phone on speaker mode. As a result of that,
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PW8 was able to hear the conversations between complainant and
A-1. He heard, during said call that A-1 had told complainant that
complainant should reach there in 10-15 minutes and to wait in his
office. The DVR was then switched off. Subsequently, they waited
near the vehicles and thereafter, on the instructions of CBI Officials
went to the office of A-1. Before going there, DVR was put on
‘Switch-On’ mode.
15.7 That after reaching the office of A-1, complainant went
inside the room and came back after sometime alongwith one person.
PW8 went near them. Subsequently, they came back near vehicles
where Sh. Dharmendar Kumar Singh was present, who switched off
the DVR being carried by complainant and inquired from
complainant as to what had happened. In response to the same,
complainant told that A-1 was angry for the reason that complainant
had gone to SI Rajendar Sharma. Complainant told that he was
accompanied with A-2, when he came out of the office of A-1. It was
A-2 who discussed the matter with complainant and who had called
A-1 on phone, outside the office of A-1. It was A-2 who had told
complainant that he was not agreeing to any amount, less than Rs.
20,000/-.
15.8 That he alongwith complainant were instructed by CBI
Officials to go and meet A-1 in his office. DVR with ‘Switch-On’
mode was again kept with complainant, who went inside the office/
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Room No.14 of A-1 whereas PW8 remained outside. Subsequently,
complainant came out of the office of A-1 and both of them went near
the vehicles where they met CBI Officials. The DVR was switched
off and complainant was asked by CBI Officials. Complainant told
them that A-1 was angry as he questioned complainant as to why
complainant had gone to SI Rajendar Sharma. The trap team came
back to CBI Office where DVR was taken from complainant and its
copy was prepared and was played in the presence of PW8.
15.9 That SD card was sealed in a plastic cover, signed by him
and other witnesses and memo was prepared with regard to the
proceedings which had taken place, noting down the signature of the
witnesses.
15.10 That in his presence one yellow colour envelope with the
seal of ‘AA’ Ex.PW3/12 (colly) was opened, which contained SD
card having audio files viz., 200125_1226, 200125_1230,
200125_1358, 200125_1416, 200125_1417 and 200125_1528. He
identified his voice in audio file-200125_1226, when it was played in
the Court. He identified the voice of independent witness Naveen
Bhardwaj in audio file-200124_1530, when it was played in the
Court. He identified the voice of independent complainant in audio
file-200125_1358, when it was played in the Court. He identified the
voice of independent complainant and accused in audio
file-200125_1417, when it was played in the Court. He identified the
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voice of complainant and accused in audio file 200125_1528, when it
was played in the Court. Transcripts of the said audio files viz.,
Ex.PW3/8 to Ex.PW3/13 respectively, were found to be in tune with
the contents of audio files.
15.11 PW8 identified his signature in Memorandum of
Proceedings dated 25.01.2020 Ex.PW3/14 at point B.
15.12 That he was again called at CBI Office on 28.01.2020
where he had met TLO Sh. Dharmendar Kumar Singh alongwith his
friend Virendar Singh, independent witness Aditya Kumar and some
officials of CBI. Complainant had told that he had received a call on
27.01.2020 from A-2 who had asked complainant to come to his
office at Raja Garden. Accordingly, fresh DVR alongwith new SD
card was arranged by CBI Officials. It was played and was found to
be blank. Introductory voice of PW8 and Aditya Kumar were
recorded in SD card. Complainant informed that A-2 was not agreeing
with Rs.15,000/- rather was demanding Rs.20,000/- only.
Consequently, complainant produced currency notes of Rs.20,000/-
which were in the denomination of Rs.2000X6 and Rs.500X16. Again
demonstration of applying phenolphthalein powder and its effect, just
like it was done on earlier occasion i.e. on 25.01.2020, was carried
out by CBI Officials. Some documents were prepared by CBI
Officials and signature of the witnesses were taken. He signed pre
trap memo dated 28.01.2020 at point B, Ex.PW3/15 (colly).
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15.13 That the trap team as constituted above went to the office
of accused at Raja Garden, where complainant was instructed by CBI
Officials to hand over bribe money when demanded by accused. The
independent witnesses were asked to remain close to complainant and
see the transactions between them. The witnesses were given
instructions to give a signal by rubbing their faces as soon as
bribe/trap money is handed over to accused persons. The DVR was
put in ‘Switch-On’ mode with complainant in his pocket and he went
inside the office of A-1. PW8 remained outside the said office. After
sometime, complainant came out of the office alongwith another
person. PW8 followed them to a tea stall in front of SDMC Office,
Raja Garden, where there was a Sulabh Shauchalaya of SDMC. A-1
was also present there and all three of them were having some
conversation. After 5-10 minutes A-1 left from there. Thereafter,
complainant came to TLO and narrated the whole conversation.
Before that, DVR was switched off.
15.14 That after waiting for sometime, complainant was again
asked to go to the room of A-1, by carrying DVR in ‘Switch-On’
mode. A-1 was not found there and thereafter complainant came back
to TLO and DVR was switched off. Complainant was asked to call
A-1 but mobile phone of A-1 was found unreachable, despite 2-3
efforts made by complainant. Subsequently, A-1 was called by the
complainant on different number, which was found busy and on one
occasion A-1 did not pick the call. Thereafter, TLO called one of his
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seniors and informed him about the proceedings. Thereafter, all of
them went to CBI Office where SD card was taken out from DVR and
sealed by CBI Officials.
15.15 PW8 identified his signature in the memo of proceedings
dated 28.01.2020 Ex.PW3/28 (colly) bearing his signature at point A.
15.16 That an SD card was taken out from a packet Q-3 which
was packed in yellowish colour envelope, in the Court, in his
presence which he identified by way of his signature at point B. The
yellowish colour envelope, brown colour envelope, paper packet,
plastic cover and SD Card already Ex.PW3/16 (colly) were taken up.
The SD card was played in the Court and it contained 11 audio files.
He was able to identify voices of Nitin Kumar, Aditya Kumar Singh
in file no. 200128_1150 and 200128_1152 whose transcripts are
Ex.PW3/17 and Ex.PW3/18 respectively. He identified voices of
complainant and A-2 in audio file no 200128_1156 whose transcript
is Ex.PW3/19. He identified voice of A-1 and complainant in audio
file no. 200128_1340 whose transcript is Ex.PW3/20. Rest of the
audio files viz. 200128_1359, 200128_1529, 200128_1536,
200128_1537, 200128_1645, 200128_1646, 200128_1701- whose
transcripts are Ex.PW3/21 to Ex.PW3/27 respectively contained no
audio recordings.
CBI Case No.43/2020 Page 31 of 187
15.17 PW8 identified his signature in memos dated 17.08.2020
and 19.08.2020 at point B which are Ex.PW3/29 (colly).
15.18 PW8 was able to identify both the accused persons in the
Court, correctly.
16. PW9 Sh. Naveen Bhardwaj deposed in his testimony
that in January, 2020 he was posted as Inspector, GST, Delhi South at
Bhikaji Cama Place, New Delhi. On 25.01.2020, he had joined the
proceedings in the present case and had appeared before CBI officials
where he had met Sh. Dharmender Singh, Inspector CBI who was the
TLO of the case. The said officer of CBI briefed him about the
complaint of complainant in the presence of complainant and other
independent witness namely Sh. Nitin. He deposed the facts regarding
demonstration of use of phenolphthalein powder on cash amount of
Rs.15,000/-, the fact that he had touched powder stained notes in
Sodium Carbonate and water solution turning that solution into pink
colour, necessary instructions given by CBI officials with regard to
the use of said GC notes, arrangement of fresh SD card, recording of
his introductory voice and his signature on the documents prepared by
the CBI, in the same manner as deposed by PW8 Mr. Nitin Kumar in
his testimony. Same are not repeated here for the sake of brevity.
16.1 PW8 identified his signature at point C on the handing
over memo dated 25.01.2020 which is Ex.PW3/6. He deposed about
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the facts regarding trap team visiting the office of A-1 and
complainant going to the office of A-1 with DVR in Switched On
Mode as deposed by PW8 Sh. Nitin Kumar in his testimony. Same is
not repeated here for the sake of brevity. Besides that PW9 further
deposed following facts.
16.2 That initially the complainant and PW Sh. Nitin Kumar
went inside SDMC Building. After sometime, complainant and PW
Sh. Nitin Kumar came out of the building and thereafter the DVR
with the complainant switched off. Complainant informed that he
could not meet A-1 as said accused was not present in his office,
rather had gone to office of SI Rajender. Besides that PW9 further
deposed following facts.
16.3 That complainant asked SI Rajender about his posting,
complainant was told by SI Rajender to speak to A-1.
16.4 That thereafter on the instruction of the TLO,
complainant made a call to A-1 and A-1 told the complainant to meet
him in his office after some time.
16.5 That thereafter the trap team was again positioned and
complainant went to the office of A-1 with PW Sh. Nitin Kumar and
proceedings, as deposed by PW Sh. Nitin Kumar in his testimony,
were carried out. Same are not repeated here for the sake of brevity.
CBI Case No.43/2020 Page 33 of 187
16.6 That complainant had informed that another person who
was present in the office of A-1 had told him that work would be done
for Rs.20,000/- and not Rs.15,000/-. TLO then instructed the
complainant to again meet A-1 after lunch. Thereafter, complainant
went to the office of A-1 with DVR in ‘Switch-On’ mode and
returned back. Subsequently, the DVR was switched off and copy of
recordings of SD card was prepared. DVR was seized and sealed.
Memorandum of proceedings were prepared which was signed by
him.
16.7 That he identified his signature on the punchnama dated
25.01.2020 at point C which is Ex.PW-3/14. He identified his
signature at point C on yellow colour envelope which is sealed with
the seal of “AA”.
16.8 That envelope contained a brown colour envelope having
Micro SD Card. Same was taken out and said envelope was marked
as Ex.PW3/12 (colly). The SD card was played in the Court. It
contained the following audio files :-
(i) File No. 200125_1226 – PW9 identified the voice of the
independent witness Sh. Nitin in the said audio file. Its
transcript is Ex.PW3/8.
(ii) File No. 200125_1230 – PW9 identified his own voice
in the said audio clip and its transcript is Ex.PW3/9.
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(iii) File No. 200125_1358 – PW9 identified the voice of
complainant in the said file, who was speaking the words ”
Woh Toh Aap Hi Kaa Naam Le Rahe The” , and its transcript
is Ex.PW3/10.
(iv) File No. 200125_1417 – PW9 identified the voice of the
complainant who was speaking the words “Bauji Se Post Hi
Toh Maang Raha Hoon” in the said audio file and its
transcript is Ex.PW3/11.
(v) File No. 200125_1528 – PW9 identified the voice of
complainant in the said audio file and its transcript is
Ex.PW3/13.
16.9 After preparation of Memorandum of Proceedings and
signing it he left the CBI office in the evening. Later on, Inspector
Sumit from CBI had asked him to join the investigation for
identifying the voice of the persons.
16.10 PW9 identified his signature at point C on the Voice
Identification Memo dated 17.08.2020 forming part of Ex.PW3/29
(colly).
16.11 That he was not sure about the person who was with the
A-1 in his room. He could not identify the accused persons in the
Court.
17. PW10 Pradeep Kumar deposed his testimony that in the
month of January 2020, he was posted as an Administrative Officer in
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Department of DEMS, SDMC. He knew Sanitary Inspector Rajendar
Sharma as SI Rajendar Sharma was in his Department. He also
deposed that he was acquainted with A-1 who was working as
Assistant Sanitary Inspector in his Department at the said relevant
time. He was also acquainted with Rameshwar Dayal, Assistant
Sanitary Inspector who was posted at Raja Garden at the said time
filed in Ward No. 3S, SDMC. He was also acquainted with
complainant as complainant was posted as Safai Karamchari in the
said Ward.
17.1 As per PW10, temporary ad-hoc officials of SDMC were
regularized by DEMS Headquarters and those officials were then sent
to concerned zones. In this case, it was West Zone. Officials were
then posted in wards within zone as per the vacancies which existed.
17.2 PW10 further deposed that order for joining of
complainant in Ward No. 3S was issued by his office under his
signature. He had submitted various official documents pertaining to
posting/joining and other orders to Investigating Officer in this case
through letters dated 06.08.2020 and 07.08.2020. He identified those
letters as Ex.PW10/1 (colly), PW10/2 and PW10/3.
17.3 PW10 also identified order dated 27.12.2019 vide which
complainant was allowed to join in Ward No.3S against vacant post as
Ex.PW3/DX2. He identified A-1 in the Court.
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18. PW11 Aditya Kumar Singh deposed in his testimony
that in January 2020, he was posted as a Manager Scale-II in
Syndicate Bank, (now Canara Bank) R.K. Puram, Delhi. Pursuant to
the direction issued by his office on 28th January, 2020, he went to
CBI office, ACB Branch and met one CBI official namely;
Dharmendar Singh. That official told him about the complaint of
complainant and introduced him with complainant and other
witnesses/officials present in the office. Thereafter, demonstration
proceedings with regard to use of DVR and SD Card, GC notes
colored with chemical and fixing with DVR carrying SD Card, in
terms of prosecution version were completed. Details of the same are
not mentioned here for the sake of brevity.
18.1 PW11 further deposed about the visit of trap team to
SDMC office, Raja Garden and proceedings which took place at the
said office in terms of prosecution version. Same are not repeated
here for the sake of brevity.
18.2 He identified his signature in pre-trap memo Ex.PW3/15
at point C, yellowish color envelope/brown color envelope etc.
collectively referred as Ex.PW3/16 (colly) at point C.
18.3 He also identified the voice of independent witness Nitin
Kumar in audio file No. 200128_1150, his own voice in audio file No.
200128_1152, voice of A-2 and complainant in audio file No.
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200128_1156 and voice of complainant in audio no. 200128_1340.
The audio records were compared with the transcripts which were
Ex.PW3/17 to Ex.PW3/20 respectively. He also identified his
signature at Point-C on panchnama proceedings, Ex.PW3/28.
19. PW12 Inspector Sumit Kumar deposed in his
testimony that he was assigned present case for investigation in the
year 2020 by SP Sh. Abhishek Dular. Prior to him, investigation was
being carried out by Inspector Dharmender Kumar. During his tenure
as IO, he collected documents from Inspector Dharmender Kumar vis
Verification Memo, Pre-Trap Proceedings Memo, Voice Exhibits of
accused persons and others alongwith FIR. He identified those
documents which were on record and which were already exhibited as
Ex.PW3/2, Ex.PW3/6, Ex.PW3/14, Ex.PW3/15 and Ex.PW3/28.
19.1 In his testimony PW12 has deposed that he had collected
documents in the form of CAF, CDRs etc from the concerned Nodal
Officers. He also had collected service records of accused persons and
other persons and other relevant documents from MCD Office. He
had also prepared transcripts of the records which he had collected
during investigation. After collecting audio recordings he had sealed
the same and had sent them for examination in CFSL. Thereafter, he
received CFSL Report, which was positive.
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19.2 PW12 identified his signature at point C on voice sample
memos which were already exhibited in the testimony of PW6 viz.,
Ex.PW6/1, Ex.PW6/2, Ex.PW6/3 & Ex.PW6/4. He identified his
signature at point C, point X and point Y on the Voice Identification-
cum-Transcript Memo, already exhibited in the testimony of PW3 &
PW5 viz., Ex.PW3/29 and Ex.PW5/1.
19.3 PW12 also identified his signature at point A in Voice
Identification-cum-Transcript Memo Ex.PW12/2(Colly.). He
identified signature of Sh. Abhishek Dular at Point A in FIR
Ex.PW12/1(colly) on Page No. 14 & 15.
19.4 PW12 also identified documents viz., letter dated
06.08.2020 (D-17) already exhibited as Ex.PW10/1 (colly), letter
dated 06.08.2020 (D-18) already exhibited as Ex.PW10/12 (colly),
Handing Taking Over Memo dated 05.08.2020 already Ex.PW2/1,
documents Ex.PW2/2 to Ex.PW2/11, documents Ex.PW1/2 to
Ex.PW1/9. He also identified letter dated 06.10.2020 Ex.PW12/3
(colly). He identified envelopes alongwith DVR collected during
investigation, bearing his signature at point B as Ex.PW12/4 (colly).
He identified envelope, containing SD Card which had specimen
voice of ASI Rameshwar Dayal and independent witness Rajan
Kumar, already exhibited as Ex.PW6/9 (colly).
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19.5 PW12 identified documents which were exhibited in the
testimonies of PW1, PW2 and PW6. Same are not repeated here for
the sake of brevity.
19.6 PW12 further deposed in his testimony that he had
obtained sanction for prosecution of accused persons from competent
authority.
20. PW13 – Amitosh Kumar was the Senior Scientific
Officer, CFSL, who disclosed his educational qualifications in his
testimony. He deposed that he had more than 25 years of regular
service and had given opinion in about 900 cases, which included
voice identification cases. He had also given assistance in
examination of 700 cases consisting of 600 cases relating to voice
identification.
20.1 PW13 further deposed that in this case, his office had
received letter dated 06.10.2020, Ex.PW12/3 (colly) from CBI along
with 09 sealed parcels, specimen seal impression and copy of
transcription, on 09.10.2020. Subsequently, case was given to him for
examination.
20.2 PW13 identified the sealed parcels, in the Court. He
identified his Report as Ex.PW13/1 (colly), which he had prepared
after examining said sealed parcels, which contained SD Cards and
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DVRs. He identified the said envelopes containing SD Cards and
DVRs which were already exhibited in the testimonies of PW3, PW6
& PW12, after identifying his signature at point Y. Details of the same
are not repeated here, as it would be mere repetition.
21. PW14 – Vikrant Tomar, Sub-Inspector, ACB, CBI,
deposed in his testimony that he was assigned the task to verify the
complaint of complainant by SP Abhishek Dular on 24.01.2020. He
deposed about the verification proceedings, in terms of prosecution
case, which are not repeated here for the sake of brevity. He identified
Verification Memo dated 24.01.2020 Ex.PW3/2, bearing his signature
at point C. He identified the envelopes containing SD Card already
exhibited as Ex.PW3/5 (colly).
21.1 PW14 further deposed that after verification proceedings,
FIR in question was registered and trap planning for 25.01.2020 was
done in the office of CBI. Thereafter, he deposed about the trap
proceedings which took place on 25.01.2020, in sync with
prosecution version, which needs no repetition. He identified his
signature at point D in handing over memo dated 25.01.2020, already
exhibited as Ex.PW3/6. He identified his signature at point D on each
page Punchnama-cum-Proceedings dated 25.01.2020 (already
exhibited as Ex.PW3/14).
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21.2 PW14, thereafter, deposed facts regarding trap
proceedings which took place on 28.01.2020, in sync with
prosecution version. Same needs no repetition. He identified pre-trap
memos dated 28.01.2020, bearing his signature at point D. Same were
already exhibited as Ex.PW3/15 (colly) and Ex.PW3/28 (colly).
21.3 PW14, in his testimony, identified the verification
proceedings (already exhibited as Ex.PW3/3), envelopes along with
SD card (already exhibited as Ex.PW3/5 & Ex.PW3/12).
22. PW15 – Inspector Dharmender Kumar was another IO
in this case, who deposed about the proceedings which had taken
place on 25.01.2020, when case was marked to him for investigation
by concerned SP, CBI. Details of said proceedings are not repeated
here for the sake of brevity. Suffice it is, to mention here that he
supported prosecution version, in his deposition regarding the manner
in which proceedings had taken place on 25.01.2020. He identified
documents viz., Ex.PW3/6 (colly) and Ex.PW3/14 (colly). He also
disclosed about the chain of events which had taken place on
27.01.2020 and 28.01.2020, in sync with prosecution version, already
mentioned above in testimonies of previous witnesses. Same needs no
repetition. He identified memos dated 28.01.2020, bearing his
signature at point F [already exhibited as Ex.PW3/15 and
Ex.PW3/28). He identified envelopes containing brown envelope and
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CBI vs. Kapil & Anr.
DVR (already exhibited as Ex.PW3/30 (colly), Ex.PW3/16 (colly)
and Ex.PW1/12 (colly)].
23. After examining said witnesses, prosecution closed its
evidence and matter was fixed for recording of Statement of Accused
Persons.
STATEMENT OF ACCUSED PERSONS UNDER SECTION 313
CRPC
24. In his Statement under Section 313 Code of Criminal
Procedure (in short ‘CrPC‘), A-1 denied the incriminating evidence,
put to him. He admitted that he and Ranbir Singh were working in
same MCD Ward and had communicated for official purposes. He
was not clear about the correctness of CDR, placed on file by CBI,
pertaining to his mobile number. He also claimed about his lack of
knowledge with regard to some incriminating evidence, put to him.
He claimed that there were financial transactions between SI Rajender
Sharma and complainant. He claimed that his conversation with
complainant were misinterpreted and original complaint of
complainant was destroyed. As per him, he tried to mediate the
dispute between complainant and SI Rajender Sharma. He claimed
that recordings were edited and misinterpreted. He claimed that
witnesses of prosecution had deposed falsely and important
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CBI vs. Kapil & Anr.
documents were destroyed/ removed from the case file. As per him,
case of prosecution was false.
25. In his Statement under Section 313 CrPC, A-2 denied the
prosecution version. He also told about his lack of knowledge with
regard to certain incriminating evidence, put to him. He claimed that
he was innocent and that he was falsely implicated in this case.
26. After recording of Statements of Accused persons, matter
was fixed for defence evidence as accused persons wanted to lead
defence evidence.
DEFENCE EVIDENCE
27. In their defence, accused persons examined two
witnesses viz., DW1 – Pooran Singh and DW2 – Virender Singh.
28. DW1 – Pooran Singh, in his testimony, produced
summoned record viz., attendance register of SDMC from 16.10.2019
till 16.01.2020. The relevant copy of pages, showing attendance of
complainant, were exhibited as Ex.DW1/1 (colly) and Ex.DW1/2
(colly).
29. DW2 – Virender Singh was an ASO, DEMS, West
Zone, MCD, who had produced summoned record, which was
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CBI vs. Kapil & Anr.
attendance register of Rameshwar Dayal for the period 07.10.2020 to
10.10.2020. The said record was exhibited as Ex.DW2/1.
30. After examining said witnesses, accused persons closed
their evidence and matter was fixed for final arguments.
31. After hearing final arguments, matter was fixed for
judgment.
LAW RELATING TO APPRECIATION OF ORAL EVIDENCE
32. Now, the question which needs adjudication, is whether
prosecution was able to prove the charges against accused persons or
not?
33. For answering above mentioned question, I have to
appreciate evidence brought on record by prosecution.
34. Before appreciating the evidence, brought on record by
the prosecution, I must mention here the law of appreciating evidence
of the witnesses. Hon’ble Delhi High Court in case titled as Satish
Bombaiya Vs. State, 1991 JCC 6147, had observed:
“While appreciating the evidence of a witness, approach
must be whether the evidence of the witness read as a
whole appears to have a ring of truth. Once that
impression is formed then undoubtedly it is necessary for
the court to scrutinize the evidence more particularlyCBI Case No.43/2020 Page 45 of 187
CBI vs. Kapil & Anr.
keeping in view the deficiencies, drawbacks and
infirmities pointed out in the evidence as a whole and
evaluate them to find out whether it is against the
general tenor of the evidence given by the witness and
whether earlier evaluation of evidence is shaken as to
render it unworthy of behalf. Minor discrepancies on
trivial matters not touching the core of the case, hyper
technical approach by taking sentences torn out of
context here and there from the evidence, attaching
importance to some technical error committed by the
investigating officer not going to the root of the matter,
would not ordinarily permit rejection of the evidence as a
whole. The main thing to be seen is, whether those
inconsistencies go to the root of the matter or pertained
to the insignificant aspects thereof. In the former case,
the defence may be justified in seeking advantage of the
inconsistencies in the evidence. In the latter, however no
such benefit may be available to it. That is a salutary
method of appreciation of evidence in criminal cases.”
35. So, in the wake of above mentioned law, evidence
brought on record, has to be read as a whole and has to be appreciated
as a whole. Minor discrepancies over trivial matters and hyper
technical approach while appreciating evidence, has to be avoided. It
has to be seen whether shortcomings highlighted by accused, go to the
root of the matter and if it so goes, then in that eventuality only
evidence has to be discarded.
36. Further, present case involves the issue of corrupt
practices allegedly done by accused persons. Now, how evidence in
such like matters, has to be appreciated, is a relevant consideration.
CBI Case No.43/2020 Page 46 of 187
Law pertaining to appreciation of evidence in cases, involving corrupt
practices.
(i). In the case of Sultan Salahuddin Owasi vs. Mohd.
Osman Shaheed & Ors. (1980) 3 SCC 281, the Apex Court
observed as under:-
It is now well settled by a large catena of the authorities
of this Court that a charge of corrupt practice must be
proved to the hilt, the standard of proof of such
allegation is the same as a charge of fraud in a criminal
case.
(ii). In the case of Ram Sharan Yadav vs. Thakur
Muneshwar Nath Singh & Ors. (1984) 4 SCC 649, the Hon’ble
Apex Court observed as under :-
The sum and substance of these decisions is that a
charge of corrupt practice has to be proved by
convincing evidence and not merely by preponderance
of probabilities. As the charge of a corrupt practice is
in the nature of criminal charge, it is for the party who
sets up the plea of ‘undue influence’ to prove it to the
hilt beyond reasonable doubt and the manner of proof
should be the same as for an offence in a criminal
case……… By and large, the Court in such cases
while appreciating or analysing the evidence must be
guided by the following considerations:
(1) the nature, character, respectability and credibility
of the evidence, (2) the surrounding circumstances and
the improbabilities appearing in the case, (3) the
slowness of the appellate court to disturb a finding of
fact arrived at by the trial court who had the initialCBI Case No.43/2020 Page 47 of 187
CBI vs. Kapil & Anr.
advantage of observing the behaviour, character and
demeanor of the witnesses appearing before it, and (4)
the totality of the effect of the entire evidence which
leaves a lasting impression regarding the corrupt
practices alleged.
This, therefore, conclude the question regarding the
standard of proof.
37. So, in the wake of above mentioned law, it is clear that I
have to appreciate the evidence, brought on record by the parties, in
detail, before concluding as to whether prosecution was able to prove
the charges, levelled against accused persons. The credibility of the
witnesses, the circumstances in which demand of bribe was raised by
accused persons, as was the prosecution story and the demeanor of the
witnesses, together with totality of impact of evidence, are
considerations, which I will be bearing in mind, while appreciating
evidence on record.
RECAPITULATION OF PROSECUTION CASE
38. As such, prosecution has brought on record evidence, in
the form of oral testimonies, audio recordings, CDR / CAF record and
CFSL Report. Each type of such evidence, will be appreciated by me,
separately, in subsequent paragraphs.
CBI Case No.43/2020 Page 48 of 187
39. At this stage, before delving into evidence, I must
recapitulate, prosecution version, in brief. It will assist the person
reading this judgment, in better understanding the case. For the sake
of convenience, I am referring the prosecution version, in tabular
form.
DATE CHAIN OF EVENTS
24.01.2020 Verification Proceedings – Complainant filed complaint
with CBI alleging that accused no.1 and Sanitary Inspector
Rajender Sharma were demanding bribe of Rs.20,000/- from
him, in lieu of giving him posting. Based on said complaint,
verification proceedings were conducted in which fresh
DVR along with SDHC Card was put with complainant by
CBI. Complainant along with his friend namely Virender
Singh, SI Vinod, SI Vikrant and independent witness Nitin
Kumar went to the office of accused no.1 where
conversation of complainant with accused no.1 was
recorded. Thereafter complainant along with other witnesses
returned back to CBI office, where DVR/ SDHC card were
sealed after listening the conversation. Based on said
conversation, FIR in question was registered. Verification
memo was prepared which was signed by all the above
mentioned witnesses.
CBI Case No.43/2020 Page 49 of 187
25.01.2020 Investigation after registration of FIR – After registration
of FIR, case was marked to Inspector Dharmender Kumar
Singh, who prepared Trap Team, comprising of complainant,
independent witnesses namely Nitin Kumar and Naveen
Bhardwaj along with CBI officials. Pre-trap proceedings
were conducted on 25.01.2020 in which complainant, who
had brought Rs.15,000/- GC Notes, was given demonstration
of those notes stained with phenolphthalein powder and
subsequently, being treated with sodium carbonate solution,
indicating colourless liquid turning into pink colour. The
tainted bribe amount was then put in the pant pocket of
complainant after removing all belongings of complainant.
Necessary directions were given to complainant, to handover
the said tainted money, when demanded by accused persons.
Fresh DVR containing SD card was put with complainant, in
‘switch on’ mode and he was asked to meet accused persons
at the concerned office. Independent witnesses were asked to
remain in close proximity to complainant. CBI officers
remained present at close distance to the office of accused
persons. Proceedings were recorded in the SD card of DVR,
which was sealed by CBI officers, after complainant
returned back to them. Necessary paper work/documentation
/ preparation of memos, was carried out by CBI.
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27.01.2020 Complainant received a call from A-2, whereby he was
asked to meet A-1 on 28.01.2020. Further investigation was
given to SI Sumit Kumar
28.01.2020 Complainant brought GC Notes of Rs.20,000/-, on the
directions of CBI. Pre-trap proceedings were conducted in
the same manner as they were conducted on 25.01.2020, in
the presence of independent witnesses namely Nitin Kumar
and Aditya Kumar. The team again went to the office of
accused persons, where all the conversation of complainant
and accused persons were recorded. Proceedings were
recorded in the SD card of DVR, which was sealed by CBI
officers, after complainant returned back to them. Necessary
paper work / documentation / preparation of memos, was
carried out by CBI.
Other proceedings – Investigating Officer of CBI recorded
statements of witnesses, secured the seals, used during
investigation, sent the audio recordings to FSL, prepared
transcripts of audio recordings, obtained CFSL Report and
after completing investigation, charge-sheeted accused
persons.
CBI Case No.43/2020 Page 51 of 187
40. Keeping in mind, above mentioned broadly stated
proceedings and the details, mentioned in preceding paragraphs, I am
proceeding further and appreciating evidence brought on record by
prosecution.
APPRECIATION OF PROSECUTION EVIDENCE
ORAL TESTIMONIES OF WITNESSES
PW1
41. PW1 – Rajiv Vashisht was the Nodal Officer, from
Bharti Airtel Ltd., who testified in his testimony that his company had
received letter from CBI, thereby seeking CAF and CDR, with respect
to mobile numbers – 9312109329 & 9212604605, belonging to
complainant and A-1 respectively. He identified the letter, received by
his company from CBI in this regard as Ex.PW1/1. He identified the
CAF & CDR of above mentioned mobile numbers as Ex.PW1/2 to
Ex.PW1/5, bearing his signature and seal at point A & B respectively,
for the period from 22.01.2020 to 25.01.2020. He also identified
Certificate under Section 65-B IEA, bearing his signature and seal at
point A & B respectively, with respect to above mentioned CDR &
CAF. Similarly, he identified CDR & CAF record of above mentioned
mobile numbers for the period from 25.01.2020 to 03.02.2020 as
Ex.PW1/7 & Ex.PW1/8 bearing his signature and seal at point A & B
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CBI vs. Kapil & Anr.
respectively. He identified Certificate under Section 65-B IEA with
respect to said electronic documents as Ex.PW1/9 bearing his
signature & seal at point A & B respectively. He deposed that he had
furnished said record after being asked by CBI on 19.02.2020.
41.1 PW1, as such, was an employee of Bharti Airtel Ltd. He
had supplied above mentioned documents to CBI in ordinary course
of his official duties. He duly identified the documents, being signed
and sealed by him, which he supplied to CBI. In fact, he testified in
his cross-examination that he had taken 15 days time period for
arranging said documents. He refuted the suggestion of deposing
falsely. He did not remember the date when his statement was
recorded by CBI or whether he had taken any receiving from CBI
while handing over above mentioned documents or the number of
times, he had visited the office of CBI, in relation to this case. Want
of knowledge regarding said facts was not material and relevant, for
the purpose of discarding his testimony. The documents, he had
placed on record, were so placed by him, in ordinary course of his
official duties. There was nothing unreasonable about the manner in
which he had furnished documents, to CBI, during investigation, on
the asking of CBI.
41.2 No fact was culled out by accused persons by cross-
examining him, which could have remotely indicated that he was a
tutored witness or a witness with ulterior motive, who had deposed in
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CBI vs. Kapil & Anr.
favour of prosecution. He was an employee of Bharti Airtel Ltd. and
that fact was not denied by accused persons. His signatures on the
documents, he had furnished to CBI, were also not challenged by
accused persons. As such, there was nothing, based on which, veracity
of his testimony, could be doubted. Therefore, I believed his
testimony to be trustworthy.
PW2
42. PW2 – Saurabh Aggarwal, was Nodal Officer in
Vodafone Idea Ltd., who testified that he had supplied CAF & CDR
of mobile numbers – 8527598608 & 9654397973, belonging to Ms.
Sapna, wife of A-1 and Rajender Sharma, respectively. He identified
that record as Ex.PW2/2, Ex.PW2/3, Ex.PW2/5 & Ex.PW2/6. He
identified Certificate under Section 65-B with respect to said records,
as Ex.PW2/4 & Ex.PW2/7 respectively. Besides that he identified
CDR of mobile number – 8527598608 for the period from 25.01.2020
to 03.02.2020, as Ex.PW2/8, regarding which he had issued
Certificate under Section 65-B IEA, which he had identified as
Ex.PW2/9. Similarly, he identified CDR of mobile number –
9654397973 for the period from 25.01.2020 to 03.02.2020, as
Ex.PW2/11, regarding which he had issued Certificate under Section
65-B IEA, which he had identified as Ex.PW2/12. He identified his
signatures on the said documents at point A & seal at point B.
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42.1 PW2, just like PW1 was an employee of cellular
company. He had supplied above mentioned documents to CBI in
ordinary course of his official duties. He duly identified the
documents, being signed and sealed by him, which he supplied to
CBI. He refuted the suggestion of deposing falsely. The documents,
he had placed on record, were so placed by him, in ordinary course of
his official duties. There was nothing unreasonable about the manner
in which he had furnished documents, to CBI, during investigation,
on the asking of CBI.
42.2 No fact was culled out by accused persons by cross-
examining him, which could have remotely indicated that he was a
tutored witness or a witness with ulterior motive, who had deposed in
favour of prosecution. He was an employee of Vodafone Idea Ltd. and
that fact was not denied by accused persons. His signatures on the
documents, he had furnished to CBI, were also not challenged by
accused persons. As such, there was nothing, based on which, veracity
of his testimony, could be doubted. Therefore, I believed his
testimony to be trustworthy.
PW3
43. PW3 – Ranveer Singh was the complainant in this case.
His evidence needs to be appreciated, by keeping in mind various
aspects viz., whether he had false motive to implicate accused
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persons, what were his antecedents, whether he was a tutored witness
and whether he was under any influence to depose in favour of
prosecution. I have noted said aspects, keeping in mind the mandate
of law, laid down in judgments viz., Sat Paul vs. Delhi
Administration [AIR 1976 SC 294] and Ravindra Mahadeo
Kothamkar vs. The State of Maharashthra [908-Appeal-1152-2004-
J.doc dated 19.12.2015].
43.1 So, allegations of complainant, in the wake of above
mentioned case laws are not to be seen in isolation. Antecedents of
complainant and possibility of complainant having false motive to
implicate accused persons, are considerations, which are to be
appreciated also.
43.2 Keeping in mind above mentioned understanding of law,
pertaining to appreciation of evidence of complainant, in trap cases, I
am reverting back to the evidence of complainant, who was examined
as PW3, by prosecution.
43.3 PW3 categorically identified the complaint, he had made
to CBI as Ex.PW3/1, based on which verification proceedings were
carried out and later on, became the basis of registration of FIR in
question. He deposed that A-1 had demanded money as illegal
gratification in lieu of getting posting after he became permanent
employee in the department. He also deposed that A-2 had talked to
him at the instance of A-1.
CBI Case No.43/2020 Page 56 of 187
43.4 PW3, besides, levelling above mentioned allegations,
deposed facts regarding verification proceedings, pre-trap
proceedings, trap proceedings and post-trap proceedings, in sync with
prosecution version, which needs no repetition. He identified
documents which were prepared during investigation, in his presence,
viz., verification memo Ex.PW3/2, handing over memo Ex.PW3/6,
punchnama proceedings dated 25.01.2020 Ex.PW3/14, pre-trap memo
Ex.PW3/15, punchnama proceedings dated 28.01.2020 Ex.PW3/28
and voice identification – cum- transcription memos Ex.PW3/29, all
bearing his signature at point A.
43.5 Besides that, he identified the voices of witnesses,
recorded in SD card in DVRs, used during investigation. Those audio
files and their transcripts are appreciated by me, separately, in this
judgment, under the heading of “Evidence based on Audio
Recordings”. Therefore, they are not appreciated at this stage.
43.6 Further, from the testimony of PW3, I find that facts viz.,
he being a Safai Karamchari, who had studied upto 9 th class and the
fact that he was made permanent employee by the department after 22
years of service, were not disputed by accused persons. His
acquaintance with accused persons professionally, was also not
disputed by accused persons. Further, accused persons failed to cull
out any relevant fact, which could have indicated that he had deposed
against accused persons with false motive.
CBI Case No.43/2020 Page 57 of 187
43.7 PW3 was cross-examined separately by A-1 & A-2. I am
firstly appreciating the facts deposed by PW3, in response to his
cross-examination by A-1 in my subsequent paragraphs.
43.8 PW3 explained in his cross-examination, that after
getting permanent status for getting posting, in the same Ward, he had
met A-1 who told him that it would take Rs.20,000/- for meeting out
his request. Infact, he explained that A-1 had come to him and had
told him about the same by stating, “aapko post dene ke liye, 20000
rupay lagenge”. He also deposed that A-1 had also stated, “aapke
20000 rupay hi lagenge, Inspector sahab maan nahi rahe”. No
suggestion was given to the contrary by accused persons, disputing
the said facts. It did not help the cause of accused persons.
43.9 PW3 also deposed in his cross-examination that 3-4
employees were given postings in the same Ward, who had become
permanent employees. So, PW3 had reason to believe that he can also
get posting in the same Ward. That hope was basically exploited by
A-1, when A-1 demanded bribe of Rs.20,000/-, though alleging that it
was so demanded by Sanitary Inspector concerned. Fact of the matter
remains that PW3 stuck to his version regarding A-1 demanding bribe
of Rs.20,000/-.
43.10 PW3, in his testimony deposed facts regarding the
manner in which CBI had investigated this matter. Those facts are not
repeated here for the sake of brevity. Suffice it is, to mention that
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CBI vs. Kapil & Anr.
PW3 deposed facts regarding verification & trap proceedings, in sync
with the version of CBI, mentioned in the charge-sheet. He was able
to name independent witnesses who had accompanied him at the time
of trap proceedings. He was able to depose facts regarding
arrangement of cash amount, fixing of fresh DVR having SD card and
preparation of documents by CBI which supported prosecution
version.
43.11 PW3 categorically deposed that he had met A-1 for
meeting out his request of getting posting in the same Ward. He
deposed that he had gone to CBI office with his friend Virender Singh
after discussing the matter with Virender Singh. He admitted the
suggestion, given by A-1, to the effect that trap proceedings were
conducted against accused persons after he had lodged complaint with
CBI regarding demand of bribe money. All the said facts, supported
prosecution version.
43.12 PW3 was put certain suggestions, which he refuted.
Those suggestions, on one hand, indicated the defence of accused
persons and on the other hand, indicated that they were not acceptable
to PW3. A reference to those suggestions, would be relevant, at this
stage. I am mentioning those suggestions and the response of PW3, in
verbatim, along with its appreciation by me, in tabular form.
CBI Case No.43/2020 Page 59 of 187
Suggestions/ Response of PW3 Appreciation (a). It is incorrect that CBI While appreciating said suggestion,
had directed me not to use the one has to bear in mind the fact that
words, “rishwat” and “ghoose” PW3 has studied upto 9th class, as per
or any other word that referred his testimony. Further, one has to
to giving bribe, while the appreciate the fact that he had
recorder was on. association with A-1 for more than
two decades as they were both
working in the same Ward. So, non-
reference to the words, ‘rishwat’ /
‘ghoose’/ likewise, as such, did not
make the testimony of PW3 doubtful
as his educational background was
not such that he would have taken
adequate precaution by using said
words. Coupled with the same, even
if it is believed that he was casual in
his conversation, then also, his
acquaintance with A-1 for a long
period of time, justified said casual
approach. The said suggestion
indicated that A-1 expected that
expressions like ‘rishwat’ or ‘ghoose’
or likewise should have been used, in
the conversation by PW3. As such,
said expectation was a narrow way of
understanding the issue in hand. In
common parlance, people use such
words, which ordinarily imply bribe.
People, seldom use words like
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CBI vs. Kapil & Anr.
“rishwat” and “ghoose” during
communication with others. Use of
such direct expressions, often is not
done as any reasonable prudent
person, placed in the situation of
accused persons, would make efforts
to not get involved in cases of
corruption, by using such words,
pertaining to bribe, directly. Even
otherwise, PW3 refuted the said
suggestion which indicated that he
was not tutored by CBI. Lastly,
reference to Rs.15,000/- and
Rs.20,000/- in the conversation with
accused persons, alleged by
complainant in his testimony, only
indicated the possibility of said
amounts being bribe amount. There
is no other possible context in which
said amounts can be understood.
(b). It is wrong to suggest This suggestion indicated that A-1
that I went straightway to meet was claiming that he had not met
SI Rajender Sharma to provide PW3 for the purpose of providing
me posting after I got posting to PW3. The suggestion was
permanent and not to accused refuted by PW3 which means that
Kapil. PW3 did not accept the same. Even
otherwise, A-1 failed to explain as to
how and why he made conversation
with PW3, as recorded in SD cards,
if he was not in the picture
altogether.
CBI Case No.43/2020 Page 61 of 187
(c). It is incorrect to suggest These suggestions viz., (c), (d), (e),
that I had taken a loan from (f) & (g), indicated that A-1 wanted
Rajender Sharma and he to raise his probable defence, to the
demanded to pay back the loan effect that he had taken a loan from
before he signed my posting SI Rajender Sharma to the tune of
order. Rs.15,000/-, which he had to return
back along with interest amount of
(d). It is wrong to suggest that
Rs.5,000/-. It also indicated that A-1
I had taken a loan from
was claiming that PW3 had made
Rajender Sharma for an amount
various requests to SI Rajender
of Rs.15,000/- and since, I had
Sharma, for waiving off the interest
not repaid for a long time,
amount.
Rajender Sharma was asking for
an interest of Rs.5,000/- on the PW3 by refusing those suggestions,
said amount. as such, dismissed the said probable
defence of A-1. Apart from that, A-1,
(e). It is wrong to suggest that nowhere explained in his defence
I went to SI Rajender Sharma and/ or while cross-examining any of
repeatedly with a request to the prosecution witnesses, as to how
waive off the interest amount he came to know about the fact that
and take only the principal SI Rajender Sharma had granted loan
amount of Rs.15,000/-. amount of Rs.15,000/- to PW3.
(f). It is further wrong to Further, A-1 did not give details of
suggest that since Rajender date, time and place when said loan
Sharma did not agree to waive was allegedly given to PW3. The
off the interest amount, I necessary terms and conditions of
repeatedly went to Kapil to get said loan amount were also never
the interest amount waived off disclosed by A-1. Further, purpose
by speaking to Rajender for which PW3 had allegedly taken
Sharma. said loan, also never saw light of the
day, during whole trial. Lastly, I
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(g). It is wrong to suggest failed to understand as to why PW3
that Sh. Rajender Sharma issued would have approached A-1 for
the aforesaid order dated waiving off the interest amount as
04.02.2020 of my posting as I there is nothing on record, which
had repaid the loan amount to could have indicated that SI Rajender
him. Sharma would or could have acceded
to the request of A-1 at the instance
of PW3.
The net result is that whole theory of
advancement of loan by SI Rajender
Sharma to PW3 was not only refuted
by PW3, rather, it was vague in
nature.
(h). It is wrong to suggest These suggestions viz., (h), (i), (j) &
that my friend Virender Singh is (k) indicated that A-1 was claiming
a black mailer and an informer that friend of PW3 namely Virender
with CBI and has high Singh was a black mailer and an
connections in CBI. informer of CBI, having high
connections with CBI also. The
(i). It is wrong to suggest
suggestions also indicated that A-1
that Virender Singh gave you the
wanted to convey that conversation
idea to record the conversation
between complainant and A-1 were
with the accused persons about
misused as it was the idea of
the conversation pertaining to
Virender Singh. Further, A-1 wanted
the repayment of principal and
to indicate that Virender Singh had
waiver of interest amount, and
arranged and managed entire CBI
thereafter to mis-use the same
proceedings in this case. Lastly, it
by filing a false complaint
indicated that as per A-1, PW3 along
before the CBI officials.
with Virender Singh had conspired
together by misusing the
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(j). It is wrong to suggest conversations regarding repayment
that I did not got to CBI office of loan and waiver of interest
on 25.01.2020 & 28.01.2020 amount.
also, or that Sh. Virender Singh The said suggestions were refuted by
arranged and managed the PW3, which indicated that PW3 did
entire CBI proceedings near not accept the theory, floated by A-1.
MCD office at Rajouri Garden Coupled with the same, I find that
itself. A-1 failed to explain as to how, he
(k). It is wrong to suggest came to know about the influential
that I and Virender Singh had status of Virender Singh. A-1 failed
conspired to blackmail the to explain as to why CBI would have
accused persons and Sh. moulded itself, to such an extent, at
Rajender Sharma by mis-using the instance of Virender Singh that it
the conversations regarding the wasted its precious time in
repayment of loan and interest implicating accused persons in this
and falsely implicated them in case by forging the record. In other
the present case. words, I failed to understand as to
what Virender Singh or CBI, would
have gained, by implicating accused
persons in this case. Lastly, I failed to
understand as to how A-1 had come
to know about the said conspiracy
between Virender Singh and CBI.
Details of said conspiracy again were
never suggested by A-1.
Absence of answers to said relevant
and probable questions, made the
said suggestions vague and
improbable.
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(l). It is wrong to suggest The said suggestion indicated that
that CBI had deliberately A-1 wanted this Court to believe that
deleted some of the recorded CBI had intentionally deleted some
conversations in the present portions of recorded conversations,
case because the actual in present case for hiding actual
transaction pertaining to transaction based on principal loan
principal amount and interest amount and interest amount.
waiver were spoken by me in Refusal of said suggestion by PW3
those recordings. indicated that he did not buy said
story. Even otherwise, said
suggestion, lost its significance once
I have already concluded that theory
of advancement of loan to PW3 by SI
Rajender Sharma, was vague in
nature. Coupled with the same, A-1
failed to specify, as to which portions
were deliberately deleted in the
recorded conversations, which could
have given wings to his theory.
43.13 A reference to above mentioned suggestions and
conclusions drawn on the basis of appreciation of the same, therefore,
indicates that said probable defence of A-1 was not trustworthy and
reliable. Further, A-1 did not lead any defence evidence, in support of
said suggestions, which made those suggestions, merit less.
43.14 Testimony of PW3, further indicated that he deposed
facts regarding A-1 demanding bribe amount and A-2 asking him to
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pay the said amount, in the presence of ASI Rameshwar. Said
deposition was in sync with prosecution version. PW3 confirmed in
his deposition that he had received telephonic call from A-2 on
27.01.2020 for bringing Rs.20,000/- on the next day in the office. He
was able to disclose the fact that in all proceedings which CBI
conducted, in this case, independent witnesses were present. He
refuted the suggestion that he had not visited the room of A-1 or that
he had recorded conversation with A-1 from outside the room of A-1.
Surprisingly, he was questioned by A-1 in following manner :-
Q. Is it correct that you went to CBI with your
complaint because you felt extremely angry on the demand
of bribe even after rendering service in the department for
about 22 years?
43.15 Above question indicated that A-1 himself admitted the
fact that demand of bribe was made to PW3. This fact totally
demolished the version of A-1 regarding PW3 getting loan from SI
Rajender Sharma. Coupled with the same, I find that PW3. while
answering said question, stuck to his version, to the effect that he had
made request to A-1, twice or thrice for joining in permanent position
but A-1 continued to demand bribe from him. That deposition,
reinforced the version of PW3 which did not help the cause of A-1.
43.16 PW3 admitted the suggestion, in his testimony, that he
had asked A-1 to call Rajender Sharma, for discussion about his
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joining and other matters. He further deposed that he wanted A-1 to
speak to Rajender Sharma regarding bargaining the money from
Rs.20,000/- to Rs.15,000/- for his joining. He admitted the suggestion
that when he had uttered the words, “na kutch somvar ko de dunga”,
he was asking A-1 to take the money from his pocket at that time and
that he would pay the balance amount, demanded by SI Rajender
Sharma from him on Monday.
43.17 To make things worse, for himself, A-1 asked PW3
categorically while referring to his examination-in-chief recorded on
21.10.2022, that there was no reference to the word, “graft” in the
entire conversation which had taken place on 24.01.2020. PW3
explained in his answer that the import and purport of the said
conversation means the same. It indicated that PW3 understood that
bribe was demanded by A-1 on 24.01.2020. This conclusion did not
help the cause of A-1.
43.18 PW3 was put suggestion based on theory of him
receiving loan from SI Rajender Sharma. PW3 refuted the same.
Once, that was done, A-1 should have examined SI Rajender Sharma
in his defence, for probablising his defence. A-1 did not do so. In such
circumstances, non-examination of SI Rajender Sharma by A-1 did
not help his cause.
43.19 PW3 was given suggestion to the effect that his
permanent category posting order had to come from higher authority
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of MCD and Rajender Sharma or A-1 or A-2 could not have stopped
the implementation of that order. That fact was admitted by PW3.
Admission of said fact did not make the case of prosecution weak.
Reason being, that if that was the situation, then A-1 would have
known that he had no authority to give permanent category posting
order to PW3 and therefore, he should have kept himself at distance,
from PW3, whenever PW3 approached him for getting posting in the
said Ward. A-1 did not do so for reasons best known to him. He
continued to give assurance to PW3, subject to receiving of
Rs.20,000/-. The continuance of insistence by A-1 for money from
PW3 and his detailed conversation with PW3, only indicated that
PW3 had full faith and belief that he can get posting only with the
assistance of A-1. That very impression of PW3 can be clearly
deduced in the given facts & circumstances of this case.
43.20 While cross-examining PW3, three office letters viz.,
Ex.PW3/DX-1, Ex.PW3/DX-2 and Ex.PW3/DX-3, were put to him.
PW3 admitted the contents of those letters. Ex.PW3/DX-1 was an
office order, issued by Assistant Commissioner, MCD, whereby
complainant was promoted from temporary category to permanent
category. Copy of the said office order was marked to SI Rajender
Sharma, West Zone. Document Ex.PW3/DX-2 again was an office
order which noted that complainant was regularized as Regular
Swatchta Karamchari. Document Ex.PW3/DX-3 was a letter, written
by complainant to SI Rajender Sharma, whereby complainant had
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requested that he may be permitted to join duty. That letter was
undated and it noted receiving, given by the concerned department
and signed by SI Rajender Sharma, at point A.
43.21 Reference to above mentioned office orders and letter
was inconsequential. Reason being, that A-1 after putting those
documents to PW3, did not give any suggestion regarding the purpose
of putting those documents to PW3, specifically. Based on arguments,
put forth by Ld. Counsel for A-1, I find that those documents were put
to PW3, for showing that as such, in the wake of said documents, A-1
could not have helped PW3 in getting posting in the same ward. If
that was the case, then A-1 should not have talked to PW3, to the
extent, he did in this case. The context of conversation, if said version
of A-1 is to be believed, would have been different. Surprisingly, in
whole conversation with PW3, A-1 nowhere said that in the wake of
above mentioned documents, he had no role to play, with regard to the
posting of PW3.
43.22 This brings me to the letter Ex.PW3/DX-3, put by A-1 to
PW3. That letter was written by PW3, as admitted by him. In the said
letter, PW3 had written that pursuant to office order dated 27.12.2019,
he had become regular employee and he wanted to join in the West
Zone, Ward No.3S. So, he prayed that he may be allowed to join in
the said Ward. That letter was undated and it noted signature of SI
Rajender Sharma at point A. SI Rajender Sharma had signed the same
and had put date of 04.02.2020. Considering the circumstances of this
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case, I find that said letter was written by PW3, after 28.01.2020. In
other words, said letter lost its significance, as it was written and
received by the department, after conclusion of trap proceedings.
Even otherwise, PW3 explained in his testimony that said letter was
issued because SI Rajender Sharma had become afraid of the trap
proceedings, conducted by CBI. PW3 volunteered that A-1 had run
away from the spot during trap proceedings on 28.01.2020 and he was
not traceable for considerable time, during which his phone was
switched off. That deposition was not countered by A-1, by giving
him suggestions, to the contrary. In other words, A-1 did not dispute
his own conduct as explained by PW3 when trap proceedings on
28.01.2020 were conducted. Questions arise, as to why A-1 fled away
from the spot and why he switched off his mobile phone. A-1
nowhere explained the same, during trial. It only supported
prosecution version.
43.23 PW3 also deposed in his testimony that A-1 had come to
him and had demanded money, which he again repeated after 2-3 days
by saying “Apke 20000 rupay hi lagenge, Inspector saab maan nahi
rahe”. He also deposed that he had never gone to A-1 with regard to
his posting after his first visit to him. As per PW3, A-1 had come to
him, on two occasions. It was only on the second visit of A-1 that
PW3 had told A-1 that he will give the money in the hands of SI
Rajender Sharma or in the hands of A-1. Later on, instead of paying
money, he discussed the matter with his friend Virender Singh and
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thereafter, approached CBI. Said depositions were not countered by
accused persons, by giving suggestions to the contrary.
43.24 Further, PW3 was asked questions by drawing his
attention towards the transcripts, which are on record. He was put
contents of those transcripts, which he admitted. He was not given
any suggestion, to the effect that said transcripts indicated that
conversation with accused persons, was based on loan, which he had
taken from SI Rajender Sharma. Infact, he admitted the suggestion
that “Sewa” at point Y1 in transcript file Q-2 dated 25.01.2020,
exhibited as Ex.PW3/10 and Ex.PW3/11, referred to “bribe money”.
It only supported the case of prosecution.
43.25 PW3 also deposed that he wanted A-1 to speak to SI
Rajender Sharma through mobile phone, regarding bargaining money
from Rs.20,000/- to Rs.15,000/- for his joining. He also deposed that
he was giving money, lying in his pocket to A-1, on 25.01.2020, in
terms of the conversation, he had with A-1. The money was not given
to A-1 by PW3 as PW3 did not give the money to A-1. He admitted
the suggestion that based on conversation with A-1, he asked A-1 to
convey to SI Rajender Sharma that he wanted to pay the demanded
bribe to him. As per him, the import and purport of conversation,
recorded on 24.01.2020, as mentioned in the transcript, was that it
pertained to “graft”. He categorically denied the suggestion based on
loan transaction with SI Rajender Sharma. PW3, therefore, stuck to
his version, based on said deposition.
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43.26 Based on aforesaid appreciation, I find that A-1 had
demanded bribe amount of Rs.20,000/- from PW3, as per the
testimony of PW3.
44. This brings me to the cross-examination of PW3 by A-2.
Same is appreciated by me in my subsequent paragraphs.
44.1 PW3, in his testimony, deposed that on 25.01.2020, when
trap team visited the office of A-1, PW3 met A-1 and talked to A-1.
When PW3 spoke to A-1 about his posting, then A-1 told him to
speak to A-2. Thereafter, PW3 met A-2 and A-2 advised him to pay
the demanded graft amount. Thereafter, on 27.01.2020, PW3 received
call from A-2, who asked PW3 to bring Rs.20,000/- on the next day in
the office. Subsequently, 28.01.2020, PW3 went to the office of A-1
carrying chemical stained GC notes along with trap team.
44.2 Now, question arises, as to how to appreciate the said
conduct of A-2. Can it be said that A-2 had not conspired with A-1 for
getting graft amount? Can it be said that A-2 had merely asked PW3
about the graft amount, at the instance of A-1 and nothing else can be
read into it? In order to get answers to the said questions, let us
appreciate the evidence on record.
44.3 PW3, as such, had deposed that A-1 had asked A-2 to talk
to PW3, outside the office of A-1 on 25.01.2020. A-2, after coming
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out of the office of A-1, had asked PW3 to pay the graft amount. If
A-2 had no concern with A-1 and/ or graft amount, then why did he
comply with the said direction of A-1. As such, it is not brought on
record by A-2 that he was subordinate to A-1 and he had to comply
with the directions of A-1. Even otherwise, those directions were not
legal and did not pertain to the work profile of A-2, who was a Safai
Karamchari. So, A-2 was not bound to comply with those directions,
which infact, he complied.
44.4 Further, PW3 had deposed that on 27.01.2020, he
received a call from A-2, who asked him to bring Rs.20,000/- on the
next day in the office. That fact was never disputed by A-2. As such,
A-2 did not give any suggestion to PW3 to the effect that he had
never called P-3 on 27.01.2020. So, that deposition, by PW3
regarding A-2 calling him on 27.01.2020, further proved the case of
prosecution against A-2. If A-2 had nothing to do with the graft
amount, then why did he call PW3, on his own? How did A-2 came to
know about Rs.20,000/- graft amount? Why did he ask PW3 to bring
that amount to the office on next day? Those were relevant questions,
which should have been answered by A-2, while cross-examining
PW3. That was not done by A-2. It did not help his cause.
44.5 In the cross-examination of PW3, A-2 asked about the
regularization of post of A-2 and about the regularization of PW3.
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Those were not relevant aspects in this case. Moving further, PW3
was given suggestions which PW3 admitted in following manner :-
It would be correct to say that the accused Dhan
Singh never approached me to get my posting at any
specific place as per my desire.
It is correct that accused Dhan Singh personally
did not demand any money from me.
It is correct that accused Dhan Singh never said
anything about the money to me for my posting.
It would be correct to say that accused Dhan Singh
had personally never demanded any money from me and
that whenever he had contacted me, it was at the behest of
accused Kapil.
It is correct that the conversation regarding the
money between me and Dhan Singh, if at all, were only in
terms of the directions given by accused Kapil to accused
Dhan Singh.
44.6 Above mentioned suggestions, though admitted by PW3,
did not help the cause of A-2. Reason being, that those suggestions
nowhere disputed the facts which were deposed by PW3, in his
examination-in-chief. They did not dispute about the call, made by
A-2 to PW3 on 27.01.2020. They did not explain, as to why A-2
asked PW3 to pay graft amount, on the asking of A-1. The fact thatCBI Case No.43/2020 Page 74 of 187
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A-2 had asked PW3 and had contacted him at the behest of A-1,
which is the suggestion, given by A-2 and which is the best case of
A-2, did not absolve A-2 from this case. It only indicated the
possibility of A-1 & A-2 conspiring together, for getting bribe
amount. No other possibility can be seen regarding the justification of
A-2 contacting PW3 at the behest of A-1.
44.7 Besides that, PW3 was questioned by A-2 about the facts
viz., that A-2 never asked him about his posting; that A-2 had never
demanded money from him for getting posting after regularization
order; that A-2 never had any conversation with PW3 personally
regarding demand or acceptance of money for getting posting and
about their acquaintance with each other. All the said facts were
inconsequential, as PW3 deposed, rather repeated the facts, regarding
A-2 talking to him after being asked by A-1, outside the office of A-1
and A-2 calling PW3 on 27.01.2020 for bringing the amount of
Rs.20,000/- to the office. So, PW3 stuck to his version. The facts
deposed by him only prove that A-2 had asked him about bribe
amount of Rs.20,000/- on call and that he had tried to convince PW3
to pay said bribe amount. Those facts proved that A-2 had demanded
bribe amount, independently, when he made a call to PW3 and in
conspiracy with A-1 when he talked to PW3 outside the office of A-1
on 25.01.2020. No other conclusions can be drawn apart from the
same.
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44.8 A-2 did not give any suggestion to PW3 to the effect that
he had never conspired with A-1 for extracting bribe money from
PW3. A-2 did not give any suggestion regarding him not
understanding the directions of A-1, which pertained to recovery of
bribe amount from PW3. A-2 did not give any suggestion to the effect
that he was trying to convince PW3 to repay loan amount to SI
Rajender Sharma, as was the case of A-1. He did not give any
suggestion, based on his ignorance with regard to the demand of bribe
amount by A-1. Lack of said suggestions by A-2 towards PW3 did not
help the cause of A-2. It only probabilized the situation that A-2 knew
that A-1 was demanding bribe amount of Rs.20,000/- from PW3 for
giving posting to PW3 and A-2 was trying to convince PW3 to pay
said amount to A-1. No other possibility can be seen, based on above
mentioned appreciation.
45. Both accused persons did not deny the veracity of the
transcripts, placed on record by prosecution. Infact, questions were
asked from PW3, by referring to the contents of transcripts. By doing
so, accused persons admitted the contents of said transcripts. They did
not highlight the shortcomings in the transcripts by specifically
pointing out to PW3. Apart from that, PW3 did not accept the defence
of accused persons. PW3 was able to depose uniformly that A-1 had
demanded bribe amount from him and in that regard only, A-2 had
made conversation with him. The fact that said bribe amount had to
be further paid to SI Rajender Sharma, as was put forth to PW3, while
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doing his cross-examination, did not absolve accused persons from
this case. The veracity of audio recordings, transcripts, memos along
with CDR & CAF records, was not objected to by accused persons by
cross-examining PW3. It only helped the case of prosecution.
46. PW3, as such, was a bonafide complainant. Accused
persons failed to give any suggestion to him, to the effect that because
of such and such reason, he had deposed falsely against them.
Accused persons failed to bring on record any doubtful antecedents of
complainant, by cross-examining him, which could have made his
testimony doubtful. Accused persons failed to specify any false
motive on the part of complainant, which was the reason of
complainant, deposing against them. The only possibility which I
found probable, behind the complaint of complainant, was that he had
filed the complaint and had deposed in this case, bonafidely.
47. So, I find, based on aforesaid appreciation, that testimony
of PW3 was trustworthy and reliable.
PW4
48. PW4 – Ramesh Verma was the Additional
Commissioner, South DMC, who had deposed that being competent
authority, he had given sanction orders Ex.PW4/1 (colly) and
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Ex.PW4/2 (colly) under Section 19 of PC Act against both accused
persons for prosecution in this case.
48.1 Neither, official post of said witness was disputed nor his
competency to pass said orders was disputed by accused persons by
cross-examining him.
48.2 So far as, A-1 is concerned, while cross-examining this
witness, he asked questions viz., typing of said sanction orders,
dictation of said sanction orders, number of audio recordings he had
heard before passing said orders, time he had taken for passing said
orders and about departmental action against SI Rajender Sharma.
PW4 answered the said questions satisfactorily. Infact, those aspects
were not relevant for the purpose of adjudication of this case.
Therefore, they are discarded by me.
48.3 A-1 gave suggestions to this witness to the effect that he
had passed said sanction orders which were already typed by CBI
officials and he had merely signed those orders. He was also given
suggestion that he had not heard audio recordings and had not gone
through documents, relevant for this case, while passing said sanction
orders. Lastly, he was given suggestion that he had passed those
orders mechanically. All the said suggestions were refuted by him. As
such, PW4 did not accept the defence of A-1 regarding sanction
orders being passed without application of mind.
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48.4 Even otherwise, A-1 should have given reasons behind
giving suggestions to PW4, while cross-examining PW4, so that his
suggestions could have become believable. A-1, nowhere, explained,
as to how he came to know that those orders were typed by CBI
officials and that he had signed those orders, without going through
the record and without hearing audio recordings. Since, it was not
done by A-1, so his cross-examination of PW4 did not help his cause.
48.5 A-2, through his counsel, adopted the cross-examination,
done by A-1. So, conclusion drawn above, was applicable to A-2 and
it did not help his cause.
48.6 In the light of above mentioned appreciation and
conclusion, I find that PW4 was a trustworthy and reliable witness.
PW5
49. PW5 – Shiriniwas Vashisht was a Sanitary
Superintendent. In his testimony, he deposed about the facts that he
knew about accused persons, complainant and SI Rajender Sharma, as
they used to work in the same department, during the relevant time.
He identified accused persons in the Court. As per him, CBI had
called him in the office for identifying the voice in audio recordings,
which were recorded during investigation. He identified the voices of
accused persons, Rameshwar and Rajender Sharma. He identified his
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signatures on voice identification memo Ex.PW5/1. In his presence,
certain audio files were played, which were recorded in SD card in
exhibits Ex.PW3/5 and Ex.PW3/12. He identified the voices of
accused persons, complainant and SI Rajender Sharma in the said
files, when they were played in the Court, on the laptop.
49.1 PW5 was asked questions in cross-examination by A-1
about the powers of SI Rajender Sharma, Rameshwar Dayal and A-1.
Those aspects were not relevant for the purpose of adjudication of this
case. I discarded the same accordingly.
49.2 PW5 stuck to his version regarding him identifying the
voices of persons, as mentioned above, in audio recordings, played by
CBI during investigation. He identified the said voices in the Court
also when those audio recordings were played. As such, his testimony
stood the acid test of cross-examination. I believed his testimony to be
trustworthy and reliable.
PW6
50. PW6 – Rajan Kumar was an independent witness, from
the office of RCS. In his testimony, he deposed that on 10.08.2020, he
was called by CBI, through a notice and he went there with the
permission of concerned competent officer of his office. On reaching,
CBI office, he was informed that in his presence, voices of four
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persons shall be recorded. Thereafter, in fresh DVR, containing SD
cards, voices of four persons viz., A-1, A-2, Rameshwar and another
person whose name he could not recall, were recorded. His own voice
was recorded firstly and at the end of the said recordings. In between,
voices of said persons were recorded. He confirmed that those
persons had given their voice samples, independently, without any
pressure. He identified sample voice recording memos as Ex.PW6/1
to Ex.PW6/4. In his presence, envelopes containing the SD cards
were opened and those SD cards were played in a laptop in the Court.
He identified the voices of A-1, A-2, Rameshwar and Rajender
Sharma, after hearing their voices. The envelopes along with SD
cards were identified by him as Ex.PW6/6 (colly) to Ex.PW6/9
(colly).
50.1 The said testimony of PW6, deposed by him, in his
examination-in-chief, reflected that CBI had taken adequate
precautions to record voice samples of four persons, mentioned
above, by securing presence of this witness. His testimony also
indicated that he had no acquaintance with the said four persons, prior
to meeting them in the office of CBI and that no pressure tactics, was
used by CBI, in his presence for recording of voice samples of said
persons.
50.2 Both accused persons cross-examined this witness,
jointly through common counsel. In his cross-examination, PW6 was
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asked questions, pertaining to his qualification, manner in which,
words were spoken by him and witnesses, at the instance of CBI and
contents of the sample voice recording memos Ex.PW6/1 and
Ex.PW6/2 wherein expression “accused” was used prior to the names
of Rameshwar and Rajender Sharma, respectively.
50.3 Those questions asked by accused persons did not make
any difference to the veracity of testimony of this witness. Reason
being, that this witness was a witness, in whose presence, voice
samples were taken by CBI. The aspect of undue influence over said
witness and the aspect of this witness being a tutored witness of CBI,
were relevant. Accused persons should have concentrated their cross-
examination, with respect to said aspects. It was not done while cross-
examining PW6. So, cross-examination of PW6 did not help the cause
of accused persons. More so, where, PW6 refuted the suggestion that
he was deposing falsely and where, no other suggestion based on the
questions, asked from him, was put to him. Therefore, I find that his
testimony was trustworthy and reliable.
PW7
51. PW7 – Rameshwar Dayal was an Assistant Sanitary
Inspector in SDMC, at the time, when said trap proceedings had taken
place. In his testimony, besides disclosing about his said rank, he
deposed that on 25.01.2020, when he had gone to mark his attendance
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in attendance register before A-1, he found A-1, A-2 and complainant,
present there. Prior to 25.01.2020, he was not acquainted with
complainant. Since, A-1 had called complainant by his name, in his
presence, so, he came to know about the name of complainant.
51.1 PW7 further testified that complainant was giving
Rs.15,000/- to A-1 but A-1 was asking for Rs.20,000/- by stating,
“bees hazar rupay lagenge” to join the duty. He also confirmed that
there was some, “lane den” between them. Thereafter, in his
presence, A-2 was sent by A-1 outside the office for settling the
matter i.e. “baat cheet karne ke liye”. He also observed that A-2 had
told A-1 over a telephonic call that complainant was giving
Rs.15,000/- only but A-1 was insisting for Rs.20,000/-. He had no
idea as to why complainant was giving said money and why A-1 was
demanding Rs.20,000/-. He had no clue about the purpose of said
money. He only advised those persons to resolve the issue and not to
linger on.
51.2 Besides that, PW7 had no knowledge about the total
posts, available in the Ward or the posts which were vacant or regular
sanctioned posts.
51.3 In the presence of PW7, SD card placed in envelope
Ex.PW3/12 was played in the Court, which contained certain audio
files. He identified voices of Rajender Sharma and complainant in
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audio file no.200125_1358. He identified voices of A-1 and
complainant in file bearing no.200125_1417. He also identified his
own voice in the said audio file. He again confirmed that in his
presence, A-1 was asking Rs.20,000/-, whereas, complainant was
giving Rs.15,000/-, for joining duty.
51.4 So, the examination-in-chief of PW7 supported
prosecution as it confirmed that in his presence, A-1 & A-2 had
demanded bribe amount from complainant, for joining duty, on
25.01.2020. The fact that he identified voices of complainant and
accused persons in the audio files, further indicated that CBI had
investigated the matter in said manner. So, there was nothing
unreasonable or doubtful about his said examination-in-chief.
51.5 Both accused persons through their counsel, cross-
examined PW7 jointly. He was asked questions with respect to the
aspect, as to whether he was referring to Rajender Sharma, in the
conversations, he had with accused persons. His attention was drawn
towards the transcripts Ex.PW3/11 in this regard but he did not give
any categorical reply in positive or negative, to those questions.
Reference to Rajender Sharma, by this witness, even if, believed to be
true, did not absolve accused persons from this case, for the reason
that this is not a case where fact-in-issue revolves around the
criminality of Rajender Sharma. This is a case, where accused persons
are charged with the offences under PC Act for demanding bribe
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amount from complainant, under a conspiracy. PW7 did not accept
the theory/ defence of accused persons to the effect that accused
persons had not demanded any bribe amount from complainant. He
uniformly stood on his ground and deposed what he had stated before
CBI. Coupled with the same, accused persons did not bring in any
iota of evidence, which could have indicated that Rajender Sharma
was involved individually or along with accused persons, in the said
crime with which accused persons were charged by this Court. So,
cross-examination of PW7 with respect to aforesaid aspects did not
help the cause of accused persons.
51.6 PW7 refuted the suggestions viz., non-demand of bribe
by accused persons, no conversation being recorded involving
accused persons and complainant for bribe amount and that he was
deposing falsely under threat from CBI and accused persons. So, he
did not accept the defence of accused persons.
51.7 So, based on aforesaid appreciation, I conclude that
testimony of PW7 was trustworthy and reliable.
PW8
52. PW8 – Nitin Kumar was another independent witness,
who deposed in his testimony that in January 2020, he was posted as
Clerk in Bank Of India, CGO Complex, New Delhi. On the
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instructions of AGM, he went to CBI office on 24.01.2020, where he
met complainant, Virender Singh (friend of complainant) and SI
Vikrant Tomar. He was briefed about the complaint of complainant
and thereafter, verification proceedings for verifying the complaint of
complainant took place, in which, he deposed facts in sync with
prosecution version. Same are not repeated here for the sake of
brevity.
52.1 Besides that, PW8 had joined trap proceedings on
25.01.2020 and 28.01.2020. He disclosed details of those
proceedings, which again, were repetition of prosecution version.
Same are not repeated here for the sake of brevity.
52.2 He identified various memos, prepared during
investigation. He identified voices of the persons, recorded during
investigation when audio files in SD cards were played in the Court.
Same again are not repeated here for the sake of brevity.
52.3 Suffice it is, to mention here that based on voice
recordings, he confirmed in his deposition that A-1 and A-2 had
conversation with complainant, whereby demand of Rs.20,000/- was
made by them.
52.4 PW8 was cross-examined at length by accused persons.
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52.5 So far as, A-1 is concerned, he questioned the manner in
which, proceedings had taken place, during investigation. PW8 was
able to give details of the same, satisfactorily. As such, those details
only corroborated prosecution version and did not make any dent on
the testimony of PW8.
52.6 Various suggestions were put to PW8 viz., that PW8 was
called in CBI office on 17.08.2020; that PW8 had not gone to CBI
office before 17.08.2020; that he was a planted witness; that all the
exhibits were made on 17.08.2020; that he had not applied his mind
before recording his statement under Section 161 CrPC; that he had
seen written complaint of complainant on 17.08.2020; that he was not
part of trap proceedings which were conducted on 24.01.2020,
25.01.2020 and 28.01.2020; that he had not gone to MCD office on
any of said three dates; that all the locations and offices, mentioned in
his examination-in-chief were told to him by CBI and that he was
deposing falsely. PW8 refuted those suggestions and thus, did not
help the cause of A-1.
52.7 Besides that, PW8 categorically deposed in his cross-
examination that complainant had informed him and others, present in
the office of CBI about the fact that A-1 had demanded bribe of
Rs.20,000/-. He denied that he had interpreted the conversation as
demand of bribe and amount being in thousand, at the suggestion of
CBI officials. He also deposed that he came to know that A-2 was
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speaking to A-1 on call as name of A-1 was being taken by A-2 during
said call. Said deposition, as such, did not cast any doubt on his
testimony.
52.8 So, A-1 was not able to make any dent of doubt in the
testimony of PW8.
52.9 So far as, A-2 is concerned, he also questioned PW8 with
regard to the timings when proceedings on 24.01.2020 and
25.01.2020 had taken place. PW8 answered those questions
satisfactorily. There was nothing unreasonable or doubtful about said
answers, being given by PW8. Further, PW8 was asked aspects viz.,
the place where he was standing when he visited the office of A-1 on
24.01.2020 and 25.01.2020, the time which was spent in the office of
A-1, when trap proceedings were conducted and about him hearing
the conversation of complainant and accused persons. Those
questions indicated that A-2 admitted the fact that PW8 had joined the
proceedings on 24.01.2020 & 25.01.2020. PW8 gave answers to the
said questions, by giving necessary details. As such, there was
nothing unreasonable or improbable, in the conduct of PW8. Apart
from that, I find that those aspects were not relevant, once audio files
in original are placed on record by prosecution and once, this witness
had deposed about his visits to the office of A-1, in sync with
prosecution version. The fact that witnesses identified their voices in
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said audio files, when those audio files were played in the Court,
made the aforesaid questions, meritless.
52.10 Even otherwise, accused persons did not put their
defence of PW8 being an interested witness. A suggestion was put to
him, to the effect that he was a regular planted witness of CBI which
he refuted. It was never explained by accused persons as to based on
what record, they had claimed so. No proof was filed by accused
persons to the effect that this witness had deposed in favour of CBI in
some specific cases. So, said claim of accused persons was baseless.
52.11 PW8 explained in his testimony that on 25.01.2020, he
had heard A-2 speaking to someone on phone and talking to
complainant, when they had come out from the office of A-1. It only
made the case of prosecution, stronger.
52.12 As such, based on aforesaid appreciation, I find that
testimony of PW8 was trustworthy and reliable.
PW9
53. PW9 – Naveen Bhardwaj was another independent
witness, being an Inspector in GST Department, Delhi. He deposed in
his testimony about him joining investigation on 25.01.2020. He
deposed facts viz., the manner in which pre-trap proceedings were
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conducted in CBI office and later on, visit to the office of A-1 and
finally, returning back to CBI office, in sync with prosecution version.
Details of the same are not repeated here for the sake of brevity. He
identified voices of the concerned persons in audio recordings, played
in the Court, which were so recorded, during investigation in DVR,
containing SD cards, being carried by complainant.
53.1 He identified the documents/ memos, prepared by CBI
during investigation. So, his examination-in-chief, only supported
prosecution version.
53.2 In his cross-examination by A-1, PW9 was asked
questions with regard to the manner he had joined investigation and
the manner in which, trap proceedings had taken place on 25.01.2020.
He did not faulter on material particulars of this case. He lacked
knowledge regarding facts viz., name of friend of complainant who
had accompanied him on 25.01.2020, the persons from CBI who were
present in the room when his introductory voice was recorded, the
colour of building of SDMC where he had visited and the fact that
CBI had told him on 17.08.2020 that SI Rajender Sharma and ASI
Rameshwar Dayal were no longer accused in this case. Lack of
knowledge with regard to aforesaid facts, did not make his testimony
doubtful. Reason being, that those facts did not create doubts on the
facts, deposed by him, in his examination-in-chief. Further, those
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facts were facts based on marginal aspects, to the issue-in-hand and
did not deal with the fact-in-issue, involved in this matter.
53.3 PW9 was put suggestions viz., that he had not taken part
in trap proceedings, as deposed by him; that he had signed the
documents in CBI office; that he had not witnessed any trap
proceedings; that accused persons were falsely implicated; that he
was a planted witness who had deposed in favour of CBI in similar
other matters; that all the proceedings in this case conducted by CBI
were fabricated and manipulated and that he was deposing falsely at
the behest of CBI. PW9 refuted said suggestions and therefore, he did
not accept the defence of A-1.
53.4 So far as, A-2 is concerned, he accepted the cross-
examination, which was done by A-1. So, conclusion drawn above,
applied to the cause of A-2. Besides that, A-2 asked questions with
regard to the manner in which PW9 had received instructions from
seniors to visit CBI office and the details of his mobile number. Those
aspects were not relevant and therefore, I discarded the same.
53.5 In the wake of above mentioned appreciation, I find that
PW9 was a trustworthy and reliable witness.
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PW10
54. PW10 – Pradeep Kumar Sharma deposed in his
testimony that in January 2020, he was posted as Administrative
Officer in the Department Environment Management Services
(DEMS), SDMC. He was acquainted with SI Rajender Sharma, A-1,
ASI Rameshwar Dayal and complainant. He testified that in his
tenure, temporary officials of SDMC were regularized by DEMS,
Head Quarters and were then sent to concerned zones and thereafter,
were given postings in the Wards, based on vacancies. He deposed
that complainant was given order for joining in Ward 3S by his office.
He identified the letter along with other documents, in this regard as
Ex.PW10/1 (colly). He also identified letter along with other
documents, pertaining to posting of Rameshwar Dayal as Ex.PW10/2
(colly). Besides that, he identified letter dated 07.08.2020, pertaining
to sanctioned and actual strength of Ward 3S, given to Sumit Kumar.
On all the said three letters, he identified his signatures at point A. He
also identified order of complainant for joining in Ward No.3S as
Ex.PW3/DX-2. He identified A-1 in the Court.
54.1 In his cross-examination, PW10 was put questions, based
on documents, he identified in his examination-in-chief. Nothing
material, supporting the defence, was culled out, from said cross-
examination by accused persons. As per his knowledge, letter
Ex.PW3/DX-1 was not marked to A-1 and SI Rajender was the
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concerned officer, who was responsible for assigning, working post to
complainant. He testified that regularization of an official had to be
done by Head Quarter.
54.2 Said cross-examination of PW10 did not cast any doubt
on the testimony of PW10. Said witness was an official witness, who
had placed on record official documents, pertaining to regularization
of complainant and joining of complainant. Those documents were
not objected to by accused persons. No suggestion was given by
accused persons, to the effect that those documents were forged or
that said witness was deposing falsely.
54.3 As such, testimony of PW10 only supported prosecution,
to the effect that complainant was regularized by his department and
he was allowed to join in Ward No.3S. It also corroborated the
prosecution version, to the effect that SI Rajender Sharma was the
person, responsible for assigning posting to complainant. Now, these
facts only strengthened the case of complainant, who had alleged that
he was regularized by his department and thereafter for getting
posting in Ward 3S, he had approached A-1. In that background, the
allegations of complainant that A-1 had demanded bribe, only gets
probable. As such, A-1 never directed complainant to not to talk to
him, rather should approach SI Rajender Sharma, directly. Response
of A-1, in the light of documents, exhibited by PW10, supported
prosecution.
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54.4 Testimony of PW10, therefore, was found by me as
trustworthy and reliable.
PW11
55. PW11 – Aditya Kumar Singh was an independent
witness, who had joined the investigation on 28.01.2020. In his
testimony, he deposed that on 28.01.2020, when he was posted as
Manager, Scale-II with Syndicate Bank, R.K. Puram, Delhi, he had
gone to CBI office, on the directions of his office. After reaching CBI
office, he met complainant, another independent witness Nitin and
CBI officials. He was briefed about the complaint of complainant. He
deposed facts viz., pre-trap proceedings comprising of demonstration
proceedings of use of SD card in DVR, application of chemical on
currency notes and effect of use of that chemical in Sodium Carbonate
Solution, placement of those currency notes in the pocket of
complainant, fixing of fresh DVR in the pocket of complainant, visit
to the office of A-1 and thereafter, returning back to CBI office.
55.1 He identified voices of the persons, which were recorded
in SD card, during said trap proceedings, when they were played in
the Court. He identified the envelope Ex.PW3/16 which contained the
said SD card, also.
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55.2 In his cross-examination, A-1 asked this witness about
facts viz., the manner in which he had reached the office of CBI on
28.01.2020, recording of video or taking photograph when his
introductory voice was recorded, the manner in which introductory
voice of another independent witness was recorded and about
recording of his statement by CBI. Those aspects were not relevant as
this witness deposed facts regarding joining trap proceedings on
28.01.2020, which were corroborated by the audio recordings, which
he identified in his testimony. No doubt was created by A-1 by cross-
examining this witness with respect to said aspects.
55.3 PW11 refuted suggestions viz., that he did not join trap
proceedings; that he was not called by CBI for joining proceedings;
that he was a planted witness by CBI; that he was not in a position to
see complainant and independent witness Nitin going inside the office
of A-1 and that he had deposed on the basis of hearsay. So, he did not
accept the defence of A-1.
55.4 PW11 did not give specific reply with respect to certain
aspect viz., that Virender Singh had joined trap proceedings with him;
that he had gone to CBI office on 19.08.2020; that his statement was
recorded by CBI which he had signed; that the name of person who
had informed him about accused persons demanding money from
complainant for his posting; that CBI officials had informed him that
SI Rajender Sharma is not cited as an accused and that DVR was
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switched off after recording of introductory voice. Those aspects did
not create any doubt on the facts, deposed by this witness in his
examination-in-chief. Again, those aspects were ancillary in nature
and did not adversely affect the prosecution case. Therefore, it did not
help the cause of accused persons. Even otherwise, I find that said
aspects, were minute details of the case, which had taken place in the
year 2020. Now, this witness had come in the Court for deposing in
the year 2024. Possibility of his memory fading away, leading to non-
specific replies by him, with regard to said aspects, as such, cannot be
ruled out. There is nothing abnormal about the said manner of
deposition by this witness, based on said appreciation.
55.5 Therefore, based on aforesaid appreciation, I find that
PW11 was an independent witness, who had deposed, without being
influenced by anybody, in the Court. His testimony was found by me
to be trustworthy and reliable.
PW12
56. PW12 – Inspector Sumit Kumar was one of the
Investigating Officer in this case. In his testimony, he deposed that on
the directions of SP concerned, this matter was given to him for
investigation. Earlier, it was being investigated by Inspector
Dharmender Kumar.
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56.1 During his tenure as an Investigating Officer, he collected
documents from previous IO through handing over memo. He
identified the documents, prepared by the previous IO which are
already exhibited in the testimony of PW3. He collected CDR & CAF
records from the concerned companies, details of which are
mentioned in the testimonies of PW1 & PW2. He identified the voice
sample memos and voice identification-cum-transcript memos,
already exhibited in the testimonies of PW3, PW5 & PW6. Details of
the same are not repeated here for the sake of brevity. Besides that, he
identified memos which he had prepared during investigation as
Ex.PW12/1 & Ex.PW12/2, bearing his signature at point A. He
identified letters exhibited in the testimony of PW10, memos
exhibited in the testimony of PW2 and letters exhibited in the
testimony of PW1. Lastly, he identified letter dated 06.10.2020,
written by the then SP to CFSL as Ex.PW12/3 by identifying the
signature of said SP Ashwin Shenvi and envelopes along with DVR,
collectively referred as Ex.PW12/4. He identified the voices of the
concerned persons in audio files, played in the Court, which were so
recorded during investigation.
56.2 In his cross-examination, PW12 deposed that he had
prepared transcript after listening to the recordings, which were
recorded during investigation. He deposed that he had put questions
to complainant with regard to conversation, complainant had with
accused persons on 24.01.2020, 25.01.2020 and 28.01.2020. He
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confirmed that every action taken by CBI, is duly recorded by CBI
and in those recordings, details of persons who had participated were
also mentioned. He was given suggestion to the effect that superior
officials of CBI had instructed him to implicate A-1 in present case by
all means and that is why he did not enquire from complainant about
the previous transactions of complainant and A-1 or Rajender Sharma.
That suggestion was refuted by PW12. That suggestion was never
explained by A-1 during trial. In other words, A-1 never explained as
to which officers of CBI wanted A-1 to be implicated in this case and
what was the interest of those officers in that regard. He refuted the
suggestion of complainant writing his complaint Ex.PW3/1, on the
directions of CBI officers for falsely implicating A-1.
56.3 PW12 explained that in the transcripts of the
conversation dated 24.01.2020, the word “peshkesh” and the
sentences, “jo tane karna hai, wo kar de…..15 ek de diya……yeh diye
hai” implied bribe. That explanation strengthened prosecution version
as said explanation was not countered A-1 by asking further
questions. He admitted that he was of the opinion that “sewa” used in
the conversation referred to “bribe”. A-1 did not give any counter
explanation to the meaning of “sewa” used in the conversation
between the parties.
56.4 PW12 refuted the suggestion that Rajender Sharma was
removed from charge-sheet from the category of accused. No reason
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was given by A-1, based on which, he had claimed that Rajender
Sharma was removed from charge-sheet from the category of
accused. In other words, A-1 did not explain as to why CBI would
have removed Rajender Sharma from the charge-sheet, being an
accused. PW12, rather explained that during investigation, no fact
was discovered which could have indicated that SI Rajender Sharma
had demanded bribe from complainant and that is why SI Rajender
Sharma was not arrayed as an accused.
56.5 PW12 was asked questions with regard to the power of
A-1 to provide joining to complainant. Further, he was questioned
about the letter of complainant, pertaining to joining, addressed to SI
Rajender Sharma. He was asked questions with regard to
investigation, being carried out by CBI against SI Rajender Sharma
on different angles. He was asked questions based on involvement of
SI Rajender Sharma with regard to receiving of bribe from
complainant through A-1. Again, said questions did not absolve A-1
from this case. Those questions pertained to the role of SI Rajender
Sharma and I again reiterate that in this case, SI Rajender Sharma is
not the accused. I failed to understand as to how in the light of
incriminating evidence against him, A-1 would have benefited, if SI
Rajender Sharma was implicated in this case. Fact of the matter
remains that not only complainant but other witnesses, of prosecution,
have deposed that A-1 had demanded bribe money from complainant.
None of the prosecution witnesses deposed that SI Rajender Sharma
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had demanded bribe from complainant, which also did not help the
cause of accused persons. So, the aspect of implication of SI Rajender
Sharma in this case, as highlighted by A-1, while cross-examining
PW12, was baseless.
56.6 PW12 was asked about his opinion regarding the
interpretation of words used in transcripts, recorded during
investigation. PW12 explained that contents of said transcripts
indicated the fact that bribe amount was demanded by A-1 and not by
SI Rajender Sharma. So, PW12 deposed on the same lines, as that of
prosecution.
56.7 PW12 admitted the suggestion that A-2 had called from
his mobile phone to A-1 while having conversation with complainant.
Further, he was asked, if it is correct that A-2 had made conversation
with complainant and that call was made by A-1 to A-2. Those
suggestions were admitted by PW12. I failed to understand as to why
those suggestions were put to this witness, as they indicated
conversation between complainant and accused persons, which were
relevant facts and which only supported prosecution. So, A-1, in a
way confirmed prosecution story by putting those suggestions.
56.8 PW12 was asked questions with regard to the
conversations between complainant and accused persons. Those
conversations were recorded in audio files and those audio files along
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with transcripts are appreciated by me separately in this judgment.
Therefore, they are not appreciated here, at this stage, in detail.
56.9 PW12 confirmed that SI Rajender Sharma was not made
accused in this case, as there was lack of credible and sufficient
evidence and it was collective decision of the department, to not
implicate him. PW12 also deposed that based on collective decision
of the department, persons viz., Dipender Kumar Singh, Harish
Chander, S.N. Vashisht, Vinod, Harnam Singh, CMS Negi, Nikesh
Upadhyay, S.P. Singh, Pradeep and Vikas Pannu were not made
witnesses. Accused persons argued that by not implicating SI
Rajender Sharma as accused and by not naming above mentioned
persons as witnesses, investigation was not proper and benefit of the
same has to be given to accused persons. Thus, they claimed that due
to improper investigation, accused persons should be acquitted.
56.10 Before appreciating the said arguments of Ld. Counsels
for accused persons, I must mention here that irregularity or
deficiency in investigation by IO need not necessarily lead to
rejection of the case of prosecution, when it is otherwise proved. The
only requirement is use of extra caution, in evaluation of evidence. A
defective investigation cannot be fatal to prosecution where occular
testimony is found credible and cogent. Reliance in this regard is
placed on case laws titled as Khem Ram vs. State of Himachal
Pradesh (2018) 1 SCC 202, State of Karnatka vs. Suvarnamma
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CBI vs. Kapil & Anr.
(2015) 1 SCC 323 and Hema vs. State 2013 (81) ACC 1 (SC) – three
Judge bench.
56.11 So, it is clear that defective investigation by itself, cannot
be seen as ground for giving benefit to accused persons, if other
evidence, produced by prosecution, is cogent.
56.12 Based on said understanding of law, I find that above
mentioned claim of Ld. Counsels for accused persons, was not legally
tenable. Reason being, that other evidence, brought on record by
prosecution is found by me to be trustworthy. Apart from that, what is
not brought by prosecution, is not relevant for the purpose of
adjudication of this case. Coupled with the same, I find that so called
improper investigation by CBI, as highlighted by Ld. Counsels for
accused persons, did not make the other evidence, brought on record
by CBI, doubtful.
56.13 Lastly, PW12 refuted suggestions, put to him by A-1 viz.,
that he deliberately did not enquire about financial transactions
between complainant and A-1 or Rajender Sharma; that he had
instructions from senior officers to falsely implicate A-1; that CBI
deliberately destroyed investigation with regard to questions, put to
Rajender Sharma for saving him; that CBI destroyed record with
regard to questions, put to A-1; complainant had told him that A-1
was only trying to mediate between complainant and SI Rajender
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Sharma; that Rameshwar Dayal and Dipender Singh were not present
during investigation; that conversation between complainant and A-1
pertained to friendly loan; that investigation of CBI is faulty; A-1 is
falsely implicated; CDRs of A-2 and another number of SI Rajender
Sharma were removed from case file to support this case as those
removed CDRs did not support the case of CBI; that SI Rajender
Sharma had clarified the financial transactions with complainant; that
SI Rajender Sharma did not want to disclose that he had given money
to MCD employees with interest; that various CBI officials, as noted
above did not depose in this case as they refused to support CBI
because of biased investigation; that Virender Singh refused to
support CBI as he was against biased investigation; that A-1 was
trying to recover the money due to his senior SI Rajender Sharma
which was paid to complainant; that complainant never used the word
‘bribe’ or resembling word during entire conversation; that A-1 had
no power to give posting to complainant; that A-1 had no reason to
demand any bribe from complainant; that A-1 was following orders
from his superior SI Rajender Sharma and that this case was based on
pre-recorded conversations heavily edited by complainant and his
friend Virender Singh which were handed over by them to CBI.
56.14 Refusal of aforesaid suggestions means that PW12 did
not accept the defence of A-1. Apart from that, accused persons, on
their part, failed to answer following questions, during trial, which
had arisen, on the basis of the suggestions which were given to PW12.
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Why SI Rajender Sharma was not made defence witness
by accused persons?
How A-1 came to know that various witnesses refused to
support CBI, based on biased investigation?
Which documents/ conversations were removed from the
records and how A-1 came to know about the same?
On one hand, A-1 claimed by way of suggestion that
friend of complainant Virender Singh did not come to depose as
he found that in this case, biased investigation was being done
and on other hand, A-1 gave suggestion that complainant along
with Virender Singh had given conversations after editing
them. Which version of A-1 had to be believed, and why?
Why was A-1 complying with the directions of SI
Rajender Sharma regarding recovery of loan amount as it was
not part of work profile of A-1?
Who gave authority to A-1 to mediate between
complainant and SI Rajender Sharma for settling the dispute of
financial transactions?
Why A-1 being a bonafide government employee, did not
bring the said fact of SI Rajender Sharma giving loan to
complainant to higher-ups?
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56.15 In the absence of answers to said questions, the whole
cross-examination of PW12 seemed to be a mechanical exercise, in
which questions were put, just for the sake of it. So, questions which
were asked during cross-examination of PW12, were having no basis
and proof.
56.16 Further, PW12 was asked questions about the word,
“Sewa”, which he referred as “bribe” in the charge-sheet. He
explained that based on cumulative assessment of entire material
including the transcripts, he had the opinion “Sewa” meant “bribe”.
That understanding was not challenged by accused persons. Even
otherwise, I found the said explanation, given by PW12, to be
plausible, after considering the evidence, brought on record by
prosecution, in this case.
56.17 PW12 was asked questions regarding reason of non-
implication of SI Rajender Sharma in this case. He answered that due
to lack of incriminating evidence against SI Rajender Sharma, he was
not implicated in this case. Again, that explanation was not countered
by accused persons, based on some specific reasoning.
56.18 Both accused persons, cross-examined PW12, on the
basis of their claim that accused persons had not authority to give any
posting to complainant and therefore, the whole version of
complainant approaching A-1 for getting posting, was misplaced and
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false. That claim of accused persons was not tenable as none of the
prosecution witnesses, including PW12 accepted it and on other hand,
that issue has to be seen from the perspective of complainant, who got
regularized in his employment after spending 22 years of service. The
fact that A-1 was senior to complainant, is not denied by accused
persons. Coupled with the same, acquaintance of complainant with
A-1 for more than a decade, is also not denied. In such circumstances,
belief of complainant, that he can get posting through A-1, as such,
was not improbable or unbelievable in nature. So, claim of accused
persons regarding not believing the version of PW12 or complainant
on the basis of the fact that accused persons had no role to give
posting to complainant, was baseless.
56.19 Surprisingly, PW12 was asked questions, pertaining to
departmental enquiry of SI Rajender Sharma and about lack of
authority on the part of accused persons to give posting to
complainant. He was also asked questions with regard to the
interpretation of conversation between complainant and accused
persons, which was recorded during investigation. All the said
aspects, should have been asked by them from complainant or any
witness from the department where complainant used to work. PW12
was an Investigating Officer and putting such questions to him was
misplaced. Even otherwise, those questions were not relevant.
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56.20 Besides that, PW12 was asked questions with regard to
aspects like; wrong mentioning of certain dates/ words in the charge-
sheet, non-recording of statements of some witnesses who were part
of trap team and likewise. Those were irrelevant aspects as
prosecution witnesses including PW12 stuck to their versions
regarding accused persons, demanding bribe amount, from
complainant, in the manner, which synced with prosecution version.
56.21 Therefore, testimony of PW12 stood the acid test of
cross-examination and I believed him to be a trustworthy witness.
PW13
57. PW13 – Amitosh Kumar was the Senior Scientific
Officer who deposed that based on request letter of CBI Ex.PW12/3
(colly), which his office had received, he was given the duty to do the
examination. He considered all the parcels which accompanied said
request letter and based on examination of the same, he filed his
report Ex.PW13/1 (colly). He also deposed about his educational
qualifications and experience of examining about 900 cases, prior to
examining the evidence, collected by CBI in this case.
57.1 PW13 identified the envelopes which he had received
from CBI, which contained DVR and SD cards, when they were
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opened in the Court. Those envelopes were already exhibited in the
testimony of PW3, PW6 & PW12, noted his signatures point A.
57.2 In his cross-examination, PW13 deposed that report
Ex.PW13/1 (colly) was completely prepared by him and it did not
contain any error, as per him. He deposed that he had received
training in the field of auditory analysis of voice specimens, regarding
which he had a certificate. Further, he had used Speech-Science-Lab
software for segregating the words used for analyzing the audio files
from Ex.Q-1 for A-1. He deposed that based on his auditory analysis,
he had given his opinion in his report.
57.3 As such, there was nothing, based on which, I could have
doubted his report and the manner in which, he had analyzed the
exhibits, sent by CBI to his office. He refuted the suggestions of
deposing falsely and not carrying out proper and scientific analysis of
the exhibits. He denied filing of false report in this case. As such, his
testimony was trustworthy and reliable. I believed his testimony
accordingly.
PW14
58. PW14 – Vikrant Tomar was the Officer of CBI, who
had verified the allegations of complainant, after receiving complaint
of complainant on 24.01.2020. He deposed in his testimony, that he
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was assigned the task to verify the contents of the said complaint by
SP Abhishek Dular on 24.01.2020. He gave details of the said
verification proceedings, which were in tune with prosecution
version. Same are not repeated here for the sake of brevity. He also
deposed that he had prepared the verification memo Ex.PW3/2,
bearing his signature at point C. He identified the envelope,
containing SD card and company paper packing with regard to said
verification proceedings as Ex.PW3/5 (colly). He also deposed about
the proceedings which took place on 25.01.2020 and 28.01.2020,
which again were in tune with prosecution version. Same are not
repeated here for the sake of brevity.
58.1 He identified documents viz., handing over memo
Ex.PW3/6, pre-trap memos Ex.PW3/15 & Ex.PW3/28, along with
envelopes Ex.PW3/5 (colly) and Ex.PW3/12 (colly) which were
opened in his presence in the Court. He identified voice of
independent witness Nitin Kumar in audio file no.200124_1437,
when it was played in the Court.
58.2 In his cross-examination, PW14 clarified by answering
that based on enquiry from complainant, he came to know that
complainant had not given any bribe to accused persons and the
financial aspect part in the complaint was written by mistake by
complainant. Infact, the aspect of financial transactions between
complainant and SI Rajender Sharma is already appreciated by me in
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detail, while appreciating the testimony of complainant. Reference to
the said financial transactions, while cross-examining PW14,
therefore, was misplaced as PW14 was not the relevant person who
could have explained the same.
58.3 PW14 deposed facts regarding independent witness Nitin
Kumar, joining the proceedings on 24.01.2020, 25.01.2020 &
28.01.2020. He confirmed that complainant adhered to the directions,
which were given to him, by CBI, during verification proceedings. He
explained that though the word, “thousand” and / or “bribe” was not
mentioned in the conversation, as noted in verification memo
Ex.PW3/2 but it was an inference and corroboration from the
complainant. That explanation was not countered by accused persons,
through any reasoning.
58.4 PW14, in his deposition, deposed about him making
enquiry from complainant. He answered that the specific demand for
money was reflected from the words of A-1 when A-1 stated,
“Pandrah mein uske haath mein pakdaunga”. He gave details of the
manner in which complaint was received at CBI office and the
manner in which trap team had visited the office of A-1. No major
contradiction was culled out by accused persons, by cross-examining
him, which could have made his testimony doubtful. The above facts,
deposed by him, only made his testimony trustworthy.
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58.5 PW14 refuted suggestions viz., that entire case was
managed by Virender Singh (friend of complainant); that complaint
was filed after carrying out verification proceedings; that no
verification or trap proceedings were conducted by CBI; that original
complaint of complainant was wrongly destroyed by CBI; that
complainant had money transactions with SI Rajender Sharma; that
all the conversations reflected that complainant had loan transactions
with SI Rajender Sharma which complainant had to return back with
interest; that SI Rajender Sharma was not implicated as accused as SI
Rajender Sharma had bribed CBI officers through CBI tout Virender
Singh and that accused persons were falsely implicated in this case. It
means that PW14 refuted the probable defence of accused persons.
58.6 Based on aforesaid appreciation, I believed the testimony
of PW14 to be trustworthy and reliable.
PW15
59. PW15 – Inspector Dharmender Kumar was the initial
Investigating Officer in this case. He deposed in his testimony about
the trap proceedings which occurred on 25.01.2020 and he identified
the memorandums dated 25.01.2020, which were already exhibited as
Ex.PW3/6 (colly) and Ex.PW3/14 (colly), bearing his signatures at
point X, in tune with the testimonies of other prosecution witnesses
and the case of prosecution. Details of the same are not repeated here
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for the sake of brevity. He also deposed about the chain of events
which took place on 27.01.2020, in tune with prosecution version.
Again, same are not repeated here for the sake of brevity. He
identified memorandums dated 28.01.2020, already exhibited as
Ex.PW3/15 & Ex.PW3/28, bearing his signature at point F. He
identified the envelopes, which were already exhibited as Ex.PW3/30
(colly), Ex.PW3/16 (colly) and Ex.PW3/12 (colly), bearing his
signatures at point X & D.
59.1 The examination-in-chief of PW15, therefore, reiterated
the prosecution version and it did not attract any doubt.
59.2 In his cross-examination by A-1, PW15 deposed facts
viz., that trap team on 25.01.2020 was constituted within 30 minutes;
that he was part of around 10 trap proceedings in the past; that he had
discussed the matter with complainant and after analyzing the
verification proceedings, he came to the conclusion that demand was
only made by A-1; that complainant was instructed specifically to
bring bribe money on 25.01.2020 and 28.01.2020; that complainant
did not violate the instructions which were given to him by CBI; that
DVRs were ‘switched on’ and ‘switched off’ with his decision; that
independent shadow witnesses had accompanied complainant to the
office of A-1; that site plan was not prepared as trap was not
successful; that complainant had told him about A-2 following
complainant from the office of A-1 on his own and enquiring from
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complainant about the matter; that DVR was ‘switched on’ when
complainant had conversation with accused persons; that complainant
had told him on 27.01.2020 that A-2 had told complainant that A-1
will not take any amount less than Rs.20,000/-; that he had heard the
relevant portions of audio recordings for verifying the version of
complainant, at the spot and not in CBI office; that complainant, in
his conversation with SI Rajender Sharma was confirming the fact
that A-1 was demanding money. All the said facts basically cleared
the position and understanding of PW15. Those facts only supported
prosecution version and did not cast any doubt on the testimony of
this witness.
59.3 In his cross-examination by A-2, PW15 deposed facts
regarding the time and circumstances when trap proceedings were
conducted on 25.01.2020 and the fact that complainant had told him
about the conversation which took place between complainant and
accused persons. He also deposed that copy of audio files, pertaining
to Q-2 & Q-3 were prepared by him and that site plan is prepared
ordinarily when trap is successful. Said deposition again gave clarity
to prosecution version and did not make his testimony doubtful.
59.4 PW15 was given suggestions viz., that accused persons
were falsely implicated; that no trap proceedings, as deposed by him,
had taken place; that audio recordings were forged; that case of CBI
was false; that accused persons refused to bribe Virender Singh; that
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Rajender Sharma and Rameshwar Dayal were not implicated in this
case as they had paid bribe to CBI; that complete documents were not
placed on record by CBI for falsely implicating accused persons; that
audio files, placed on record were edited and were based on pre-
recorded conversations; that independent witnesses had signed
documents as they were planted witnesses who had not joined the
proceedings during investigation; that SI Rajender Sharma had
demanded money from complainant; that this witness had wrongly
identified the signatures of witnesses on memos, prepared on
25.01.2020 & 28.01.2020; that no site plan was prepared as no trap
proceedings took place and that he had made improvements in his
testimony by repeatedly taking the name of A-1. Refusal to said
suggestions by PW15 indicated that he did not accept the defence of
accused persons.
59.5 As such, PW15 deposed facts which only supported
prosecution. There was nothing unreasonable or improbable in his
testimony. Therefore, I believed his testimony to be trustworthy and
reliable.
APPRECIATION OF CDR AND CAF RECORD
60. Prosecution has placed on record CDR and CAF record,
pertaining to mobile numbers of complainant and accused persons.
Based on CAF record Ex.PW1/2, mobile number 9312109329 was
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proved to be belonging to complainant. Based on CAF record
Ex.PW1/4, mobile number 9212604605 was proved to be belonging
to A-1. Further, pre-trap memo dated 28.01.2020 Ex.PW3/15, noted
that mobile number 8810269991, belonged to A-2. Said record was
not objected to on the ground of admissibility or mode of proof by
accused persons. Further, accused persons did not deny the fact that
said mobile numbers belonged to said persons. Coupled with the
same, said CDRs were accompanied with certificates under Section
65-B IEA. Those certificates were not disputed by accused persons.
The said certificates were furnished by competent officer of the
concerned companies, which was maintaining CAF & CDRs.
Testimonies of those competent officers viz., PW1 & PW2 are already
found by me to be trustworthy and reliable. As such, I find that said
CAF & CDRs were duly proved by prosecution.
60.1 In the wake of above conclusion, I find that CDRs
furnished by PW1 & PW2, noted that complainant, A-1 & A-2 were
in touch with each other, on 25.01.2020, 27.01.2020 & 28.01.2020,
through their mobile phones. To highlight the same, I am mentioning
the relevant call details, in tabular form, below :-
S.No Date Mobile No. Documents & Time 1 25.01.2020 9312109329 (Ranveer Singh) D-part of D20 (14.09
9212604605 (used by accused PM). It is part of
Kapil) CDR, exhibited as
Ex.PW1/5 and also in
Ex.PW1/8 (colly)
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2 27.01.2020 9212604605 (used by accused Part of D20 (9.11
Kapil) AM). It is part of
8810269991 (used by accused CDR exhibited as
Dhan Singh) Ex.PW1/8 (colly)
3 27.01.2020 9312109329 (Ranveer Singh) Part of D20 (13.25
8810269991 (used by accused PM). It is part of
Dhan Singh) CDR exhibited as
Ex.PW1/7 (colly)
4 28.01.2020 9212604605 (used by accused Part of D20 (7.36
Kapil) AM, 7.40 AM, 7.41
8810269991 (used by accused AM). It is part of
Dhan Singh) CDR exhibited as
Ex.PW1/8 (colly)
5 28.01.2020 9312109329 (Ranveer Singh) Part of D20 (9.55 AM
8810269991 (used by accused & 11.52 AM). It is
Dhan Singh) part of CDR,
exhibited as
Ex.PW1/7 (colly).
Further, this call was
also recorded in the
SD Card marked as
Q-3 through DVR
and transcript of the
said recording also
mentioned in the
document (D-14).
Same was exhibited
as Ex.PW3/19.
60.2 The above mentioned call detail records of mobile
numbers of complainant and accused persons, indicated that they
were talking to each other, at the said time on said days. Accused
persons, failed to give any explanation, which is believable,
countering the case of prosecution. In other words, I find that
prosecution, on the basis of said calls records, proved the fact that
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complainant and accused persons had talked to each other on said
days. The trap proceedings were conducted during those days. The
only possibility, which was probabilized, based on said call detail
records, was that complainant and accused persons, were talking
about bribery. Apart from that, no other possibility was seen by me.
Accused persons failed to place on record any other probability, apart
from the possibility of them talking about bribery with complainant.
60.3 So, said CDR & CAF records only supported and proved
prosecution version.
APPRECIATION OF TAPE RECORDED STATEMENTS &
THEIR TRANSCRIPTS
61. In order to give strength to its case, prosecution relied
upon the electronic evidence, in the shape of audio recordings. The
transcripts of said audio recordings are also part of record in this case.
61.1 Before appreciating the evidence based on audio
recordings, collected by prosecution, I must mention here relevant
law, governing the appreciation of tape recorded statements.
(i). In Ram Singh & Ors. Vs. Col. Ram Singh [AIR 1986
SC 3], Hon’ble Supreme Court laid down the conditions for
admissibility of tape recorded statements as under:-
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(1) The voice of the speaker must be duly identified by the
maker of the record or by others who recognize his voice. In
other words, it manifestly follows as a logical corollary that
the first condition for the admissibility of such a statement is
to identify the voice of the speaker. Where the voice has been
denied by the maker, it will require very strict proof to
determine whether or not it was really the voice of the
speaker.
(2) The accuracy of the tape recorded statement has to be
proved by the maker of the record by satisfactory evidence
direct or circumstantial.
(3) Every possibility of tampering with or erasure of a part
of a tape recorded statement must be ruled out otherwise it
may render the said statement out of context and, therefore,
inadmissible.
(4) The statement must be relevant according to the rules of
Evidence Act.
(5) The recorded cassette must be carefully sealed and kept
in safe or official custody.
(6) The voice of the speaker should be clearly audible and
not lost or distorted by other sounds or disturbances.
(ii). In Anvar P. V. Vs. P. K. Basheer & Ors. [(2014) 10
SCC 473] wherein three Judges Bench of Hon’ble Supreme
Court held that “certificate u/s 65-B of Indian Evidence Act is
necessary for admissibility of secondary evidence of electronic
records. It was further held that the safeguards provided u/s 65-
B are to ensure the source and authenticity and electronic
records and without such safeguards, whole trial based on
proof of electronic records can lead to travesty of justice”.
CBI Case No.43/2020 Page 118 of 187
(iii). In C. R. Mehta Vs. State of Maharashtra [1993 Crl. L.
J. 2863], it was held that “if the tape recorded evidence is to be
acceptable, tape must have been sealed at earliest point of time
and not opened except under the orders of Court”.
(iv). In Anil Kumar Tito @ Anil Kumar Sharma @ Titto
Vs. State NCT of Delhi [2015(8) LRC 297(Del), it was held
that “where the accuracy of tape recorded statement is not
proved by satisfactory evidence, tape recorded conversation
does not stand the test of requisites spelt out by Apex Court in
the case of Ram Singh (supra)”.
61.2 So, in the wake of above law, it has to be appreciated,
whether speaker whose voice was recorded, was able to identify his
own voice and whether he identified the voice of the person/ persons
with whom he had communicated. It has to be appreciated, whether
there was possibility of tampering or eraser of a part of tape recorded
statement. The sealing of said recordings also is of grave importance.
The voice of the speaker must be clearly audible and must not be lost
or distorted due to other disturbances.
61.3 Besides aforesaid aspects, I have to appreciate, as to
whether said recordings and its transcripts were in the same line, as
was the case of prosecution or whether they indicated something else.
In other words, I had to appreciate, whether said recordings and
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transcripts proved the fact that accused persons had made
conversations, based on demand of bribe amount from complainant or
whether they indicated that SI Rajender Sharma had given loan
amount of Rs.20,000/- to complainant, which SI Rajender Sharma
was demanding along with interest from complainant? Those were the
two extremes, which were based on rival contentions of prosecution
and accused persons.
61.4 Keeping in mind above law and understanding,
pertaining to tape recorded statements, I am proceeding further.
61.5 Record revealed that audio recordings of conversations
were recorded in SD cards, placed in DVRs on 24.01.2020,
25.01.2020 & 28.01.2020.
61.6 After going through the said audio recordings and
transcripts, I found some of them relevant, which I am mentioning, in
verbatim, in my subsequent paragraphs. The transcripts which are not
mentioned in this judgment were found by me to be inconsequential
and/ or irrelevant for deciding issue in hand.
61.7 To start with, I find that on 24.01.2020, verification
proceedings were conducted, as noted in verification memo
Ex.PW3/2. Those verification proceedings were conducted, for
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verifying the allegations of complainant, made by him in his
complaint Ex.PW3/1.
61.8 Said verification proceedings reflected that on
24.01.2020, SI Vikrant Tomar along with team members had gone to
the office of A-1. On reaching there, complainant along with
independent witness Nitin Kumar, reached in the office A-1, where
certain conversation took place between complainant and A-1. They
are mentioned below :-
A-1 Jo tene karan hai kar de Compl Batauge to sahi A-1 Tereko bataya hai maine, aur tu apane hisab se bata de, aur tu
apne hisab se bata de, main aur suitable bitha dunga, main
suitable bata dunga, haan ji yeh peshkash kari hai, batau to
approval kar de
Compl 10 main ho jayega, 10, kara lo kuch kam batti, kitten take main
ho jayega
A-1 meri maan to raha hai nahi, tu 15 ek de diyo, main tek ke de
dunga, main tek ke dekhta houn uske hath main
Compl wo na mane isse kam
A-1 kaun, main keh to raha houn, main de ke dekh lunga
Compl acha
A-1 15 uske hath main de dunga ki yeh diya haiun usne, dekh lo
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A-1 aaj le bhi lete hain na teri joining kal ke dikha dunga
Compl Acha
A-1 baat yeh hai
Compl Acha
A-1 teri joining pahle ki dikha dunga wo mere hath main hai
Compl theek hai, 4 din hogaye diye hue abhi tak inhone kiya nahi
paison ke chakkar main
A-1 tu 20, 20 main se tu baad main de diyo wapis, main tere kahne
se kar raha houn, wohi pakad lega, ye hai
Compl acha, last date main yeh kam he wo karte hain na
A-1 maal le aa
Compl kal milun usse, parson ya leke he ayoun, leke aaun
A-1 mujhe uski tension na do, main usi date pe karwa dunga
Compl theek hai.....
Compl satha sath unko le ke ayounga bat to karenge samne
A-1 koi dikkat nahi
Compl aur kay, matlab 3 baje baad nahi milte pahle
61.9 Above mentioned conversation between complainant and
A-1 indicated that complainant was talking to A-1. Said conversation
further indicated that complainant was asking A-1, if his work would
be done for “10”. A-1, on the other hand, was asking complainant to
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give, “15”. The conversation also reflected A-1 telling complainant
that A-1 would show joining of complainant on the next day and also,
that he could show the joining of complainant in earlier date as it was
within the hands of A-1. It also reflected, A-1 telling complainant
“Maal le aa”.
61.10 Above mentioned conversation only probabilized the
facts viz., that A-1 was demanding bribe amount; that “10”, “15” and
“20” have to be construed as Rs.10,000/-, Rs.15,000/- & Rs.20,000/-
respectively; that A-1 projected to complainant that he had power to
mention the desired date of joining of complainant and that A-1 not
isolating himself from the conversation. The said conversation,
nowhere talked about any loan amount, being given by SI Rajender
Sharma to complainant or complainant asking A-1 to request SI
Rajender Sharma to waive off the interest amount. Testimonies of
prosecution witnesses revealed that expressions “10”, “15” and “20”
had to be construed as Rs.10,000/-, Rs.15,000/ & Rs.20,000/-. Apart
from said conclusions, nothing else can be concluded, with respect to
said numbers.
61.11 Aforesaid audio conversations were recorded in SD card,
fixed in a DVR. Same were kept in a plastic cover and were marked
as Q-1 in CO-05/2020. There is no evidence or probability of said
DVR and SD card, being tampered with by anybody till the time, they
were brought on record. PW3, who was the complainant himself,
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identified the introductory voice of independent witness Nitin in said
SD card, which was recorded in audio file no.200124_1437. The
transcript of the said introductory voice was compared with the said
audio voice and on comparison, both were found matching. PW3
identified the transcript of said voice of Nitin as Ex.PW3/3. Besides
that, there was another audio file in the said SD card which was
200124_1530. That file was played in the Court and PW3 identified
his own voice and that of A-1. The transcript of the conversation
between complainant and A-1 was compared with the said audio
voice and on comparison, both were found matching.
61.12 Based on oral testimony of PW3, as noted above, I find
that A-1 had conversation with complainant on 24.01.2020, in the
manner, noted above. That conversation only proved the fact that A-1
was demanding bribe amount of Rs.20,000/- from complainant, in
lieu of giving posting to complainant. Based on said appreciation and
conclusion, CBI rightly registered case against A-1.
61.13 This brings me to the audio recordings of conversation,
recorded on 25.01.2020. It was the said day when trap was laid by
CBI to arrest A-1, red handed.
61.14 On 25.01.2020, trap team of CBI left CBI office for
going to the office of A-1. After reaching the office of A-1, one DVR
containing fresh SD card was put with complainant in ‘switched on’
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mode and he was asked to meet A-1. Complainant met A-1 and SI
Rajender Sharma on that day. His conversations with A-1 and SI
Rajender Sharma were recorded in SD card, fixed in a DVR which
was put in a sealed envelope, Ex.Q-2 after conclusion of proceedings.
The SD card was produced in the Court and it was played. Said SD
card was found containing six audio files. PW3 identified the voices
of concerned persons in said audio files. Details of the same are
mentioned below, in tabular form:-
(i) 2001125_1226 PW3 identified the voice of independent
witness Nitin Kumar in said audio file.
The transcript of the audio recording
was exhibited as Ex.PW3/8.
(ii) 2001125_1230 PW3 identified the voice of independent
witness Naveen Bhardwaj in said audio
file. The transcript of the audio
recording was exhibited as Ex.PW3/9.
(iii) 2001125_1358 PW3 identified the voices of SI
Rajender Sharma and PW3 himself in
said audio file.The transcript of the
audio recording was exhibited as
Ex.PW3/10.
(iv) 2001125_1416 It was not played in the Court.
(v) 2001125_1417 PW3 identified the voices of A-1, A-2,
ASI Rameshwar and PW3 himself in
said audio file. The transcript of the
audio recording was exhibited as
Ex.PW3/11.
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(vi) 2001125_1528 PW3 identified the voices of A-1 and
PW3 himself in said audio file. The
transcript of the audio recording was
exhibited as Ex.PW3/13.
61.15 Transcripts of said audio files were compared with the
audio recordings and they were found matching. So, contents of
transcripts matched the audio recordings, mentioned above.
61.16 In the said transcripts, I am referring to some of them,
which are relevant for adjudication of this case, in verbatim, below :-
(Complainant talking to SI Rajender Sharma, on 25.01.2020)
…..Compl Hanji…..Bauji keh rahe the, kuch sewa chahiye
apko, woh kar deteSI Rajender Sharma Sewa karni hai to, uske sath karo….
…..Compl Unhone kaha, Rajender bauji ne kaha, 20000 rupay
de do mere ko….
SI Rajender Sharma Mere ko nahi pata, usse baat kar
Compl Woh to aap hi ka naam le rahe the
SI Rajender Sharma Mere paas post nahi hai, jab post hogi to hum laga
denge, woh daroga se pucho…..
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(Complainant talking to A-1, on 25.01.2020)
A-1 Main tere kal samjhaya tha, chaar aadmi ke saamne tu kehne
lag raha hai…….
Compl Post hi to kaha hai -
A-1 Bahut sayana ban raha hai, kuch bharosa nahi rakh raha
Compl Main to apko dekhne aa raha ki gadi khadi hai ki nahi
A-1 Woh to gussa kar rahe hai, ki main nahi join karunga, isko
apne kisi aur Ward me join kar lega
Compl To bauji ko pata nahi ki kya ho gaya, dekhte hi gussa kha
rahe hai woh
A-1 Tune yeh kya keh diya unko
Compl Maine kya kuch bhi nahi kaha unko.....
A-1 Tere ko samjhaya nahi tha maine
(Complainant talking to A-1 around 4.55 PM on 25.01.2020)
A-1 Ha bhai, kya kahani hai teri, tu jada samajhdar ban raha hai,
to tu neu bata de, main jada samajhdar ban raha hu
Compl Meri kya baat ho gayi
A-1 Matlab koi baat nahi hui, ab jab tere ko kal baith ke paath
padha diya, tu phir bhi nahi samajh raha, iss cheez ko, koi
kahega apne muh te……… yeh seedha jake unse baat kar
raha hai….. deal kar raha hai ussi se….
CBI Case No.43/2020 Page 127 of 187
(A-1 talking to ASI Rameshwar (PW7) & Complainant)
…..A-1 Tere ko kal samjha bhi diya maine kaha bhai, iss type ka
aadmi na hai woh, woh mere se kahega, tere se nahi
kahega….
Rameshwar Inse kaha ke, kya matlab (PW7) A-1 Phir Rameshwar Kahega tumse, tumse join karana hai, kar lo (PW7) .....A-1 Woh to aise keh raha hai ki mere pe kya keh raha hai yeh
aake – chaar aadmiyo ke aage paise yun keh raha –
paise maang rahe ho mere se…
Compl Main to yun hi kahi thi ke bauji to ek baar keh rahe the,
mil lena…….
Rameshwar Kaun hai.....
(PW7)
A-1 Khatam kar do na matter
Rameshwar Hamare yaha post nahi hai.......kuch bhi likh sakta hai,
(PW7)
woh unki headache hai, kya likhega bhai
Compl Jo maang raha hai, de to rahe hai
A-1 Tu to puch raha hai bhai, kaha de raha hai
Rameshwar Ki aap maang rahe ho
(PW7)
Compl Pata nahi kya keh rahe, maang rahe ho
A-1 Aur kya, usne kahi hai, chaar aadmiyo ke beech me keh
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raha hai, iste maine yun bhi keh diya ki tere late ho raha
to pehle ki joining dikha dunga, phir bhi sayana ban
raha hai, Inspector ke paas ja raha hai.
Compl Bauji, maine parso bhi aapse kaha tha ki aap bauji ke
sath chale jana, ki theek main sath chal dunga
A-1 Teri phir kaise himmat ho gayi, Inspector se kehne ki
phir, yun bata mujhe tu – teri kaise himmat ho gayi, paiso
ke baare me, kehne ki
…..A-1 De dunga bhai abhi letter, Dhan Singh ke paas hai
A-1 Jo batane ki nahi thi, woh bhi bata di maine isko baat
– main kaha ki yeh aise character ka aadmi hai, yeh tere
se direct nahi bolte, phir bhi nahi samajh me aaya isko,
kal tere samne phone maara, maine nahi maara.
Compl Main kya shaan patti dikhai hai A-1 Inspector se kyu mila..... A-1 Ki main waha khada tha.....chaar aadmi ke peeche, mere
se nu keh raha hai, ki nu kar lo – nu kar lo – main kahi
ki mujhe pata hi nahi hai, kya matter hua, kya nahi hua,
tune mera naam kaise liya, ki main le raha hu
A-1 Yeh hota hi hai – aur ek bata de – Inspector deta hai –
deal kaun karta hai - yeh bata de mujhe
Compl Aap karte ho -
A-1 Hum hi karte hai na - ki paise kaun deta hai - Inspector
deta hai kabhi – Inspector hamare se chodh dega –
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hamare se leta hai Inspector – tumhare se kisi te nahi
leta……
A-1 Pakad usko Dhan Singh ko.....
A-2 .....aur bhi paise lagenge, yeh.....
Compl Ha toh phir, toh seedhe uski ko do na - nu keh aap chal
rahe ho, Inspector ke paas chal rahe ho
A-2 Nu keh ke de raha hai, usko le le
Compl 15000 rupay de raha hu.....
A-2 15
Compl Haan.....dunga
A-2 Dono ke hi hai
Compl Haan
A-2 Matlab yaha ke aur waha ke, dono ke hi hai.... Phir ke
karu, abhi 15 bol du.....
Compl Haan, 15 bol do
(A-2 calling Complainant)
A-2 Hello - Sir 15 - hai - phir bhi dekh lete - chal to
rehan do – theek hai, pata hai na usko – haan, 15 hi to
bol raha hai – theek – theek – theek hai
Compl Kya keh rahe hai –
A-2 Nu kahe ki 5 aur lega
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Compl Kal to keh raha tha ki 15 de do
A-2 .....20 hazaar
Compl To main to 15 hi le aaya hu
A-2 Woh to yeh keh raha hai - 20 lunga... 20 le raha hai na
Compl Mere paas to 15 hi hai
A-2 To 20 hi keh raha, woh to
Compl Chalo to sahi, 15 to do usko
A-2 15 nu bola hai, na manega woh - phone to aaya abhi
uska
Compl Kya keh raha
A-2 Nu keh raha, 15 me na manega - pure 20 lega
Compl 15 deke dekh lena - baat to karo - usse
A-2 Baat hi hogi
(Complainant walking towards CBI team)
A-1 Bhai Sharma ji hai naaraz
Compl Aacha, lo aap unko yeh to de do - bolo, main 20 unko kar
dunga - somwar ko
A-1 Kal baat karunga
Compl Somwar ko kar dunga baki paise
A-1 Kal woh hari jhandi dega, tabhi lunga na main
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Compl Kya keh rahe ho ab yeh
A-1 Woh baat hi nahi kar raha unse yaar - maine tere ko kaha
to tha
Compl Maine kya galti kari - maine to usse pucha hi tha - main
to -
A-1 Kamaal kar raha hai tu - galti nahi maan raha tu - chal
kal aao - kal karenge
61.17 Above mentioned conversation between complainant,
accused persons, Rameshwar and SI Rajender Sharma, indicated
following facts :-
that SI Rajender Sharma, nowhere demanded any money
from complainant and he never asked complainant to give any
bribe to A-1;
that Rameshwar also nowhere demanded any bribe from
complainant;
that A-1 was talking to complainant, thereby demanding
bribe amount;
that A-1 was annoyed as complainant had directly met SI
Rajender Sharma;
that A-1 had belief that A-2 will convince complainant to
pay bribe amount and that is why he asked A-2 to talk to
complainant;
CBI Case No.43/2020 Page 132 of 187
that A-2 was interested in complying with directions of
A-1 and A-2 infact did his best to convince complainant to pay
bribe amount to A-1;
that A-2 informed A-1 about his conversation with
complainant and obtained response of A-1, over phone which
indicated that A-1 & A-2 were sailing in the same boat, having
common objective of receiving bribe amount from
complainant;
61.18 Finally, trap proceedings were again conducted on
28.01.2020 when complainant went to the office of A-1, where he met
A-1 & A-2. Their conversations were recorded in SD card, fixed in a
DVR. Relevant transcripts of said conversation, which were also
identified by complainant in his testimony, are mentioned in verbatim
below :-
Compl Aree Dhan Singh ji
A-2 Haan
Compl Kal apka phone aaya tha - kapil sir se milne ke liye - aaj
mila doge kya -
A-2 Milne ke liye aaoge
Compl Haan
A-2 Aaja, keh de, khade hai yahi
Compl Abhi aaunga main ded-do baje ke aas-paas
A-2 Ded-do baje
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Compl Haan
A-2 Theek
(6.20 onwards)
Compl Kal phone aaya tha uska
A-1 Kal - woh to aaj kaha hai duty ke liye.....
Compl Aacha, mere kaam ke liye.....
A-1 Ek baar Inspector se mil le
Compl Chalo..... mil lete aap bhi mil lete sath me.....
A-1 Baat karu
Compl Haan
A-1 To wait kar tu - helmet de jaldi
61.19 Above mentioned conversation, indicated following
facts:-
that A-1 did not dispute the fact that complainant had
received a call, one day prior to 28.01.2020 for meeting A-1 in
the office;
that A-1 knew the work which complainant was
requesting;
CBI Case No.43/2020 Page 134 of 187
that A-1 was hesitant, in talking to the concerned
regarding the work of complainant and that is why, he asked
complainant, “baat karu”.
61.20 The above mentioned conversation indicated presence of
above mentioned possibilities only. If A-1 wanted to mediate between
complainant and SI Rajender Sharma with regard to alleged loan
transaction, then why was he hesitant? Surprisingly, in all the
conversations, he had with complainant, he did not specify as to how
he wanted to settle alleged loan transaction between complainant and
SI Rajender Sharma. A-1 never explained as to what SI Rajender
Sharma wanted. He did not ask complainant as to what was the
proposal of complainant for settling alleged loan transaction with SI
Rajender Sharma. So, the whole defence of A-1 based on his claim
that he was mediating the issue of loan transaction, between
complainant and SI Rajender Sharma, remained a farce. I did not
believe the said defence to be probable.
61.21 Besides that, I find that A-1 and A-2 never tried to isolate
themselves from the conversation with complainant, which was based
on bribe amount of Rs.20,000/-. Their conversation with complainant
indicated that they were hiding something. If everything was legal,
then why both accused persons were trying to convince complainant
to pay Rs.20,000/-. If there was nothing illegal, then why A-1 was
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CBI vs. Kapil & Anr.
annoyed when complainant met SI Rajender Sharma directly? Why
A-1 or A-2 never expressly said to complainant that they will ask SI
Rajender Sharma to waive off the interest amount? Why A-1 used the
expression, “Deal”, while talking to complainant? Why A-1 was
interested in forging documents with regard to joining date of
complainant? All the said questions remained unanswered during
trial. Accused persons should have answered them by cross-
examining prosecution witnesses or by giving explanations in their
Statements under Section 313 CrPC or in their defence by examining
themselves. They failed on all the said occasions, much to their loss.
As such, absence of answers to said questions, only probabilized the
allegations of complainant. The behaviour of accused persons, in the
wake of above mentioned conversation, remained dubious. It never
gave the impression of a behaviour of a bonafide and truthful person,
placed in their situation. This conclusion, did not help the cause of
accused persons.
61.22 Further, I find that complainant, who was examined as
PW3 by prosecution, in his testimony deposed that audio recordings
were recorded in fresh DVRs and SD cards. The DVRs were switched
on and switched off, by CBI officer, at the relevant time, when
verification proceedings and trap proceedings were conducted. He
categorically deposed that SD cards were sealed after recordings by
CBI. In his presence, the envelopes containing those SD cards viz.,
Ex.PW3/5, Ex.PW3/12 and Ex.PW3/16 were opened. Those
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envelopes were in sealed condition, when they were opened in the
Court. Accused persons failed to give any suggestion, regarding those
envelopes or SD cards, being tampered, by anybody, prior to them
being produced in the Court. The transcripts of the conversations were
found matching with the audio recordings.
61.23 Besides that, I find that PW13 Sh. Amitosh, who was the
expert from CFSL, had testified that he had received the exhibits for
examination, in sealed parcels, marked as Q-1, Q-2 & Q-3, S-1, S-2,
S-3 & S-4 in DVR in RC 03(A)/2020 and DVR used for specimen
voice in RC 03(A)/2020. After receiving said sealed parcels, he
opened them and had found SD cards Ex.Q-1 to Q-3 and Ex.S-1 to
S-4. Ex.Q-1 to Q-3 contained audio files of the conversations,
recorded during verification and trap proceedings in this case. Ex.S-1
to S-4 contained audio files of specimen voices of complainant, SI
Rajender Sharma and accused persons. After doing necessary
examination, he had prepared report Ex.PW13/1 (colly). The said
envelopes were again re-sealed by him with his official seal and had
returned the same, back to CBI. In his presence, in the Court, the
envelopes, containing DVRs and SD cards having conversations and
specimen voices were opened, when his testimony was recorded. He
identified the DVRs and the envelopes along with SD cards, when
they were taken out from the said sealed envelopes. He identified the
seals of his office as ‘AA’ on the said envelopes and his own
signatures at point Y.
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61.24 The Investigating Officers also deposed on the same
lines, as were the depositions of PW3 and PW13, regarding recording
of conversations, specimen voices and sealing of the said electronic
record.
61.25 So, at no stage, I found that there was any tampering with
said electronic record or its sealing, being done by somebody. Said
electronic record contained conversations/ voices, which were
properly recorded and thereafter sealed. They were kept properly by
CBI, prior to bringing to Court. As such, I found said electronic
record to be proper and complete, bereft of any tampering.
61.26 Above mentioned audio recordings were played in the
Court. Complainant and other prosecution witnesses concerned who
had participated the proceedings when said audio recordings were
recorded, identified their respective signatures on the transcripts,
which were prepared during investigation. Complainant identified his
own voice and that of concerned persons, including accused persons
in said audio recordings when played in the Court. The audio
recordings were compared with the transcripts, during investigation
and during trial. They were found matching.
61.27 The net result is that evidence, based on audio
recordings, is found by me to be trustworthy and reliable. Its
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appreciation and conclusion, based on it, only supported prosecution
version.
APPRECIATION OF CFSL REPORT
62. Prosecution also relied upon CFSL Report Ex.PW13/1.
The said report was based on the comparison of specimen voices of
Rameshwar, SI Rajender Sharma and accused persons with their
voices which were recorded on 24.01.2020, 25.01.2020 &
28.01.2020. The specimen voice of Rameshwar was recorded vide
memo Ex.PW6/1. The specimen voice of SI Rajender Sharma was
recorded vide memo Ex.PW6/2. The specimen voice of A-2 was
recorded vide memo Ex.PW6/3. The specimen voice of A-1 was
recorded vide memo Ex.PW6/4. PW6 – Rajan Kumar, in whose
presence those specimen voices were recorded by SI Sumit Kumar,
had identified his signatures at point A, mentioned in those memos.
PW6 was an independent witness, who was posted as Junior Assistant
in the Office of RCS. He testified that brass seal, which was used for
sealing the said memos, was carried by him, after it was used in the
said proceedings. He identified his voice and that of the persons
which were recorded by CBI through said memos when SD cards,
containing those audio files were played in the Court. I have already
appreciated the testimony of PW6 in preceding paragraphs, which
needs no repetition. Suffice it is, to conclude that recordings of
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specimen voices by CBI during investigation vide aforesaid memos,
were correctly done.
62.1 Those specimen voices, recorded in SD cards viz., S-1 in
RC-3(A)/2020, S-2 in RC-3(A)/2020, S-3 in RC-3(A)/2020 and S-4
in RC-3(A)/2020 along with SD cards, containing conversations
between complainant, accused persons, Rameshwar Dayal and SI
Rajender Sharma, recorded during verification and trap proceedings
viz., Q-1 in CO-05/2020, Q-2 in RC-3(A)/2020 and Q-3 in
RC-3(A)/2020 were sent to CFSL by CBI vide letter Ex.PW12/3. That
letter noted that said exhibits were sent in sealed manner, for analysis.
It also requested CFSL, to compare the voices of persons, recorded in
SD cards during investigation, with their specimen voices.
62.2 The CFSL Report, noted that voices of accused persons,
Rameshwar and SI Rajender Sharma, recorded during investigation,
matched with their specimen voices. Details of the same, in tabular
form, are mentioned below:-
S.No. Specimen Name of the Result of CFSL Remarks
Voice person
1. S-1 Rameshwar S-1 was compared with Mentioned
the questioned voice in para 8 of
marked as Q-2 and the opinion
matches the same at page 12CBI Case No.43/2020 Page 140 of 187
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2. S-2 Rajender S-2 was compared with Mentioned
Sharma the questioned voice in para 8 of
marked as Q-2 and the opinion
matches the same at page 12
3. S-3 Accused S-3 was compared with Mentioned
Dhan Singh the questioned voices in para 8 of
marked as Q-2 & 3 and the opinion
matches the same at page 12
4. S-4 Accused S-4 was compared with Mentioned
Kapil the questioned voices in para 8 of
marked as Q-2 & 3 and the opinion
matches the same at page 1262.3 So, based on said report, from CFSL, it was proved that
voices of above mentioned persons, were recorded by CBI during
investigation. It only supported the case of prosecution.
62.4 The report Ex.PW13/1, was proved by PW13, Amitosh
Kumar, who had prepared the same. He identified his signature on the
said report at point A. He was an expert, competent to prepare said
report. I have already appreciated his testimony and have concluded
that he was a trustworthy witness.
62.5 Nothing was culled out by accused persons, by cross-
examining PW13 which could have indicated that exhibits, he had
resealed, were tampered in any manner. This witness refuted the
suggestion of him deposing falsely. He explained the details of said
report, in his testimony. He refuted the suggestion that auditory
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analysis of voice samples is based on short term memory process and
depends purely on a practitioner’s personal capability of auditory
perception and understanding of articulatory and acoustic phonetics.
He explained that he had used Speech Science Lab software for
segregating the words, used for analyzing the words from exhibit Q-1
for A-1. He testified that he had no knowledge of the case, prior to
analysis of exhibits, which indicated that he was not a tutored witness.
62.6 So, PW13, duly proved the report Ex.PW13/1. Through
the testimony of PW13, as such, accused persons failed to create any
doubt over said report. The report, as such, cannot be doubted, as it
was prepared by a government servant and there is a presumption of
correctness of said report, as per law of evidence. The said
presumption was not rebutted by accused persons by cross-examining
PW13.
62.7 The net result is that CFSL Report Ex.PW13/1 was duly
proved by prosecution. The report is based on scientific analysis by an
expert. Exhibits to CFSL by CBI were received by CFSL in sealed
condition. The contents of the audio recordings, matched with the
transcripts, which are placed on record by prosecution. As such, no
doubt can be raised against said report. I find the said report to be
correct, based on scientific analysis, being prepared by PW13.
Aforesaid conclusion only supported prosecution version.
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LAW RELATING TO STATEMENT OF ACCUSED UNDER
SECTION 313 CRPC
63. Before appreciating statement of accused persons, I must
mention here, relevant law, pertaining to interpretation of such
statements of accused persons.
63.1 Object of statement under Section 313 CrPC is to put all
incriminating evidence to accused to afford him an opportunity to
explain as to why they cannot be taken against him and to ask him as
to what he has to say about it. At the same time, also to permit him to
put forward his own version or reasons, if he choses in relation to his
involvement or otherwise, in the crime. This is the statement which
accused makes without fear or right of other party to cross-examine
him. If statement made is/ are false, then Court in entitled to draw
adverse inferences and pass consequential orders, as may be called
for, in accordance with law. The purpose is to have a direct dialogue
between Court and the accused. Once such statement is recorded, the
next question is to what extent and consequences such statement can
be used during trial and enquiry. That statement can be used to test the
veracity of the exculpatory of the admission, made by the accused. It
can be taken into consideration, in enquiry or trial, but strictly, it is
not an evidence in the case. It has to be used in conjunction with
evidence adduced by accused. Reliance in this regard is placed on
case laws; Hate Singh Bhagat Singh vs. State of MP AIR 1953
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CBI vs. Kapil & Anr.
SC 468 and Ajay Singh vs. State of Maharashtra (2007) 12 SCC
341.
63.2 Further, when the attention of the accused is drawn to
such circumstances that inculpate him in relation to the
commission of crime and he fails to offer an appropriate
explanation or gives a false answer with respect to the same, the
said act may be counted as providing a missing link for
completing the chain of circumstances. Reliance in this regard is
placed on case law titled as State of Maharashtra vs. Suresh
(2000) 1 SCC 471.
63.3 So, in the wake of above mentioned case laws, it is
clear that statement of accused persons under Section 313 CrPC,
recorded by the Court, has to be appreciated in conjunction with
the evidence, brought on record by accused. In case, the
responses of accused persons are found to be false or
inappropriate, then, it may be treated as missing link in
completing the prosecution story.
63.4 Keeping in mind said understanding of law, I am
proceeding further with appreciation of statement of accused
persons.
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APPRECIATION OF STATEMENT OF A-1 UNDER SECTION
313 CRPC
64. In response to incriminating evidence, put to A-1, he
replied by denying the case of prosecution. He claimed that he along
with complainant were in same MCD Ward and used to communicate
for official purposes. That claim indicated that he admitted his
employment and that of complainant in the same MCD Ward. It also
indicated that he was acquainted with complainant. Further, his claim
that he used to have communication with complainant for official
purposes, was not explained by him in detail. It was a material
omission on his part as complainant had categorically alleged in his
testimony that A-1 had demanded bribe from complainant. Infact, no
suggestion was given by A-1 to complainant, while cross-examining
complainant, to the effect that they used to exchange,
“communication for official purposes”. So, said explanation is not
believed by me to be trustworthy.
64.1 A-1 claimed that some relevant calls in CDRs were not
marked by prosecution but did not specify details of said calls. He
evasively answered by claiming that he cannot say anything about the
correctness of CDR of his mobile phone no.9654397973. Said evasive
responses were not believable and they did not help the cause of A-1.
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64.2 A-1 stated in response to incriminating evidence, put to
him that recordings collected by CBI during investigation were
recorded on a phone and not in a DVR. He evasively answered by
stating that he cannot say as to whether conversation in the
recordings, placed on record, had actually happened on the date,
mentioned therein or on some other day. He claimed that all the
proceedings were fabricated and all the witnesses had deposed falsely
against him. He claimed that transcripts and recordings were
manipulated. With respect to CDR/ CAF record and with regard to
audio recordings, he either stated that he did not know about them or
claimed those records as false. As such, he did not explain the reason
as to why CBI would file false case against him. He did not explain
the extent of manipulations, done by CBI in the records. His evasive
manner of answering the questions also did not help his cause. He
failed to explain as to why prosecution witnesses deposed against
him. Therefore, A-1 failed to give probable and reasonable
explanation to the incriminating evidence, which was put to him, for
seeking his response. His Statement under Section 313 CrPC,
therefore, did not help his cause.
64.3 A-1 had led defence evidence by examining DW1 &
DW2. Those defence witnesses, placed on record attendance register
of the relevant period, when verification and trap proceedings in this
case, had taken place. Those attendance registers reflected attendance
of complainant and PW – Rameshwar Dayal in the office. Now, A-1,
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in his statement under Section 313 CrPC, had claimed that as per the
attendance sheet of complainant, complainant was present on duty at
all times and he could not have been simultaneously present at two
places, 20 kms apart, at the same time. While, replying so,
complainant did not specify, as to which period specifically, he was
referring, with regard to the attendance sheet of complainant. He did
not say that complainant could not have moved out of the office with
the permission of higher-ups, for joining investigation in this case.
Besides that, he did not depose anything about the presence of PW –
Rameshwar Dayal with CBI team, during investigation of this matter.
So, by not referring to those facts, his statement, remained incomplete
and it did not help his cause.
64.4 A-1, answered question no.280, in his statement under
Section 313 CrPC, in detail. Some relevant excerpts from the said
reply, is mentioned here, in verbatim as, “as far as, money is
concerned, that the same was to be handed over to SI Rajender
Sharma. It is also clear that the reduction in amount was also to be
allowed/ disallowed by him. He has not even been named a witness
in this case…..”. The said response clearly indicated that A-1
admitted the factum of money transaction, which was involved in
present case. The said response negated the theory of A-1
communicating with complainant with respect to ordinary office
related issues. Now, as per A-1, based on his defence, put to
prosecution witnesses, money was taken by complainant as loan from
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SI Rajender Sharma and that money had to be returned by the
complainant to SI Rajender Sharma with interest. That was the precise
defence of A-1. Since, prosecution witnesses did not admit the said
defence, put to them, by way of suggestion, so it was incumbent upon
A-1 to have led defence evidence, in support thereof. Before leading
defence evidence, A-1, in his statement under Section 313 CrPC,
should have given detailed response, pertaining to said loan
transaction between complainant and SI Rajender Sharma. He should
have explained as to how, he came to know about said loan
transaction and why it was not specifically mentioned in all the
communications between him and the complainant, recorded in this
case. He should have explained, as to how, he got the authority, to
mediate between complainant and SI Rajender Sharma, regarding the
said matter. He failed, on all accounts. He did not answer and explain
any of the above mentioned aspects. Therefore, his said explanations,
given in his statement under Section 313 CrPC, were not probable and
believable.
64.5 A-1 did not explain, in his statement, as to why,
prosecution witnesses had deposed falsely against him, though, he
had claimed that those witnesses had deposed falsely against him.
Further, he answered that important documents were destroyed /
removed from the case file and entire case was based on false and
manipulated evidence. While answering so, he failed to give details of
the documents, which were destroyed/ removed from the case file. He
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failed to explain as to how, evidence was manipulated by prosecution
against him.
64.6 So, based on aforesaid appreciation, I find that statement
of A-1 under Section 313 CrPC, did not help his cause.
APPRECIATION OF STATEMENT OF A-2 UNDER SECTION
313 CRPC
65. So far as A-2 is concerned, majorly, he also gave
response, based on denial and on the basis of want of knowledge, to
the incriminating evidence, put to him. He claimed that he was falsely
implicated in this case on the behest of IO and his conversations with
complainant were misrepresented in this case.
65.1 As such, A-2 did not explain as to what interest IO had
against him, for falsely implicating him in this case. A-2 did not
specify the name of exact IO who had falsely implicated him which
did not make his explanation probable and reasonable. Coupled with
the same, A-2 did not explain as to how his conversations with
complainant were “misrepresented” in this case?. Failure on his part
to explain said relevant aspects did not make his defence probable.
65.2 Besides that, I find that A-2 had led defence evidence, in
the shape of DW1 & DW2. The shortcomings in the statement of A-1
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with respect to DW1 & DW2 are already highlighted by me, in my
preceding paragraphs. Since, A-2 had relied upon the same defence
evidence, so, said shortcomings were applicable to the statement of
A-2 also.
65.3 Surprisingly, A-2 did not give a detailed reply, just like
A-1 had given, when A-2 was asked as to why this case was filed
against him. He only answered the said question by stating that he
was falsely implicated in this case on the behest of IO and his
conversations with the complainant were misrepresented. Why he was
falsely implicated and how his conversations with complainant were
misrepresented, were never explained/ answered by him. It made the
said claims of A-2, baseless.
65.4 Further, in response to Que No.7, 8 & 280, which were
put to A-1 under Section 313 CrPC, A-1 replied that complainant had
approached him, so that, he can sort out the financial dispute between
complainant and SI Rajender Sharma. Complainant wanted that SI
Rajender Sharma should reduce the interest amount, on the loan,
which SI Rajender Sharma had given to complainant. He denied that
he ever spoke to SI Rajender Sharma about the due amount to be paid
by the complainant. He tried to settle the said dispute between
complainant and SI Rajender Sharma and therefore, had discussions
with complainant, regarding which CBI has placed electronic record.
Further, he explained that by commenting that complainant can do,
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whatever complainant pleases, did not mean that complainant had to
pay something, rather it meant that complainant can distribute sweets
or give party, in view of complainant becoming a permanent
employee. He also claimed that there was a misunderstanding
between SI Rajender Sharma and complainant on the quantum of
amount. As per him, various witnesses knew about the financial
transactions between complainant and SI Rajender Sharma. Lastly, he
claimed that original complaint of complainant was destroyed and
friend of complainant namely Virender Singh was not brought as a
witness by CBI. Both the said aspects, as per A-2, also created doubt
regarding the veracity of prosecution version.
65.5 Above mentioned explanation of A-1 was vague in
nature. It did not meet out questions viz., What were the terms &
conditions of financial transactions between SI Rajender Sharma and
complainant? Why complainant approached A-1 only leaving aside
other staff in the department to settle the dispute of financial
transaction with SI Rajender Sharma? Why complainant who had
taken alleged loan from SI Rajender Sharma, directly did not
approach him for settling the dispute by going directly to him? Which
all witnesses knew about the said financial transactions between
complainant and SI Rajender Sharma? In what capacity and for what
reason, A-1 tried to settle the dispute between complainant and SI
Rajender Sharma? Why A-1 did not use the expression of “loan” and
“interest” while communicating with complainant? Why A-1 asked
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A-2 to talk to complainant? Why A-1 did not examine Virender
Singh, if he was a relevant witness? Why the aspect of complainant,
distributing sweets on account of him becoming a permanent
employee, as was explained by A-2, was not put to complainant,
during trial when complainant was cross-examined by him?
65.6 Absence of answers with respect to said aspects did not
make the defence of A-1, as noted above, probable. So, aspects with
regard to SI Rajender Sharma, argued by A-1, stands dismissed as
they are not relevant.
65.7 Based on the appreciation of prosecution witnesses, I find
that neither, IO had any false motive to implicate A-2, falsely in this
case nor conversations of A-2 with complainant were misrepresented.
The conversations were clear and no other colour can be given to
those conversations, except that A-2 demanded bribe amount from
complainant, with the consent and agreement of A-1. Therefore,
Statement of A-2 under Section 313 CrPC, did not help his cause.
APPRECIATION OF DEFENCE EVIDENCE
66. Accused persons examined two witnesses, in their
defence.
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66.1 DW1 – Pooran Chand was an official witness, who had
brought summoned record viz., Attendance Register of SDMC for the
period from 16.10.2019 to 16.01.2020, pertaining to Ward No.03(S),
Raja Garden. The copy of relevant pages i.e. attendance for the period
16.12.2019 to 15.01.2020 and 16.01.2020 to 15.02.2020 were
exhibited as Ex.DW1/1 (colly) & Ex.DW1/2 (colly) respectively.
66.2 DW2 – Virender Singh was another official witness who
had brought summoned record viz., Attendance Register of
Rameshwar Dayal, Assistant Sanitary Inspector, Ward No.03(S),
DEMS, SDMC, Raja Garden, Delhi, for the month of October 2020,
specifically for the dates 07.10.2020 to 10.10.2020. Copy of relevant
pages was exhibited as Ex.DW2/1.
66.3 Accused persons should have explained in their defence,
as to why they had examined aforesaid witnesses in their defence.
They should have examined themselves for giving said explanation. It
was necessary as said explanation would have helped me in
appreciating the above mentioned records. Since, it was not done by
accused persons, so said record, produced by DW1 & DW2 lacked
probative and reasonability value.
66.4 It was only during course of arguments, that Ld.
Counsels for accused persons argued as to why they had examined
said witnesses in the defence of accused persons.
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66.5 So far as, DW1 is concerned, it was argued that
attendance register record Ex.DW1/1 (colly) & Ex.DW1/2 (colly)
reflected that from 16.12.2019 to 15.01.2020 and from 16.01.2020 to
15.02.2020, respectively, complainant was present in his office in
Ward No.03 (S), Raja Garden, Vishal Enclave. It was argued that it
means that complainant had not gone to CBI office on 24.01.2020 or
25.01.2020 or 27.01.2020 or 28.01.2020, when CBI had conducted
verification and trap proceedings.
66.6 With regard to DW2, it was argued that this witness had
placed on record attendance register, pertaining to the attendance of
Rameshwar Dayal, who was working as Assistant Sanitary Inspector,
Ward No.03(S), DEMS, SDMC, Raja Garden, Delhi. The attendance
record Ex.DW2/1, pertained to the period from 07.10.2020 to
10.10.2020. So, it was argued that said witness had not visited CBI
office, during the said period. It means that his statement was not
recorded by CBI under Section 161 CrPC on 10.08.2020 in CBI
office.
66.7 Aforesaid arguments were not tenable. Reason being, that
there remained possibility of above witnesses visiting CBI office,
after marking their presence in attendance registers. As such, there
was no evidence, to the effect that aforesaid witnesses i.e.
complainant and Rameshwar Dayal, continued to remain in their
respective offices, during whole time as per their attendance records.
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Even otherwise, it was not suggested to complainant or Rameshwar
Dayal, by accused persons when those witnesses were cross-
examined, that they had not visited CBI office in view of the fact that
their attendance records contradicted them. Therefore, said defence
was not believed by me to be trustworthy. I discarded it accordingly.
APPRECIATION OF DEFENCE ARGUMENTS ON BEHALF
OF A-1
67. Ld. counsel for A-1 argued various aspects, based on
which, he sought acquittal of A-1. His arguments are put in specific
headings, below, for the purpose of getting clarity :-
(a). Role of SI Rajender Sharma – Various aspects, with respect to
role of SI Rajender Sharma, were highlighted by way of written and
oral arguments by A-1. They were viz., that complainant had financial transactions with SI Rajender
Sharma and those transactions were twisted, by CBI, in present
case;
that conversations between the parties, which were recorded, were
not complete;
that complaint of complainant was guided to achieve objective of
threatening SI Rajender Sharma and it was not a genuine
complaint;
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that the questioning with SI Rajender Sharma was not placed on
record by CBI;
that departmental action against SI Rajender Sharma was not
placed on record;
that SI Rajender Sharma was not examined by prosecution though
he was a material witness;
that SI Rajender Sharma was not made an accused;
that recommendation letter for enquiry of SI Rajender Sharma was
not placed on record;
that circumstances in which SI Rajender Sharma was removed
from being charge-sheeted, not explained by CBI;
that CDR of SI Rajender Sharma was not placed on record.
67.1 All the above aspects were not relevant for the purpose of
appreciating role of A-1 in this case. Even if it is believed that CBI
had intentionally not implicated SI Rajender Sharma in this case, then
also, evidence which CBI has placed on record, cannot be dismissed
by me. The evidence which was collected by CBI, was relevant and
that was what this Court had to appreciate. Evidence which was not
brought on record by CBI, is not relevant, for the purpose of deciding
the guilt of A-1.
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67.2 If A-1 thought that SI Rajender Sharma was a material
witness, then he could have examined him in his defence. He did not
do so, for reasons best known to him.
67.3 Ingredients of offences with which A-1 was charged by
this Court, have no legal connection with the non-implication of SI
Rajender Sharma.
(b). Authority of A-1 – It was argued that A-1 had no authority to
provide any posting to complainant. Same was known to complainant.
As such, A-1 never used the word “bribe”. It was complainant only
who was attempting to handover money to A-1 which A-1 never
accepted.
67.4 Above mentioned argument, again was not tenable. If
A-1 had no authority to give posting to complainant, then why despite
hearing the request of complainant regarding posting, he isolated
himself from the said discussion. The transcripts mentioned in
verification memo Ex.PW3/2, Ex.PW3/4, Ex.PW3/8, Ex.PW3/9 &
Ex.PW3/10, only mentioned about the factum of complainant seeking
his posting. Those transcripts which matched audio recordings and
which were identified by PW3, nowhere mentioned that A-1 ever
claimed that he cannot give any posting to complainant.
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67.5 Further, non-usage of the expression, “bribe”, did not
save A-1. In his conversation with complainant, I find that expression
“Sewa” was used. I also find that he had used the following
expressions, as recorded in SD card in Q-1, CO05/2020;
Jo tene karan hai, kar de;
Meri maan to raha hai nahi, tu 15 ek de dio, main tek ke
de dunga;
15, uske hath me de dunga, ki yeh diye hai usne;
Aaj le bhi lete hai na teri joining kal ke dikha dunga;
Teri joining pehle ki dikha dunga, woh mere hath me hai;
Tu 20, 20 me se, tu baad me de dio wapas, main tere
kehne se kar raha hu;
Maal le aa.
67.6 I also find that A-1 had used following expressions, while
communicating with complainant on 25.01.2020:-
Matlab koi baat nahi hui, ab jab tere ko kal baith ke
paath padha diya, tu phir bhi nahi samajh raha, iss cheez
ko, koi kahega apne muh te……… yeh seedha jake unse
baat kar raha hai….. deal kar raha hai ussi se….
Tu to puch raha hai bhai, kaha de raha hai
Jo batane ki nahi thi, woh bhi bata di maine isko baat -
main kaha ki yeh aise character ka aadmi hai, yeh tere se
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direct nahi bolte, phir bhi nahi samajh me aaya isko, kal
tere samne phone maara, maine nahi maara.
Kal woh hari jhandi dega, tabhi lunga na main.
67.7 Above mentioned expressions, used by A-1 only
indicated that he was talking about “bribe”. No other interpretation
can be given to said expressions, when considered, as a whole, in the
light of conversations, placed on record.
(c). Hash Value not submitted to CFSL – Ld. Counsel for A-1
argued that prosecution failed to place on record hash value of the
electronic evidence, collected during investigation. So, he challenged
the veracity of audio recordings, collected by CBI during
investigation.
67.8 In order to appreciate above noted argument, we must
know, as to what is the significance of “Hash Value”.
67.9 Based on literature, on the said subject, I find that hash
value plays a significant role in deciding the authenticity and integrity
of data/ evidence in the digital world. It is known as fingerprint of
data which is a crucial factor for authenticating the integrity of data. It
also plays important role in the validation of forensic processes and
equipments, used for the forensic examination. Its admissibility has
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increased, over the years, as it leads to a high degree of accuracy, for
confirming, whether two records or files are a match or dissimilar.
67.10 Section 3 of Information Technology Act, 2000 (in short
“IT Act“) also supports the international accepted hash function as
the unique and reliable method to authenticate the integrity of data, as
emerging from the explanation of Section 3, which provides – for the
purposes of this sub-section, “hash function” means an algorithm
mapping or translation of one sequence of bits into another, generally
smaller, set known as “hash result” such that an electronic record
yields the same hash result every time the algorithm is executed with
the same electronic record as its input making it computationally
infeasible – (a). to derive or reconstruct the original electronic record
from the hash result produced by the algorithm; (b). that two
electronic records can produce the same hash result using the
algorithm.
67.11 Rule 3, 4 & 5 of IT Act provide the use of the hash
function in authentication of information by digital signature and in
creation and verification of digital signature and further provides that
the electronic record was unaltered, which is known to be the case if
the hash result computed by the verifier is identical to the hash result
extracted from the Digital Signature during the verification process.
The rule 6 of the IT Act recognizes the MD5 & SHA-2 as the
accepted standard digital hash function.
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67.12 Above mentioned literature and law under Information
Technology Act, 2000, as such, highlights the significance of hash
value of an electronic record. At the same time, it does not mandate
that in the absence of hash value, the electronic record has to be
dismissed by the Court, in totality. Admittedly, CBI did not place on
record hash value of the audio recordings, it had collected during
investigation. The issue, which needs adjudication is, whether in the
absence of hash value, electronic record, collected by CBI in this
case, was relevant and admissible?
67.13 In this case, the fact that CBI had collected conversations
between accused persons and complainant, which included
conversations with SI Rajender Sharma and Rameshwar Dayal, with
regard to the complaint of complainant, based on bribery, indicated
that said electronic evidence, was relevant. That evidence, pertained
to the fact-in-issue, involved in this case, based on the claims of
bribery being demanded by accused persons, raised by complainant.
So, CBI rightly collected that evidence.
67.14 With regard to admissibility of said evidence, I find that
Section 65-B of IEA is the relevant section. Sub-Section 4 of said
Section 65-B, IEA, is a condition, precedent to the admissibility of
electronic record in evidence. That Section mandates how information
contained in an electronic record, which is printed on a paper, stored,
recorded or copied in optical or magnetic media, produced by
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computer, shall be made admissible in any proceedings, without
further proof or production of the original.
67.15 So, Section 65-B IEA talks about how in the absence of
original, electronic record can be made admissible in Court
proceedings.
67.16 In present case, original SD cards, in which
conversations were recorded, were produced in the Court. So, there
was no need for compliance under Section 65-B IEA with respect to
said SD cards.
67.17 Coming to the aspect of relevance of hash value in
present case, I find that A-1 did not give any suggestion to any of the
prosecution witnesses, to the effect that in the absence of hash value,
A-1 was prejudiced to any extent. He did not give any suggestion to
any of the prosecution witnesses to the effect that in the absence of
hash value of audio files, recorded in SD cards, those SD cards, as
such, cannot be believed to be true reproduction of the original
conversations. He did not give any suggestion, to the effect that,
CFSL prepared its report on the basis of false electronic record,
supplied to it or that CFSL had received tampered electronic record
from CBI. Absence of those specific suggestions, made the case of
A-1, weak, vis-a-vis above mentioned aspect of hash value, argued by
him.
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67.18 Apart from that, prosecution through testimony of PW12,
gave explanation as to why hash value with regard to audio
recordings, was not taken during investigation. PW12, who was one
of the Investigating Officer in this case, explained in his cross-
examination that he had simply asked from CFSL vide Que No.7 in
letter Ex.PW12/3, as to whether micro SD cards were compatible with
the DVR. He further explained that he had not taken the hash value of
the SD cards because IO copy of SD cards was prepared by Write
Blocker in the presence of independent witnesses during trap
proceedings and original SD cards were sealed then and there, with
CBI Brass Seal under the signatures of independent witnesses. That
explanation, as such, was not unreasonable and/or improbable. A-1
did not give any suggestion, contrary to the said explanation, which
made the said explanation, tenable.
67.19 PW13, who was the concerned expert from CFSL, who
had given his report Ex.PW13/1, again was not given any suggestion,
to the effect that, SD cards, he had examined, were tampered with,
prior to examination or those SD cards contained false information.
PW13 explained in his cross-examination that he cannot comment
about, whether without hash values, it is not possible to check
whether files were copies by CBI, using a Write Blocker or not. He
deposed that other technical experts in his office, can explain the
same. So, testimony of said expert, did not help the cause of A-1.
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67.20 Lastly, I find that it was A-1, who had raised the issue of
non-supply of hash value by CBI to expert of CFSL. It was Ld.
Counsel for A-1 who had claimed that due to non-filing of hash value
of SD cards, case of prosecution failed. So, A-1 should have come up
with clear and cogent defence, based on non-filing of hash value of
SD cards. It was incumbent on him, to have examined defence expert
in said field, as expert, examined by prosecution viz., PW13, did not
throw light on the said aspect, due to lack of knowledge.
67.21 So, based on aforesaid appreciation, I find that, one, A-1
failed to raise clear and precise case, based on benefit, he had got,
legally due to non-filing of hash value and second, that he did not lead
evidence in support of his said probable defence.
67.22 Arguments with respect to hash value, raised by A-1,
therefore, were discarded by me, based on above conclusion.
(d). Inconsequential arguments – Ld. Counsel for A-1 argued
certain points which by themselves were inconsequential, having no
bearing on the merits of this case. Those arguments were viz.,
that original complaint of complainant was destroyed by
prosecution;
that prosecution witnesses deposed falsely;
that recordings seemed to have been done on phone;
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that CDR of SI Rajender Sharma was not collected by CBI;
that there was no sound in entire trap proceedings;
that FSL had wrongly filed report, supporting prosecution;
that there was no site plan;
that various documents were not filed by prosecution viz.,
recorded investigation of SI Rajender Sharma, handing over
memo, made by PW15 to PW12, recorded investigation of A-1,
recommended action letter against SI Rajender Sharma and
internal documents that decided not to charge-sheet Rajender
Sharma;
that “soni” word was not found in recording;
that hash value was not submitted to CFSL.
67.23 Above mentioned arguments, again, did not make the
prosecution doubtful.
67.24 The fact that original complaint of PW3 was destroyed,
by itself did not make the prosecution case doubtful. PW3 himself
admitted that original complaint which he had written, was destroyed
when he went to the office of CBI. As per him, complaint Ex.PW3/1
was written by him, afresh, as CBI officers had directed him to do so.
PW3 explained, in his testimony, that contents of hand-written
complaint, which he had taken to CBI, were almost similar to
Ex.PW3/1, which was written in the presence of CBI officials. That
deposition, sealed the fate of argument, based on tearing of original
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complaint of complainant. It is brought on record through the
testimony of PW3 that contents of complaint Ex.PW3/1 were similar
to the contents of complaint which was torn in CBI office. No
suggestion was put to PW3 by accused persons, highlighting false
motive of prosecution, in tearing of the original complaint of
complainant.
67.25 Further, it was argued that non-collection of CDR of SI
Rajender Sharma and non-filing of site plan by prosecution made the
prosecution case doubtful. Those aspects were of significance, in the
eyes of Ld. Counsels for accused persons. They were not significant
in the eyes of concerned Investigating Officer of this case and that is
why, they were not brought on record. After considering the record of
this case, I find that said non-collection of CDR of SI Rajender
Sharma and non-filing of site plan, by itself did not create any doubt
in the case of prosecution. Those were aspects, within the domain of
investigation, being carried out by Investigating Officer. If accused
persons wanted to highlight that by not filing said record,
Investigating Officer had caused prejudice to accused persons, then
they should have explained the same by cross-examining the
witnesses and should have given suggestions, based on the same. In
the alternative, accused persons could have led evidence, in support of
their said contentions. They failed on all accounts. It did not make
their defence plausible.
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67.26 Further, claim of accused persons that recordings were
done on phone; that there was no sound in entire trap proceedings and
FSL had filed wrong report, were based on whims only. They were
not supported by any specific reasoning. Therefore, I discarded the
same.
67.27 Lastly, absence of “soni” word in recording and non-
filing of documents, based on investigation, pertaining to SI Rajender
Sharma, again were not relevant aspects, which could have led to
creation of doubts in the evidence, led by prosecution.
67.28 Above mentioned aspects are discarded by me being
irrelevant in nature. They did not make the evidence, brought on
record by prosecution, doubtful.
APPRECIATION OF DEFENCE ARGUMENTS ON BEHALF
OF A-2
68. Ld. counsel for A-2 argued that there were contradictions
in prosecution story regarding the manner in which A-2 had met A-1
and SI Rajender Sharma. He denied that A-2 had demanded any bribe
from complainant. Further, there were contradictions in the testimony
of Rameshwar with regard to the recordings, recorded on 25.01.2020.
He argued that PW9 had not signed complete documents, prepared
during investigation. As per him, PW11 had identified A-2 in
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proceedings, recorded on 28.01.2020 but A-2 was not present on that
day. As per him, Ex.DW2/1 reflected that PW – Rameshwar was in
office on all the four days i.e. from 24.01.2020 till 28.01.2020.
68.1 So far as, above contradictions, highlighted by Ld.
Counsel for A-2 are concerned, I find that those contradictions were
not brought on record, legally. As per the judgment of Tehsildar vs.
State AIR 1959 SC 1012, attention of the witnesses, must be drawn
before contradicting him with the facts. That is required, so that
explanation can be sought from the witnesses, with regard to the
contradictions, highlighted by the defence. In this case, Ld. Counsel
for A-2, while cross-examining prosecution witnesses, failed to draw
their attention with respect to the aspects, deposed by other witnesses
and documents, placed on record. If A-2 had claimed that PW
Rameshwar had called A-2 at a time, which was different from the
record of prosecution, then, attention of the said witness should have
been drawn towards the distinct time period of said meeting, as was
claimed by A-2. Similarly, A-2 should have asked prosecution
witnesses as to when A-2 had met A-1 and SI Rajender Sharma and
based on said replies, should have sought explanation, from the
witnesses. Same was not done by A-2.
68.2 Even otherwise, I must mention here that the said
contradictions, were minor contradictions. Based on said highlighted
contradictions, evidence of prosecution witnesses, cannot be seen as
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abnormal. Said contradictions, at the most, were discrepancies which
did not corrode the credibility of prosecution witnesses. Those
contradictions were natural in nature as prosecution witnesses had
deposed after a considerable gap of time, in the Court since the time,
when verification and trap proceedings had taken place. So, they,
infact, supported the truthfulness of the witnesses, examined by
prosecution. In coming to said conclusion, I am guided by the law laid
down in case laws titled as Prabhu Dayal vs. State of Rajasthan
(2018) 8 SCC 127, Bhagwan Jagannath Markad vs. State of
Maharashtra (2016) 10 SCC 537 and Dharnidhar vs. State of UP
2010 (6) SCJ 662.
68.3 All the aforesaid arguments, at the most, are seen by me
as minor contradictions in the case of prosecution. A-2, as such, failed
to explain, as to why he persisted with convincing complainant to pay
bribe amount on 25.01.2020, as per the audio recordings, which are
placed on record? A-2 failed to explain, as to why he complied with
the directions of A-1 while moving out of the office of A-1 with
complainant on 25.01.2020 and talked to complainant at length
regarding payment of Rs.20,000/-? A-2 failed to explain, as to how he
came to know about Rs.15,000/- / Rs.20,000/-? A-2 failed to explain,
as to what was the context in which he was talking to complainant on
25.01.2020, referring to Rs.15,000/- and Rs.20,000/-? A-2 also failed
to explain, as to why he talked to A-1 on phone and apprised A-1
about the fact that complainant was talking about Rs.15,000/-?Now,
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above questions, were relevant questions. Those were the questions
which A-2 should have explained by giving proper suggestions to
prosecution witnesses and in his statement, under Section 313 CrPC.
He could have examined himself as witness and explained those
aspects. He failed on all accounts.
68.4 Therefore, above mentioned arguments did not help the
cause of A-2.
68.5 Ld. counsel for A-2 also argued that A-2 was a victim, as
he was present at wrong time at wrong place. I am amazed by said
argument. Reason being, that said argument indicates that Ld.
Counsel for A-2 admitted that A-2 was present on 25.01.2020, as was
the prosecution story. It also indicated that Ld. Counsel for A-2
admitted the conversation based evidence, placed on record by
prosecution. As such, playing a victim card, did not absolve A-2 from
the incriminating evidence, which is brought on record by
prosecution, as appreciated above, by me in my preceding paragraphs.
68.6 Besides that, Ld. Counsel for A-2 argued on the same
lines, as were the arguments of A-1. Since, I have already appreciated
the arguments of A-1, so, their appreciation needs no repetition.
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68.7 The net result is that I can scarcely believe the arguments
of Ld. Counsels for accused persons. Those arguments stand
discarded.
CONCLUSION
69. In the light of above mentioned analysis, I find that both
accused persons demanded bribe from complainant, in a concomitant
manner. They were hand-in-gloves with each other. They knew the
amount and the purpose for which, they were demanding that amount.
The amount, accused persons were demanding, was not legal.
69.1 Now, issue arises, whether demand, made by accused
persons, by itself amounted to an offence under Section 7 of PC Act,
1988?
69.2 In order to answer the said question, I must refer to
Section 7 of PC Act, in verbatim. Same is mentioned below :-
7. [Offence relating to public servant being bribed.
[Substituted by Act No. 16 of 2018, dated 26.7.2018.] –
Any public servant who,-(a)obtains or accepts or
attempts to obtain from any person, an undue
advantage, with the intention to perform or cause
performance of public duty improperly or dishonestly or
to forbear or cause forbearance to perform such duty
either by himself or by another public servant; or
(b)obtains or accepts or attempts to obtain, an undue
advantage from any person as a reward for the improper
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or dishonest performance of a public duty or for
forbearing to perform such duty either by himself or
another public servant; or (c)performs or induces
another public servant to perform improperly or
dishonestly a public duty or to forbear performance of
such duty in anticipation of or in consequence of
accepting an undue advantage from any person, shall be
punishable with imprisonment for a term which shall not
be less than three years but which may extend to seven
years and shall also be liable to fine. Explanation 1. –
For the purpose of this section, the obtaining, accepting,
or the attempting to obtain an undue advantage shall
itself constitute an offence even if the performance of a
public duty by public servant, is not or has not been
improper.
69.3 On a plain reading of above mentioned provision, it is
clear that if a public servant obtains or accepts or attempts to obtain
from any person an undue advantage with the intention to perform
any public duty, improperly or dishonestly, then it will amount to an
offence under this Section.
69.4 The expression, “attempt to obtain” needs a closer look.
69.5 In criminal law, there are three stages of a crime and
fourth is the result of these three. Those three stages are; intention,
preparation and attempt.
69.6 A person who commits an offence, firstly, must have an
intention to commit that offence. Thereafter, he prepares for
CBI Case No.43/2020 Page 172 of 187
CBI vs. Kapil & Anr.
committing that offence and proceeds further with an attempt to do it.
If the attempt is successful, offence is committed.
69.7 There is very thin line between the preparation and an
attempt to commit an offence. Undoubtedly, a culprit first intends to
commit the offence, then makes preparation for committing it and
thereafter attempts to commit the offence. If the attempt succeeds, he
has committed the offence; if it fails due to reasons beyond his
control, he is said to have attempted to commit the offence. Attempt
to commit an offence, therefore, can be said to begin when the
preparations are complete and the culprit commences to do something
with the intention of committing the offence and which is a step
towards the commission of offence. The moment he commences to do
an act with the necessary intention, he commences his attempt to
commit the offence. Reliance in this regard is placed on Abhyanand
Misra vs. state of Bihar, AIR 1961 sC 1698.
69.8 So, in the wake of above law, it is clear that once a
person starts doing an act with necessary intention, he is believed to
have attempted to commit that offence.
69.9 So, if a demand of obtaining bribe amount is made by an
accused, it will mean that, that accused had intention to receive bribe
amount from complainant/ victim. It also means that said accused had
expressed himself and in the process, had proceeded further for
CBI Case No.43/2020 Page 173 of 187
CBI vs. Kapil & Anr.
getting his demand realized from complainant / victim. So, demand
made by an accused, would fall in the category of “attempt to obtain
an undue advantage with intention to perform public duty
improperly” within the realms of Section 7 of PC Act, 1988.
69.10 In coming to the conclusion that demand of bribe amount
by a public servant, will constitute an offence under Section 7 of PC
Act, 1988, I am supported by the case laws titled as Prabudh Garg vs.
Special Police Establishment Lokayukta 2020 SCC OnLine MP 174
and Mubarak Ali vs. State of MP AIR 1958 MP 157.
69.11 Now, let us appreciate the facts & evidence of present
case, to decide, as to whether accused persons had demanded bribe
amount from complainant, which tantamount to offence under Section
7 of PC Act.
69.12 In this case, I find that it was not the situation that both
accused persons had simply thought about getting bribe amount from
complainant. It was not the situation that both accused persons had
discussed amongst themselves only and had not contacted
complainant. It was not the situation that accused persons were not
clear about the exact bribe amount, they demanded complainant. It
was not the situation that both accused persons did not work together,
hand-in-hand, while demanding bribe amount from complainant.
CBI Case No.43/2020 Page 174 of 187
69.13 Both accused persons, as such, had intention to demand
bribe amount from complainant as based on said intention, they had
demanded bribe from complainant, as reflected by the audio
recordings, which are placed on record by prosecution and also on the
basis of oral testimonies of prosecution witnesses. Besides that, once
accused persons, expressed themselves before complainant, that they
wanted bribe amount of Rs.20,000/-, they had acted further with said
intention, which amounted to attempt to obtain bribe amount from
complainant. Both the accused persons did try to convince
complainant, in their own ways, by making conversation with
complainant, at length. So, both accused persons, did what was in
their control, to get the bribe amount from complainant. Their said
actions, based on reliable evidence on record, proved that they
attempted to obtain bribe from complainant. Coupled with the same, I
find that A-1 categorically claimed by suggesting prosecution
witnesses that he was not competent to give posting to complainant. If
that is so, then, demand of bribe by A-1 for giving posting to
complainant, amounted to an assurance, which was given by A-1 to
complainant for performing his public duty, illegally. Therefore,
demand of bribe by accused persons, in this case, amounted to an
attempt to obtain bribe from complainant for performing their duty
improperly and dishonestly. It, therefore, amounted to an offence,
punishable under Section 7 of PC Act.
CBI Case No.43/2020 Page 175 of 187
69.14 This brings me to the offence of criminal conspiracy
under Section 120-B IPC read with Section 7 of PC Act with which
accused persons were charged, separately.
69.15 Here, it will be useful to consider the concept of criminal
conspiracy under secs. 120-A and 120-B of IPC. Hon’ble Apex Court
in Kehar Singh & Ors. vs. State (Delhi Administration AIR 1988 SC
1883) had the occasion to appreciate said provisions. I am quoting
relevant paragraphs of the said judgment, below, in verbatim :-
“These provisions have brought the Law of Conspiracy
in India in line with the English law by making the overt act
unessential when the conspiracy is to commit any punishable
offence. The English Law on this matter is well-settled. The
following passage from Russell on Crime (12 Ed. Vol. I, 202)
may be usefully noted:
“The gist of the offence of conspiracy then lies, not in
doing the act, or effecting the purpose for which the
conspiracy is formed, nor in attempting to do them, nor in
inciting others to do them, but in the forming of the scheme or
agreement between the parties. Agreement is essential. Mere
knowledge, or even discussion, of the plan is not, per se,
enough. ”
Coleridge, J., while summing up the case to Jury in
Regina v. Murphy, (173 Eng. Reports 508) pertinently states:
“I am bound to tell you, that although the common
design is the root of the charge, it is not necessary to prove
that these two parties came together and actually agreed in
terms to have this common design and to pursue it by common
means, and so to carry it into execution. This is not necessary,
because in many cases of the most clearly establishedCBI Case No.43/2020 Page 176 of 187
CBI vs. Kapil & Anr.
conspiracies there are no means or proving any such thing,
and neither law nor common sense requires that it should be
PG NO 184 proved. If you find that these two person pursued
by their acts the same object, often by the same means, one
performing one part of an act, so as to complete it, with a
view to the attainment of the object which they were pursuing,
you will be at liberty to draw the conclusion that they have
been engaged in a conspiracy to effect that object. The
question you have to ask yourselves is, “Had they this
common design, and did they pursue it by these common
means-the design being unlawful?”
It will be thus seen that the most important ingredient
of the offence of conspiracy is the agreement between two or
more persons to do an illegal act. The illegal act may or may
not be done in pursuance of agreement, but the very
agreement is an offence and is punishable. Reference to
secs-120-A and 120-B IPC would make these aspects clear
beyond doubt. Entering into an agreement by two or more
persons to do an illegal act or legal act by illegal means is the
very quintessence of the offence of conspiracy. Generally, a
conspiracy is hatched in secrecy and it may be difficult to
adduce direct evidence of the same. The prosecution will of
ten rely on evidence of acts of various parties to infer that
they were done in reference to their common intention. The
prosecution will also more often rely upon circumstantial
evidence. The conspiracy can be undoubtedly proved by such
evidence direct or circumstantial. But the Court must enquire
whether the two persons are independently pursuing the same
end or they have come together to the pursuit of the unlawful
object. The former does not render them conspirators, but the
latter is. It is however, essential that the offence of conspiracy
requires some kind of physical manifestation of agreement.
The express agreement, however, need not be proved. Nor
actual meeting of two persons is necessary. Nor it is necessary
to Prove the actual words of communication. The evidence as
to transmission of thoughts sharing the unlawful design may
be sufficient. Gerald Orchard of University of Canterbury,
New Zealand (Criminal Law Review I974, 297 at 299
explains the limited nature of this proposition:
CBI Case No.43/2020 Page 177 of 187
“Although it is not in doubt that the offence requires
some physical manifestation of agreement, it is important to
note the limited nature of this proposition. The law does not
require that the act of agreement take any particular form and
the fact of agreement may be communicated by words or
conduct. Thus, it has been said that it is unnecessary to PG
NO 185 prove that the parties “actually came together and
agreed in terms” to pursue the unlawful object; there need
never have been in express verbal agreement, it being
sufficient that there was “a tacit understanding between
conspirators as to what should be done.”
I share this opinion, but hasten to add that the relative
acts of conduct of the parties must be conscientious and clear
to mark their concurrence as to what should be done. The
concurrence cannot be inferred by a group of irrelevant facts
artfully arranged so as to give an appearance of coherence.
The innocuous, innocent or inadvertent events and incidents
should not enter the judicial verdict. We must thus be strictly
on our guard. It is suggested that in view of sec. 10 of the
Evidence Act, the relevancy of evidence in proof of conspiracy
in India is wider in scope than that in English Law. Section 10
of the Evidence Act introduced the doctrine of agency and if
the conditions laid down therein are satisfied, the acts done by
one are admissible against the co-conspirators. Section 10
reads:
“10. Where there is reasonable ground to believe that
two or more persons have conspired together to commit an
offence or an actionable wrong, anything said, done or
written by any one of such persons in reference to their
common intention, after the time when such intention was first
entertained by any one of them, is a relevant fact as against
each of the persons believed to be so conspiring, as well for
the purpose of proving the existence of the conspiracy as for
the purpose of showing that any such person was a party to
it.”
From an analysis of the section, it will be seen that sec.
10 will come into play only when the court is satisfied thatCBI Case No.43/2020 Page 178 of 187
CBI vs. Kapil & Anr.
there is reasonable ground to believe that two or more
persons have conspired together to commit an offence. There
should be, in other words. a prima facie evidence that the
person was a party to the conspiracy before his acts can be
used against his co-conspirator. Once such prima facie
evidence exists, anything said, done or written by one of the
conspirators in reference to the common intention, after the
said intention was first entertained, is relevant against the
others. It is relevant not only for the purpose of proving the
existence of conspiracy, but also for proving that the other
person was a party to it. It is true that the observations of
Subba Rao, J., in Sardar Sardul Singh PG NO 186 Caveeshar
v. State of Maharashtra, [1964] 2 SCR 378 lend support to the
contention that the admissibility of evidence as between co-
conspirators would be liberal than in English Law. The
learned Judge said (at 390) :
“The evidentiary value of the said acts is limited by two
circumstances, namely, that the acts shall be in reference to
their common intention and in respect of a period after such
intention was entertained by any one of them. The expression
“in reference to their common intention” is very
comprehensive and it appears to have been designedly used to
give it a wider scope than the words “in furtherance of” in the
English Law; with the result, anything said, done or written
by a co-conspirator, after the conspiracy was formed, will be
evidence against the other before he entered the field of
conspiracy or after he left it . . . . . . .”
But, with respect, the above observations that the
words of sec. 10 have been designedly used to give a wider
scope than the concept of conspiracy in English Law, may not
be accurate. This particular aspect of the law has been
considered by the Privy Council in Mirza Akbar v. king
Emperor, AIR 1940 PC 176 at 180, where Lord Wright said
that there is no difference in principle in Indian Law in view
of sec. 10 of the Evidence Act.
The decision of the Privy Council in Mirza Akbar’s
care has been referred to with approval in Sardul SinghCBI Case No.43/2020 Page 179 of 187
CBI vs. Kapil & Anr.
Caveeshar v. The State of Bombay, [1958] SCR 161 at where
Jagannadhadas, J., said:
“The limits of the admissibility of evidence in
conspiracy case under s.10 of the Evidence Act have been
authoritatively laid down by the Privy Council in Mirza Akbar
v. The King Emperor, (supra). In that case, their Evidence Act
must be construed in accordance with the principle that the
thing done. written or spoken, was something done in
carrying out the conspiracy and was receivable as a step in
the proof of the conspiracy. They notice that evidence
receivable under s. 10 of the Evidence Act of “anything said
done or written, by one of such persons” (i.e., conspirators)
must he “in reference to their common intention.” But their
Lordships held that in the context (notwithstanding the
amplitude of the above phrase) PG NO 187 the words therein
are not capable of being widely construed having regard to
the well-known principle above enunciated.”
69.16 Further, there cannot be direct evidence for the offence of
criminal conspiracy. Express agreement between the parties, as such,
cannot be proved. Court should consider the circumstances, proved to
decide upon the complicity of accused, in cases involving criminal
conspiracy. Reliance in this regard is placed upon the case law titled
as Chandra Prakash vs. State of Rajasthan 2014 (86) ACC 836 (SC).
69.17 Further, a criminal conspiracy is always hatched in
secrecy and it is impossible to adduce direct evidence of the common
intention of the conspirators. Therefore, the meeting of the minds can
be inferred from the circumstances, proved by the prosecution, if such
inference is possible. Reliance in this regard is placed upon case lawCBI Case No.43/2020 Page 180 of 187
CBI vs. Kapil & Anr.
titled as Shiv Narayan Laxmi Narayan Joshi vs. State of
Maharashtra (1980) 2 SCC 465.
69.18 After considering above mentioned observations,
pertaining to the offence of criminal conspiracy, I find that it is not
necessary for the Court, to see proof of two parties coming together
and agreeing to the terms of their common design, for carrying out
execution of the said common design, for the purpose of offence of
criminal conspiracy. Whether two persons had conspired together, can
be appreciated on the basis of acts which they did, one after the
another, for pursuing their common object. Further proof of criminal
conspiracy, more often than not, is based on circumstantial evidence
and not direct evidence. Further, ordinarily, it is difficult for
prosecution to get direct evidence, with respect to the offence of
criminal conspiracy and commission of said offence can be inferred
from the circumstances of a particular case. Things done, written or
spoken by the co-conspirators become relevant under Section 10 of
IEA.
69.19 In the light of above principles and understanding of law,
pertaining to criminal conspiracy, I am now considering the evidence
which is brought on record by prosecution.
CBI Case No.43/2020 Page 181 of 187
70. The facts which were proved beyond reasonable doubt by
prosecution, on the basis of oral testimonies, CDR and audio
recordings and its transcripts are:-
That both accused persons and complainant used to work in the
same Ward of MCD, during the time when verification
proceedings and trap proceedings were conducted by CBI;
Complainant wanted posting after getting regularized and in this
regard, he approached A-1;
A-1 instead of refuting complainant by claiming that he had no
authority to give posting to complainant, indulged in detailed
conversations and those conversations, pertained to demand of
bribe amount of Rs.20,000/-;
A-1 claimed that said bribe amount, had to be paid to SI Rajender
Sharma but there was no proof that SI Rajender Sharma demanded
said bribe amount;
Complainant, without informing A-1, directly approached SI
Rajender Sharma and told him about the demand of bribe, made by
A-1 which SI Rajender Sharma, dismissed;
A-1 got annoyed after knowing that complainant had approached
SI Rajender Sharma directly without taking A-1 into confidence;
A-1 asked A-2 to talk to complainant after going out of the office
of A-1;
A-2 talked to complainant and tried to convince him to pay bribe
amount of Rs.20,000/-;
CBI Case No.43/2020 Page 182 of 187
A-2 talked to A-1 on phone and informed A-1 about the
conversation which A-2 had with complainant;
In the said conversations between accused persons and
complainant, though the word “bribe” was not used as an
expression but expressions like “Sewa”, “Deal”, “15”, “20”,
“peshkesh” and the sentences, “jo tane karna hai, wo kar de…..15
ek de diya……yeh diye hai”, were used.
70.1 Above mentioned facts, which surfaced after trial,
indicated that both accused persons knew about the grievance of
complainant and both of them wanted Rs.20,000/- from complainant,
for giving posting to complainant. The fact that both accused persons
had made conversation with complainant; that A-2 had tried to
convince complainant at the instance of A-1 to pay Rs.20,000/- and
A-2 informing A-1 about the conversation, he had with complainant,
were sufficient proof of existence of criminal conspiracy between
accused persons. No other plausible theory was brought on record by
accused persons by cross-examining prosecution witnesses, by
replying to incriminating evidence, put to them under Section 313
CrPC and by leading defence evidence.
70.2 Prosecution, thus, was able to prove that both accused
persons, individually had demanded a sum of Rs.20,000/- from
complainant as illegal gratification for the purpose of issuing postingCBI Case No.43/2020 Page 183 of 187
CBI vs. Kapil & Anr.
order, pursuant to regularization of services of complainant as Safai
Karamchari, on 24.01.2020 & 25.01.2020.
70.3 In the wake of above mentioned appreciation and
conclusions, can it be said that prosecution was able to prove its case
beyond reasonable doubt. Here, expression “beyond reasonable
doubt” needs to be understood.
70.4 A reasonable doubt is not an imaginary, trivial or merely
possible doubt, but a fair doubt, based upon reason and common
sense. It must grow out of the evidence in the case. If a case is proved
perfectly, it is argued that it is artificial, if a case has come inevitable
flaws because human beings are prone to err, it is argued that it is too
imperfect. Vague hunches cannot take the place of judicial evaluation.
To constitute reasonable doubt, it must be free from an overemotional
response. Doubts must be actual and substantial doubts as to the guilt
of accused persons arising from the evidence or from the lack of it, as
opposed to mere vague apprehensions. While the protection given by
the criminal process to the accused persons is not to be eroded, at the
same time, uninformed legitimization of trivialities would make a
mockery of administration of criminal justice. Exaggeration of the
rule of benefit of doubt can result in miscarriage of justice. Letting the
guilty escape, is not doing justice. Reliance in this regard is placed on
case laws titled as Sheela Sebastian vs. R. Jawaharraj (2018) 7 SCC
581; Bhagwan Jagannath Markad vs. State of Maharashtra (2016)
CBI Case No.43/2020 Page 184 of 187
CBI vs. Kapil & Anr.
10 SCC 537, Chhotanney vs. State of UP AIR 2009 SC 2013;
Ramesh Harijan vs. State of UP (2012) 5 SCC 277, Sucha Singh vs.
State of Punjab (2003) 7 SCC 643 and State of UP vs. Ashok Kumar
Srivastava AIR 1992 SC 840.
70.5 So, in the wake of above mentioned case laws, it is clear
that reasonable doubt means a doubt which is created on the basis of
reason and common sense. It is not to be based on whims of a person.
Few flaws in investigation which do not go to the root of the matter,
cannot be made the basis of acquitting an accused. The rights of
accused, involved in a criminal matter, as such, should not be
protected on the basis of recognizing trivialities in the matter.
70.6 Based on said understanding of law, I find that the oral
testimonies, electronic evidence and expert evidence, led by
prosecution, indicated towards the guilt of accused persons, in this
case. The defence of accused persons, on the contrary, was vague and
incomplete. The doubts in the prosecution story, which were raised by
accused persons, were not probable and believable.
70.7 Further, when we consider the issue of proof of demand
within the meaning of Section 7, it cannot be a simplicitor demand for
money but it has to be a demand of gratification other than legal
remuneration. In this case, demand of money by accused persons was
a demand of gratification other than remuneration.
CBI Case No.43/2020 Page 185 of 187
70.8 Further, in this case, not only complainant and officials
from CBI, rather, independent witnesses had joined investigation and
all of them deposed, on the same lines, as was the case of prosecution.
The uniformity in their evidence, coupled with other corroborating
evidence, as appreciated above, only indicated guilt of accused
persons.
70.9 Therefore, prosecution was able to prove beyond
reasonable doubt that both accused persons had demanded said sum
of money, in pursuance of criminal conspiracy. So, prosecution was
able to prove the charges against both accused persons.
70.10 Both accused persons had claimed defence, based on
their personal knowledge. They should have probabilized their said
defence by examining themselves, once, prosecution witnesses did
not accept their defence. They did not do so. In other words, they
failed to probabilize their defence, based on preponderance of
probabilities.
71. Thus, accused Kapil s/o Late Sh. Om Prakash is
convicted of offence punishable under Section 7 of PC Act. He is also
convicted of offence punishable under Section 120-B IPC read with
Section 7 of PC Act.
CBI Case No.43/2020 Page 186 of 187
72. Further, accused Dhan Singh s/o Sh. Ram Kishan is
convicted of offence punishable under Section 7 of PC Act. He is also
convicted of offence punishable under Section 120-B IPC read with
Section 7 of PC Act.
Announced in the Open Court Digitally signed
by PRASHANT
on 06th August 2025 PRASHANT SHARMA
Date:
SHARMA 2025.08.06
16:10:29
+0530
(Prashant Sharma)
Spl. Judge (PC Act): CBI-15
Rouse Avenue District Court
New Delhi/06.08.2025
CBI Case No.43/2020 Page 187 of 187